Smoke breaks ruled off-duty activity

Smoke breaks ruled off-duty activity Eckerson v State and Local Retirement Systems, 270 AD2d 705, motion for leave to appeal denied, 95 NY2d 756 Significant accidental disability retirement benefits are available to members of the New York State and Local Retirement Systems [ERS] who are disabled as the result of an accident incurred in performing official duties. In the Eckerson case, the Appellate Division considered the issue of what constitutes performing official duties for the purpose of establishing eligibility for accidental disability retirement benefits. Dennis Eckerson, an employee of the Central New York Psychiatric Center, slipped and fell returning from a designated smoking area to the building where he worked. ERS ruled that Eckerson was not in service when he was injured returning from his smoking break and disapproved his application for accidental disability retirement benefits. Eckerson filed an Article 78 petition challenged ERS' determination. Admitting that he smoked a cigarette prior to his fall, Eckerson also testified that he went to the smoking area to conduct work-related business. This conflicting evidence, said the Appellate Division, created a credibility issue for ERS to resolve. The court sustained ERS' conclusion that Eckerson's representation that he went to the smoking area to conduct official business was not creditable. The court also noted that in considering accidental disability retirement applications filed by other ERS members based on a "slip and fall" on their employer's premises, ERS had concluded that the member was not in service for the purpose of eligibility for such benefits in situations where: 1. The employee had not yet reported for work [Farley v McCall, 239 AD2d 779]; 2. The employee was injured during a lunch break [Nappi v Regan, 186 AD2d 855]; and 3. The employee was injured after the work shift had ended [DiGuida v McCall, 244 AD2d 756]. The Appellate Division said that it found nothing irrational in ERS' applying a similar rationale in the case of an injury sustained by an employee during his or her smoke break where the member cannot demonstrate that he or she was conducting official business at the time. On the issue of credibility, frequently the review of an application for accidental disability retirement benefits involves conflicting evidence. In Giebner v McCall, 270 A.D.2d 705 , also decided by the Appellate Division, the court held that where the record contains contradictory medical evidence concerning whether the applicant was permanently disabled, it was within ERS's discretion to evaluate the differing medical opinions and resolve the conflict against the applicant. The Appellate Division applied the same standard in resolving the question of determining credibility in Eckerson's case. .

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