| Matter of Sica v DiNapoli |
| 2016 NY Slip Op 05420 [141 AD3d 799] |
| July 7, 2016 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Pat Sica, Petitioner, v ThomasP. DiNapoli, as State Comptroller, Respondent. |
Donald P. Henry, White Plains, for petitioner.
Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel),for respondent.
Garry, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by orderof the Supreme Court, entered in Albany County) to review a determination ofrespondent denying petitioner's application for accidental disability retirementbenefits.
Petitioner worked as a firefighter with the City of Yonkers Fire Department forapproximately 17 years. On September 2, 2001, he was injured when he was exposed toand inhaled colorless and odorless gases—to wit, carbon monoxide and cyanogenchloride—while responding to an emergency at a supermarket. Thereafter, he filedan application for accidental disability retirement benefits based upon, among otherthings, this incident. The application was denied on the ground that the incident did notconstitute an accident within the meaning of Retirement and Social Security Law§ 363. In a careful analysis, the Hearing Officer subsequently determinedthat the incident did constitute an accident, as "[t]he combination of unforeseeable andexigent circumstances made it virtually impossible for [petitioner] to recognize thedanger." Thereafter, respondent ultimately upheld the initial denial, and petitioner thencommenced this CPLR article 78 proceeding challenging that determination.
We annul. It is well settled that for purposes of the Retirement and Social SecurityLaw, an accident is defined as " 'a sudden, fortuitous mischance, unexpected, outof the ordinary, and injurious in impact' " (Matter of Kenny v DiNapoli, 11 NY3d 873, 874 [2008],quoting Matter of Lichtenstein v Board of Trustees of Police Pension Fund of PoliceDept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982]; accord Matter of Schoales vDiNapoli, 132 AD3d 1184, 1185[*2][2015])."Significantly, it must result from an activity that is not undertaken in the performance ofordinary job duties and that is not an inherent risk of such job duties" (Matter of Schultz v DiNapoli,137 AD3d 1454, 1455 [2016] [citations omitted]; see Matter of Schoales vDiNapoli, 132 AD3d at 1185). Petitioner bears the burden of establishing that theevent producing the injury was an accident, and respondent's determination will beupheld where it is supported by substantial evidence (see Matter of Dicioccio v DiNapoli, 124 AD3d 1170, 1171[2015]; Matter of Roth vDiNapoli, 105 AD3d 1183, 1184 [2013]).
Petitioner testified that on the day of the incident, he received a medical emergencycall from a local supermarket reporting an individual experiencing difficulty withbreathing. Upon arriving at the site, petitioner was directed to the walk-in freezer locatedat the back of the supermarket, where he discovered two unconsciousindividuals—one inside the freezer and one outside the freezer. Petitionerimmediately provided cardiopulmonary resuscitation and breathing assistance to theunconscious victim inside the freezer until an ambulance crew arrived to assist. Petitionerexplained that, in the entire course of providing medical services to the victim at thescene, he never smelled, heard, or saw anything that might have indicated that chemicalgases or fumes were involved in the medical emergency. Petitioner's testimony furtherreflected that, although he felt ill after helping move the victims to an ambulance, he didnot learn that chemical gases were present at the scene until he himself was transported toa hospital for medical evaluation.
