New York state comptroller Allen G. Hevesi addresses reporters during a recent news conference. Hevesi is involved in the decisions on whether to award tax-free disability pensions to individual police and firefighters.
 
Mary Altaffer/The Associated Press
 
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Only in New York: 3

Disability payments burden taxpayers

By JAY GALLAGHER
Albany Bureau
(Original publication: June 15, 2004)

ALBANY — When a Yates County sheriff's deputy named Loren James slipped on a patch of ice and fell while making a routine patrol stop in Branchport, N.Y., on a January night in 2001, he had no idea that the legal dispute resulting from his injury would start a chain of events that local-government leaders in New York think will cost them millions of dollars.

There had been a rash of business break-ins in the rural Finger Lakes county that holiday season, so Sheriff Ronald Spike had urged his deputies to be vigorous in their nightly rounds. James, then 38 and an 11-year veteran of the force, got out of his patrol car a little before midnight on Jan. 12 to check the Branchport Hardware building on Route 54A.

"I was checking the hardware store when I slipped on the ice," he said. "I tried to grab something to break my fall and that's when I wrenched my back."

He was out of work for almost a year.

Yates County thought that workers' compensation, the state insurance program that pays for the medical bills and a portion of the salary of injured workers, would cover the cost.

But James sued, claiming that under a 40-year-old state law unique in the country that affects only fire and law enforcement workers, he should get his full regular pay of $666.80 per week, tax-free, in addition to medical care.

The county was confident it would win the legal fight because the Court of Appeals, the state's highest court, had issued a ruling in 1999 that was generally interpreted to mean that to get the extra benefit, a police officer or firefighter had to be performing a duty involving "heightened risk," such as fighting a fire or chasing a criminal. Making a routine check didn't seem to fit that category.

Yet in a ruling that surprised municipal officials and lawyers alike, the state's highest court ruled in December that any time a public safety worker is on the job and injured, he or she is eligible for the benefit.

At the same time, the court ruled that a Greenburgh police dispatcher, David Wagman, was eligible for the benefits after he hurt his back trying to move a box of teletype paper with his foot.

The court also ruled that four Nassau County jail guards should get the benefits. They were hurt by:

• walking into a TV hanging from the ceiling;

• opening a door;

• sitting in a chair whose leg collapsed;

• getting hit in the shoulder by a swinging door.

The immediate financial implications of these cases were small. Wagman, for example, was back at work in a week. The James verdict cost Yates County $8,000.

But lawyers agree that the decision means that more firefighters, who are covered by a similar but more lucrative pension plan, will be eligible for the supplemental benefits. Disabled firefighters get full pay, tax-free. When the salaries of working firefighters go up, so do their pension payments. They also get taxpayer-financed medical benefits.

"This could vastly increase our costs because so many more people will be eligible,'' said Linda Kingsley, the city of Rochester's chief lawyer.

Rochester paid about $2 million in the extra pension expenses for firefighters in 2001, out of a statewide total of almost $16 million in supplemental payments, according to the state Conference of Mayors.

The International Association of Fire Fighters could come up with no other examples of states that provide so generous a pension plan. Especially in the wake of the Sept. 11, 2001, terrorist attacks that killed 343 firefighters, few would begrudge firefighters and their families adequate pay and benefits.

Still, the supplemental pension is another unique New York program that helps to make residents of the Empire State the most heavily taxed in the country.

While most of the Rochester firefighters who are getting pension supplements from the city were hurt while fighting fires or on related tasks, Rochester taxpayers are also paying to those who injured:

• a knee stepping off a firetruck;

• a back lifting a heavy object;

• a back moving laundry in a firehouse.

"If someone is fighting a fire and falls off a roof, we'd be crazy not to grant those benefits,'' said Michael DeLong, a Scarsdale official and former village administrator in Pelham. But he said those not injured in the line of duty should not be entitled to the enhanced benefits.

In Pelham, DeLong fought a long, losing battle over benefits for a firefighter who twisted his knee when he slipped on a wet floor while answering a telephone.

"We've been fighting this for years,'' he said. "It traditionally comes up in the Legislature, but it never goes anywhere. They're not going to fight the unions.''

Nor should they, said Charles Morello, president of the state Professional Firefighters Association.

"It doesn't matter what job you're on, whether you're walking in the door of a house on fire'' or waiting at the firehouse, Morello said. "When you punch in, you're on the clock. When a worker becomes injured, he should be eligible for any benefits that are available. It's totally ridiculous and very shortsighted to even consider changing that."

James, now back at work as a Yates County sheriff's deputy, agrees.

"It's good that everybody who works in law enforcement doesn't have to be questioned about how he got hurt," he said. "If he gets hurt while on the job, he should get paid."

There are about 7,200 paid firefighters in the state outside New York City, which has about 13,000 and a separate pension system, Morello said. Their salaries vary from about $45,000 a year in most of upstate to $50,000 to more than $60,000 downstate, he said.

About 5,000 of those firefighters outside New York City work for cities and villages, with the rest employed by fire districts set up by towns that typically have departments that are a mix of paid members and volunteers.

Three have died in duty-related incidents this year, all of them volunteers, according to state figures. In both 2002 and 2003, seven died, with four of them volunteers in each year. Their survivors are eligible for federal and state life-insurance benefits.

There are about 1,100 former firefighters that receive disability pensions ranging from about half to about two-thirds of their salaries, tax-free. The decision on who is eligible for these rests with state Comptroller Alan Hevesi. Generally, the disability does not have to be shown to have happened on the job.

About half of those — 551 — also get the special pension supplement. That extra benefit, when added to the regular pension, equals what they would make if they were still working.

These pensions are typically decided upon by a panel appointed by the local government, and have to be for injuries that occurred on the job.

The supplemental benefits for firefighters were established by the Legislature in 1938 in recognition of the hazardous nature of the work. They were extended to police and other law enforcement officers by the Legislature in 1961 and later years, but with the major difference that the extra benefits end when the injured party gets a pension.

Courts have gone back and forth on what injuries entitle uniformed workers to the extra benefits, lawyers say.

In 1999, in a ruling hailed by local-government officials, the Court of Appeals decided that a Nassau County correction officer who was injured while driving home from a special assignment was not entitled to the extra benefits. The court ruling was interpreted to mean that the officer wasn't entitled to the benefits because his injuries weren't related to "heightened risks'' associated with his law enforcement duties.

Several bills were introduced in the Legislature to remove the "heightened risk'' test, but none passed.

But in December, in the ruling that included the James case, the high court said that its 1999 decision had been misinterpreted by lower courts, and that any injuries sustained while on duty should be covered by the extra benefits.

"The Court of Appeals did for them (police and firefighters) what the Legislature wouldn't do,'' DeLong said.

Municipalities had hoped to shift the cost of the extra pensions to the state pension system in the late 1990s, when the state system was flush with investment earnings. Now, the state system is having troubles of its own because of sagging investment income.

The mayors' group has a bill waiting to be considered by the Legislature that would limit the extra benefits to those hurt while performing a hazardous duty, but so far no lawmaker has stepped forward to champion it, and it's not on Gov. George Pataki's radar screen, either.

"When someone is running into a burning building to try to save someone, you don't want them to worry about how they're being compensated,'' said Sen. Joseph Robach, R-Monroe County, who sponsored a bill to remove the "heightened risk'' test before December's court decision accomplished it. He said the way to help municipalities' budgets this year is to try to bring down their pension-fund contributions.

"It's difficult to get a majority member (of the Legislature) to sponsor a bill that would reduce the scope of this benefit,'' said John Galligan of the mayors' association.