NY: Patient Attacks Nurse with Broken Plexiglass: Accidental Disability Retirement Benefits Denied.

CASE FACTS: Joseph Dzwielewski was employed as a nurse-supervisor by the State of New York at a psychiatric facility. On June 15, 1994, a psychiatric patient attempted to assault the nurse when he tried to administer medication to her. According to the nurse the patient "lunged at him with a piece of broken plexiglass." The nurse was able to escape and call for security personnel to restrain the patient. The nurse applied to the State of New York for accidental disability retirement benefits alleging that he was permanently disabled due to "intense work-related depression [and] post traumatic stress disorder." The State denied the nurse's application following a hearing based on a finding that the attempted assault did not constitute an "accident" within the meaning of the State's Retirement and Social Security law. The State issued a final determination to that effect. Nurse Dzwielewski appealed.

COURT'S OPINION: The Supreme Court of New York, Appellate Division, affirmed the judgment below. The court held, inter alia, that an "accident" is a sudden, fortuitous, out of the ordinary and unexpected event that does not result from an activity undertaken in the performance of regular or routine employment duties. Thus, the court concluded, "unless the injury results from an event that would not ordinarily be anticipated in the context of the worker's employment, it cannot be defined as an accidental" injury. Here, the nurse's job duties included encouraging patients to take their medication as well as performing medical treatment on them. The court noted that the nurse's own testimony established that attempted assaults by violent patients Was not only an event that could be anticipated but was a risk inherent in the nurse's employment. Under the circumstances, the court found no reason to disturb the determination denying benefits to the nurse.

Editor's Note: Some might seriously question whether the patient's attack with a piece of broken plexiglass was one of the "expected events" which the nurse-supervisor might expect in the ordinary performance of regular or routine duties. Was this really a risk inherent in the nurse-supervisor's employment? It appears that nurses, particularly those employed in psychiatric nursing, might expect a certain amount of recalcitrant, if not outright combative and assaultive patients. However, is not an attack with piece of broken plexiglass beyond the boundaries of what should be expected? Would it have made a difference if the patient attacked the nurse-supervisor with a knife? A gun? A garrote? Would it have made a difference if the patient seriously wounded or killed the nurse? Dzwielewski v. McCall, 714 N.Y.S.2d 842 --NY (2000)