We have "held that exposure to toxic fumes while fighting fires is an inherentrisk of a firefighter's regular duties" (Matter of Schultz v DiNapoli, 137 AD3d at1456 [emphasis added]; see Matter of Huether v Regan, 155 AD2d 860, 861[1989], lv denied 75 NY2d 705 [1990]; Matter of Daly v Regan, 97AD2d 575, 576 [1983], lv denied 61 NY2d 602 [1984]). Here, however, unlikeour prior cases involving exposure to toxic gases or smoke, petitioner was notresponding to a fire that presented the inherent and foreseeable risk of inhaling toxicgases (see Matter of Schultz v DiNapoli, 137 AD3d at 1456; Matter ofHuether v Regan, 155 AD2d at 861) or smoke (see Matter of Daly v Regan,97 AD2d at 576). The record evidence further reflects that petitioner was neither awarethat the air within the supermarket contained toxic chemical gases (cf. Matter ofSchultz v DiNapoli, 137 AD3d at 1456 n), nor did he have any information thatcould reasonably have led him to anticipate, expect or foresee the precise hazard whenresponding to the medical emergency at the supermarket (see Matter of Murphy v New YorkState Comptroller, 92 AD3d 1022, 1023 [2012]; Matter of Tierney v New YorkState Comptroller, 90 AD3d 1215, 1215 [2011]). The Hearing Officer madeexpress factual findings that petitioner did not learn that chemicals had been involved inthe incident until after it ended. He further found that there was no record evidence tosupport a conclusion that petitioner should have been aware of the odorless and invisiblegas, nor that his training and experience related to chemical exposure should haveprepared him to recognize its presence especially as no evidence suggested that otherswithin the supermarket exhibited symptoms of such exposure. Although the dissentchallenges the conclusion that petitioner could not foresee the presence of the hazard, wefind it highly significant that respondent in no manner contradicted the Hearing Officer'sfinding that petitioner neither could nor should have recognized the danger posed in thecircumstances presented.
In reversing the Hearing Officer's determination, respondent instead relied uponpetitioner's job description, which indicates that he was required to respond to medicalemergencies and to be exposed to hazardous conditions such as fumes and toxicmaterials. The dissent likewise relies heavily upon petitioner's job description andtraining. Taken to its immediate and logical conclusion, however, this position maywholly eviscerate accidental [*3]disability retirementprotection for emergency responders in rescue situations; if a broadly written jobdescription that requires the rescue of individuals in hazardous situations is allowed toreplace a factual analysis of the particular circumstances of each incident, those who putthemselves in harm's way may be left without recourse. Whether an incident is so"sudden, fortuitous . . . , unexpected [and] out of the ordinary" (Matterof Kenny v DiNapoli, 11 NY3d at 874 [internal quotation marks and citationomitted]) that it qualifies as an accident within the meaning of the Retirement and SocialSecurity Law remains a factual issue that should not be determined merely by referenceto job descriptions. Otherwise, emergency personnel will be rendered ineligible foraccidental disability retirement in any rescue situation, without regard to how exigent,unexpected or unforeseeable the circumstances of their injury may be. This cannot havebeen the Legislature's intent in establishing the accidental disability retirement programfor rescue workers.
Accordingly, we find that respondent's determination that the September 2, 2001incident did not constitute an accident within the meaning of Retirement and SocialSecurity Law § 363 is unsupported by substantial evidence in the recordbefore us. As the hearing and determination of respondent under review were limited tothe question of whether that incident so qualified, we decline to address in the firstinstance petitioner's arguments regarding the presumption set forth by Retirement andSocial Security Law § 363-a or the issue of causation (see generally Matter of Quintana vCity of Buffalo, 114 AD3d 1222, 1223 [2014], lv denied 23 NY3d 902[2014]).
Lynch and Aarons, JJ., concur.
McCarthy, J.P. (dissenting). In order to annul respondent's determination, themajority necessarily finds that respondent's conclusion that petitioner suffered from"injuries [that] were the result of a risk inherent in the ordinary course of [petitioner's]duties" was not supported by substantial evidence—that a reasonable mind couldnot reach that conclusion based on the record evidence. We disagree with the majority'sfinding and, therefore, we respectfully dissent.
"This Court is not free to substitute its assessment of the . . . evidencefor that of respondent, whose determinations must be upheld when they are supported bysubstantial evidence" (Matter ofKing v DiNapoli, 75 AD3d 793, 796 [2010] [citation omitted]; see Matter of Schultz vDiNapoli, 137 AD3d 1454, 1455 [2016]). Substantial evidence is "such relevantproof as a reasonable mind may accept as adequate to support a conclusion or ultimatefact, and is less than a preponderance of the evidence, overwhelming evidence orevidence beyond a reasonable doubt" (Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d 494,499 [2011] [internal quotation marks and citation omitted]; see Matter of King vDiNapoli, 75 AD3d at 796). "The standard demands only that a given inference isreasonable and plausible, not necessarily the most probable" (Matter of Ridge Rd.Fire Dist. v Schiano, 16 NY3d at 499 [internal quotation marks and citationsomitted]).
