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Last week’s decision by the New York State Court of Appeals, which appears to have changed the landscape in the area of disability benefits for law enforcement employees, is the result of a hard-fought battle born on Long Island and resolved through an East Meadow, N.Y., practitioner. In Theroux v. Reilly and two companion cases, the state’s high court reversed a decision from the Appellate Division, 1st Department, which had required corrections officers injured on the job to demonstrate a so-called “heightened risk” to recover disability benefits under state law. That law, General Municipal Law � 207-c, applies to police officers and other law enforcement officers. The opinion, written by Judge Susan Phillips Read, threw out the heightened risk requirement and instead held that law enforcement employees seeking 207-c disability benefits must now show that their injuries were incurred “in the performance of [their] duties,” according to the Dec. 2 decision. The judges concurring in the decision were Carmen Beauchamp Ciparick, Victoria A. Graffeo, Albert M. Rosenblatt and George Bundy Smith, and Chief Judge Judith S. Kaye. The upshot of the Theroux decision is that law enforcement officers injured in the course of their employment have a lighter burden of proof to bear in recovering the full amount of their salaries until the disability ends or until they are granted disability retirement. The attorney in the lead case representing four Nassau County corrections officers was Wayne J. Schaefer, a partner with East Meadow-based Certilman Balin Adler & Hyman. He said the Court of Appeals’ decision recognizes the dangers inherent in law enforcement work. Schaefer, who has practiced with Certilman Balin since 1996 and became a partner last year, said that once the Court of Appeals granted leave to appeal the Theroux case, he believed his clients had a good chance. At 46, Schaefer focuses much of his work on 207-c matters. In fact, he argued the so-called Balcerak case, a Court of Appeals decision, also from Long Island, that the Theroux court spent much effort in distinguishing. Schaefer said the Theroux decision comes at an important time for the profession. “Police officers and public safety personnel are under more pressure than ever before since 9/11,” he said. “It’s important for people to understand how much this benefit meant to the rank and file police officer.” But municipalities are concerned that the court’s ruling will drain their budgets. Nassau County Attorney Lorna Goodman said the ruling will have a “negative fiscal impact.” “We thought that the court had given a very clear signal in Balcerak that heightened risk was an element in determining the benefit. Evidently, it’s not,” Goodman said. Among several municipal associations filing amicus briefs in the Theroux matter and the companion cases was the New York State Conference of Mayors and Municipal Officials. The group argued, in part, that recovering under 207-c is a benefit in addition to workers’ compensation and should require a stricter standard. “The heightened risk seemed logical to qualify for this enhanced benefit, that you had to be doing something dangerous in police work as opposed to being injured while on the job,” said Edward Farrell, executive director of the New York State Conference of Mayors and Municipal Officials. “It certainly will lead to more officers qualifying for 207-c disabilities.” Theroux involved four corrections officers injured while on duty at the Nassau County Corrections Facility. The injuries did not involve combative situations. For example, one plaintiff injured his eye when he ran into the corner of a television mounted to the ceiling. Another was injured while opening a door to admit inmates into a kitchen. The four plaintiffs had applied for 207-c benefits, won them in an Article 78 proceeding before Nassau County Acting Supreme Court Justice Daniel Martin, but lost them on appeal. EVOLVING LAW Enacted in 1961, General Municipal Law �207-c provides for the payment of the full amount of regular salary or wages to police officers or other covered municipal employees injured “in the performance of [their] duties” or taken ill “as a result of the performance of [their] duties.” The municipality is also liable for all medical treatment and hospital care payments, which continue after retirement. Over the years, the Legislature amended the law to include sheriffs, corrections officers, certain district attorney employees, fire marshals and others. While most municipalities had granted the benefits using the “performance of duties” standard, controversy arose in 1999 with the Court of Appeals’ decision in Matter of Balcerak v. County of Nassau. Indeed, in the Theroux decision, the court noted that Balcerak “dramatically altered” the usual practice in awarding 207-c benefits. In Balcerak, the Court of Appeals considered a matter in which a corrections officer had applied for and received workers’ compensation benefits but was denied 207-c benefits by Nassau County. Gregory Balcerak had been assigned to guard a hospital room at a Nassau County facility and was injured in a car accident when he left. Schaefer represented Balcerak, as the attorney for the corrections officers’ union. He filed an Article 78 action arguing, under collateral estoppel principles, that since the Workers’ Compensation Board had granted Balcerak benefits, the county was bound to award 207-c benefits because he was injured while on duty. “We rejected this argument,” Read wrote in the Theroux decision, referring to the Balcerak case. The Balcerak court, Read noted, held that “these two statutory benefit schemes follow paths of differential interpretation and application.” Read’s Theroux decision further noted that the state Legislature chose different eligibility standards for both benefit types: for workers’ compensation benefits, the standard was “arising out of and in the course of employment” and for 207-c benefits the standard was “in the performance of his duties.” The example the Balcerak court gave as a situation in which an individual might receive workers’ compensation benefits but not those under 207-c was a police officer injured during the department’s basketball practice. The court wrote that the nature of the activities could arise “out of and in the course” of the employment but was not the heightened-risk type arising during the performance of duties related to the criminal justice process. Farrell, with the New York State Conference of Mayors and Municipal Officials, said he was “surprised” that the Court of Appeals decided to consider the Theroux case, since “they had addressed this issue in ’99.” But Read wrote that the 2nd, 3rd and 4th Departments of the Appellate Division, in “knitting together” the illustration and the discussion in Balcerak, had erroneously concluded that 207-c recovery hinged on a showing of heightened risk. The only question presented in Balcerak was the collateral estoppel issue of whether a Workers’ Compensation Board decision to grant benefits automatically entitled individuals to 207-c benefits, Read wrote. She further observed that the Balcerak court, in fact, remitted the case back to the 2nd Department without specifying any standard to use in addressing whether the officer was injured in the performance of his duties. Last week’s decision also referred to the Court of Appeals’ 2002 ruling in Matter of White v. County of Cortland, a decision that “rejected a ‘heightened standard of proof’ to establish eligibility for section 207-c benefits.” The court there stated that 207-c provided benefits to those disabled “in the performance of” or “as a result” of the employees’ job duties. The court did not require the injured worker to “additionally demonstrate that their disability [was] related in a substantial degree to their job duties,” wrote Read, citing White. Therefore, “consistent with White,” the Theroux court concluded that to obtain 207-c benefits, the employee only needed to prove a “direct causal relationship between job duties and the resulting illness or injury.” Finally, the word “duties,” the court wrote, “encompasses the full range of a covered employee’s job duties.” The court reasoned that if the Legislature had intended to restrict 207-c benefits to employees injured when performing specialized tasks, “it easily could have and surely would have written the statute to say so.” Schaefer rejects the criticism that Theroux‘s laxer standard will open the door to trivial claims by law enforcement officers. “The issue of what the Legislature intended, as far as the scope of the benefit, is properly resolved by looking at the statute language. It says: ‘In the performance of his duties.’ ” He added, “ The last thing they need in this environment is to worry about whether they can provide for their families because an administrator may come to the conclusion that specific facts surrounding the injury are not ‘heightened risk.’ “ Dennis J. Saffran, in Mineola, represented Nassau County.

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