McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP Successfully Appeals Case for Injured Correction Officer

McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP (MDASR) has announced that the firm successfully won an appeal on behalf of a Nassau County correction officer who was initially denied disability retirement benefits, despite being injured on the job, which forced him to retire.
 
On March 14, 2011, Ronald DeMaio assisted in breaking up a fight between an inmate and a fellow correction officer who was searching the inmate for contraband. Officer DeMaio subsequently escorted the inmate down a stairwell by holding the inmate’s arm. The inmate pulled away from Officer DeMaio, causing him to injure his lower back.
 
When Officer DeMaio applied for disability, he was denied and requested a hearing and a redetermination. The Hearing Officer upheld the initial decision, stating that Officer DeMaio failed to meet his burden of proof because he had failed to show that the inmate intentionally caused his injury. Officer DeMaio then retained MDASR to represent him on an Article 78 appeal. The firm argued that the Hearing Officer’s determination misstated the applicable legal standard and that the firm’s client needed to prove the injuries came from “any act of an inmate,” but the hearing officer wrongfully found that Officer DeMaio needed to prove that the inmate deliberately caused him harm.
 
On March 31, 2016, the New York State Supreme Court, Appellate Division, Third Judicial Department, ruled that the hearing officer did not properly apply the legal standard for review during the hearing process and committed an error of law in her determination.
 
Sean Riordan, a Partner with the firm, represented Officer DeMaio during the appeal. “Despite what many of the Hearing Officers have recently ruled, the ‘act of an inmate’ that causes the correction officer’s injury does not need to be an intentional act. These rulings are no longer valid,” Mr. Riordan said.
 
The Appellate Division also found that the Hearing Officer failed to provide the proper standard of review, finding that a redetermination is a de novo review, not a substantial evidence review. Mr. Riordan said the Hearing Officer did not take into account all of the evidence before making the determination. “In pension hearings, the Hearing Officer must review the totality of the evidence before it and make a new decision, not merely adjudicate whether the prior application decision was supported by substantial evidence,” he said. “While this procedural ruling appears to be legal semantics, Hearing Officers frequently justify denials on the basis that the Comptroller’s initial determination is supported by substantial evidence without giving the CO a full and fair review of the evidence. This is now also invalid reasoning.”
 
For more information, call (631) 665-0609 or visit www.licomplaw.com.

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About McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP

McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP (formerly known as Sherman, Federman, Sambur & McIntyre) has been dedicated to providing the highest quality legal services to those who cannot afford it for more than half a century. Its mission is to use aggressive representation, combined with creative legal solutions, to protect injured workers against those that would deprive them of their legal rights. Practice areas include Workers’ Compensation Law; Volunteer Firefighter’s Benefits Law; Volunteer Ambulance Workers’ Benefits Law; Social Security Disability Benefits; Municipal Pensions and related matters. The firm has locations in Bay Shore, Riverhead, Garden City, Elmhurst, Bronx, Manhattan and Brooklyn. For more information, call (631) 665-0609 or visit www.licomplaw.com.