As the Court of Appeals has made clear, in order to find that a petitioner has sufferedan accident for the purposes of accidental retirement disability benefits, it is "critical" thatthe "precipitating accidental event" of a petitioner's injuries is "not a risk of the workperformed" by him or her (Matter of McCambridge v McGuire, 62 NY2d 563,568 [1984]; see Matter of Mirrerv Hevesi, 4 AD3d 722, 723 [2004]; Matter of Jonigan v McCall, 291AD2d 766, 766 [2002]). Therefore, to constitute an accident, "the event must arise fromrisks that are not inherent to [*4]petitioner's regularemployment duties" (Matter ofRoberts v DiNapoli, 117 AD3d 1166, 1166 [2014]; see Matter of Walion v New YorkState & Local Police & Fire Retirement Sys., 118 AD3d 1215, 1216[2014]). Finally, a petitioner bears the burden of proving that his or her injuries were theresult of an accident (see Matter of Walion v New York State & Local Police& Fire Retirement Sys., 118 AD3d at 1215). Accordingly, if the conclusion thatpetitioner's exposure to chemical gases arose from risks inherent in petitioner's regularemployment duties is one that results from reasonable and plausible inferences from therecord evidence, this Court must confirm respondent's determination.
Turning first to the record evidence regarding the scope of petitioner's regularprofessional duties, the record establishes that petitioner was a firefighter tasked withfighting fires and providing emergency medical assistance. The record contains the jobdescription governing petitioner's employment, which opens with the assertion that "[t]hework is of a hazardous nature." Specifically as to petitioner's medical duties, it providesthat "[a]dminist[ration of] emergency first aid treatment to injured persons" is an"ESSENTIAL FUNCTION[ ]" of petitioner's job. According to the same description, theenvironmental conditions in which petitioner was expected to work included "exposureto . . . toxic materials [and] chemicals."
The record also contains proof regarding petitioner's professional training and his useof that training. Petitioner testified that he specifically received training in providingemergency medical aid and in "chemical exposure." Moreover, his testimony establishedthat he regularly responded to medical emergencies, and he also testified that he "mayhave" responded to chemical spill and chemical exposure emergencies in thepast.[FN1]Considering the foregoing proof, uncontested evidence establishes that petitioner wasinformed that his professional duties included providing emergency medical assistance,that he was trained to perform emergency medical assistance and that he did, in fact,provide emergency medical assistance as a part of his job duties. Additional uncontestedproof establishes that petitioner was informed that his job required him to be exposed totoxic chemicals, that he was specifically trained in chemical exposure and that he "mayhave" actually responded to chemical exposure incidents in the past.
Turning to the question of whether petitioner was injured based upon risks inherentin fulfilling the foregoing duties, petitioner received an emergency call reporting a personexperiencing trouble breathing in a supermarket. Upon arrival at that indoor location,petitioner found two unconscious persons in close proximity to one another, bothexhibiting no signs of external trauma. Although unknown to petitioner at the time, thosepersons were in need of emergency medical assistance because they had inhaled carbonmonoxide and cyanogen chloride[FN2] and, in providing emergency aid,petitioner was also exposed to those toxic chemicals. Accordingly, it is undisputed thatpetitioner was injured by the same dangerous condition that [*5]gave rise to the need for his emergency medical assistance,exposure to chemical gases.[FN3] Moreover, petitioner was on notice thathis duties included exposing himself to such dangerous conditions by his job description,his training and his actual professional experiences. Given this record evidence, areasonable mind could conclude that petitioner suffered injuries that were the result ofthe risks inherent in his regular professional duties as a firefighter and emergencymedical assistance provider explicitly tasked with risking chemical exposure andspecifically trained for that risk (see Matter of Schultz v DiNapoli, 137 AD3d at1455; Matter of Purcell vDiNapoli, 81 AD3d 1069, 1070 [2011]; Matter of Pryor v Hevesi, 14 AD3d 776, 777 [2005];Matter of Huether v Regan, 155 AD2d 860, 861 [1989], lv denied 75NY2d 705 [1990]; Matter of Daly v Regan, 97 AD2d 575, 576 [1983], lvdenied 61 NY2d 602 [1984]). Accordingly, we would affirm.
