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Workers' Compensation Board

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Case # G1266246
Date of Accident: 05/28/2015
District Office: Albany
Employer: City of Kingston
Carrier: Ulster Co Self Insurance Plan
Carrier ID No.: W873509
Carrier Case No.: UCUCW-15-1006
Date of Filing of Decision: 11/28/2016
Claimant's Attorney: Bonacic & McMahon, LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on October 18, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on May 9, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the stress claim should have been disallowed.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim.

The Board Panel majority reversed the decision and established the stress claim.

The dissenting Board Panel member argued that the claim should be disallowed.

In the self-insured employer's application for Mandatory Full Board Review, it argues that Matter of Cook v East Greenbush Police Dep't (114 AD3d 1005 [2014]) is controlling in this case and requires that this claim be disallowed.

The claimant argues in his rebuttal that Cook is distinguishable from this case because the officer in Cook witnessed the shooting of a suspect by a fellow officer, but did not pull the trigger himself.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This is a controverted claim for an acute stress reaction and exacerbation of Tourette's syndrome resulting from an incident in which the claimant, a police officer, shot a suspect in the line of duty. The claimant and the claimant's supervising sergeant testified at a hearing on September 3, 2015.

The claimant testified that he has been a patrolman with the employer since December 2001, and he worked for another police department for nine years before then. The claimant worked the night shift on May 28, 2015, which began at 11:00 P.M. and ended at 7:00 A.M. During that patrol, the claimant was called to a bank to respond to a burglary shortly before midnight in which the suspect was described as wearing a camouflaged mask. After the claimant arrived at the bank, another patrolman arrived and checked the rear entrance while the claimant secured the front door. After the front door was secured, the claimant drove his patrol car towards the back entry when he came upon a person of interest fitting the description of the alleged burglar. The person of interest was walking in the same direction as he was driving, so he drove within fifteen feet of the person and tried to speak with him. When the person did not respond, the claimant stopped his car, exited it and told the man to come to the car and put his hands on the hood. The person then spun around and brought a black automatic pistol to bear on the claimant from twenty-five feet away. The claimant told the person to put the gun down, but he did not comply. The claimant then drew his firearm and shot the person, who immediately dropped his gun. The claimant called in the shooting over the radio. The claimant and the other patrolman then called an ambulance and provided first aide to the person, who survived. According to the claimant, after being shot, the person said he was only a kid and did not want to die.

The claimant testified that after the incident, he was taken to Vassar Brother's Hospital where he was examined and diagnosed with acute stress disorder. He followed up with his primary care physician, and he treats with a psychologist. His current symptoms include insomnia and a worsening of his Tourette's syndrome symptoms. The claimant has had Tourette's syndrome since childhood, but he did not need treatment and avoided medications because of the side effects. The claimant controlled these symptoms before the shooting such that they never affected his ability to work as a patrolman.

The claimant testified that he never fired his weapon in his prior twenty-two years on the job. On cross-examination, the claimant admitted that patrolmen are trained in the use firearms and defensive tactics twice a year. This training is designed to help officers handle dangerous situations. The last such training occurred about two weeks before the shooting. The claimant confirmed that at the time of shooting he was following his training, and the grand jury determined that his actions were justified. The typical calls handled by the department where he worked involved domestic disputes, burglaries, assaults and bar fights.

The claimant's supervising sergeant testified that he had been employed as a police officer with the department since March 1991, and he was promoted to the rank of sergeant in July 2014. The sergeant testified that officers in the department undergo a three day training course twice a year, which includes firearms training. As part of this training, each officer is qualified in firearms use, which includes running through no shoot scenarios. An officer's equipment includes a firearm and Kevlar vest. According to the sergeant, the night shift generally handles noise complaints, domestic disputes, bar fights and burglaries, because the department patrols in a city setting. While a police shooting is not a normal occurrence, the potential for an officer to use his firearm is always present.

Claimant's treating physician, Dr. Heslin, was deposed on September 10, 2015, and testified that the May 28, 2015, incident left the claimant with acute stress reaction, insomnia and an exacerbation of Tourette's syndrome symptoms.

In a reserved decision filed October 13, 2015, the WCLJ disallowed the claim because the claimant did not have stress greater than that which other similarly situated police officers experience. The claimant applied for administrative review.

LEGAL ANALYSIS

It is the claimant's burden to present evidence which shows that the stress "experienced was greater than that which other similarly situated workers experienced in the normal work environment" (Matter of Coleman v Schenectady County Dept. of Social Servs., 80 AD3d 837 [2011] [citations omitted]; see also Matter of Smith v Albany County Sheriff's Dept., 82 AD3d 1334 [2011]).

The Third Department in the Matter of Cook v East Greenbush Police Dep't (114 AD3d 1005 [2014]) held that "the regular course of duty for a police officer - no matter the size of the department - requires that he or she be on notice each day that deadly force may be required to subdue a suspect who is endangering public safety."

In this case, the controlling precedent requires that the claim be disallowed because police involved shootings fall within the scope of a police officer's regular duties. The Third Department in Cook made very clear that this is true no matter the size of the officer's department. In this case, the fact that this officer fired the gun himself rather than spotting for the shooter, as the officer in Cook did, is not dispositive, as the Court in Cook held that the use of deadly force falls within the regular course of duty for a police officer regardless of how frequently it occurs.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding of disallowing this claim.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed October 13, 2015, is REVERSED and the claim is disallowed. No further action is planned by the Board at this time.