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FIREFIGHTER’S INJURY FROM TOXIC FUMES UNRELATED TO A FIRE CONSTITUTED AN ACCIDENT ENTITLING FIREFIGHTER TO DISABILITY BENEFITS.

The Third Department, reversing the denial of accidental disability retirement benefits to a firefighter, over a two-justice dissent, determined injury caused by odorless toxic fumes (unrelated to a fire) was an accident within the meaning of the Retirement and Social Security Law. Petitioner-firefighter responded to an emergency at a supermarket where two people were unconscious. It was only after the fact that the presence of carbon monoxide and cyanogen chloride was discovered:

It is well settled that for purposes of the Retirement and Social Security Law, an accident is defined as “‘a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact'” … . “Significantly, it must result from an activity that is not undertaken in the performance of ordinary job duties and that is not an inherent risk of such job duties” … . Petitioner bears the burden of establishing that the event producing the injury was an accident, and respondent’s determination will be upheld where it is supported by substantial evidence … . * * *

We have “held that exposure to toxic fumes while fighting fires is an inherent risk of a firefighter’s regular duties” … . Here, however, unlike our prior cases involving exposure to toxic gases or smoke, petitioner was not responding to a fire that presented the inherent and foreseeable risk of inhaling toxic gases … . The record evidence further reflects that petitioner was neither aware that the air within the supermarket contained toxic chemical gases … , nor did he have any information that could reasonably have led him to anticipate, expect or foresee the precise hazard when responding to the medical emergency at the supermarket … . Matter of Sica v DiNapoli. 2016 NY Slip Op 05420, 3rd Dept 7-7-16

 

RETIREMENT AND SOCIAL SECURITY LAW (FIREFIGHTER’S INJURY FROM TOXIC FUMES UNRELATED TO A FIRE CONSTITUTED AN ACCIDENT ENTITLING FIREFIGHTER TO DISABILITY BENEFITS)/ACCIDENT DISABILITY BENEFITS (FIREFIGHTER’S INJURY FROM TOXIC FUMES UNRELATED TO A FIRE CONSTITUTED AN ACCIDENT ENTITLING FIREFIGHTER TO DISABILITY BENEFITS)/FIREFIGHTERS (FIREFIGHTER’S INJURY FROM TOXIC FUMES UNRELATED TO A FIRE CONSTITUTED AN ACCIDENT ENTITLING FIREFIGHTER TO DISABILITY BENEFITS)/TOXIC FUMES (FIREFIGHTER’S INJURY FROM TOXIC FUMES UNRELATED TO A FIRE CONSTITUTED AN ACCIDENT ENTITLING FIREFIGHTER TO DISABILITY BENEFITS)

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