Turning to the majority's decision to the contrary, the majority departs from thisCourt's long-standing recognition that emergency response personnel often have inherentprofessional duties to confront or expose themselves to dangerous conditions and/orpeople (see e.g. Matter of Kellyv DiNapoli, 137 AD3d 1470, 1471-1472 [2016]; Matter of Schultz vDiNapoli, 137 AD3d at 1455-1456; Matter of Fulton v New York State Comptroller, 122 AD3d983, 983-984 [2014], lv denied 24 NY3d 915 [2015]; Matter of Carpenter vDiNapoli, 104 AD3d 1037, 1038 [2013]; Matter of Reynolds v DiNapoli, 97 AD3d 892, 893 [2012];Matter of Jarosz vDiNapoli, 95 AD3d 1500, 1501 [2012]; Matter of Rykala v New York State Comptroller, 92 AD3d1077, 1077 [2012]; Matter of Huether v Regan, 155 AD2d at 861; Matterof Daly v Regan, 97 AD2d at 576; but see Matter of Kelly v DiNapoli, 137AD3d at 1472-1473 [Garry, J., dissenting]). As a direct result, this Court's jurisprudencenow reaches disparate results based upon whether a firefighter inhales toxic gases whilefighting a fire, in which case there is no accident (see Matter of Schultz vDiNapoli, 137 AD3d at 1456; Matter of Huether v Regan, 155 AD2d at 861;Matter of Daly v Regan, 97 AD2d at 576), or whether a firefighter inhales toxicgases while providing emergency medical assistance to people overcome by such gases,in which case there is an accident. Because firefighters who also provide emergencymedical assistance will generally—as is the case here—have equivalentduties to risk exposure to chemical gases while fighting fires as while providingemergency medical assistance, the majority's distinction is arbitrary.
[*6] More generally, we reject the majority's conclusionthat respondent could not reasonably rely on the combined proof of petitioner's jobdescription and his relevant training to reach the conclusion that his injuries fromexposure to chemical gases resulted from risks inherent in the ordinary course of hisduties. It is difficult to imagine proof that is more probative in establishing a petitioner'sinherent professional duties than his or her actual job description. Moreover, anemployer's devotion of time and resources to training an employee as to a particularprofessional risk provides a clear indication of an employer's actual expectationsregarding the employee's duties. Our deferential standard of review in cases such as thismeans little if, in reality, this Court will replace respondent's judgment with its own evenwhen respondent relies on strong objective evidence not subject to hindsight bias indetermining the scope of a petitioner's duties.
Devine, J., concurs.
Adjudged that the determination is annulled, without costs, and matter remitted torespondent for further proceedings not inconsistent with this Court's decision.
Footnote 1:To the extent thatpetitioner provided an ambiguous answer regarding whether he had responded tochemical exposure emergencies in the past, as the party assigned the burden of proof, thatambiguity does not inure to his benefit.
Footnote 2:Apparently, the twopersons were supermarket employees who had been attempting to chemically clean awalk-in freezer.
Footnote 3:We disagree with themajority's assertion that no reasonable mind could conclude that a firefighter withpetitioner's training could have anticipated the possibility that there was a problem withair quality at the scene. Although the chemical gases were odorless, petitioner was onnotice of a person suffering from breathing problems. He found two unconsciouspersons, which removed any reasonable possibility that the etiology of the medicalconditions could be an internal condition unique to one of the individuals, such as a heartattack. Moreover, and considering the proper allocation of the burden of proof topetitioner, the record is bereft of any plausible explanation of a potential cause of theconditions of the two people that was not related to air quality, let alone an explanationof why those potential causes would be more likely than air quality. On its own, the factthat a reasonable mind could conclude that a person with petitioner's training could havereasonably anticipated an air quality problem is a sufficient basis to confirm respondent'sdetermination (see Matter ofScofield v DiNapoli, 125 AD3d 1086, 1087 [2015]; Matter of Bleeker v New YorkState Comptroller, 84 AD3d 1683, 1684 [2011], lv denied 17 NY3d 709[2011]).