Legal Report

Once again I had the honor and privilege of lecturing to the class of newly appointed sergeants. I was at the Police Academy on Monday, December 26, 2005, with my partner, Victor Fusco, Esq. Topics included incident versus accident for ¾ purposes, performance of duty disability benefits, Workers’ Compensation benefits, Social Security Disability benefits and timely reporting of injuries sustained in the line of duty. This was a very intelligent, dynamic, enthusiastic and interested class. It was a very gratifying experience for me and I hope beneficial for the new sergeants.

The PBA, along with the SOA and DAI, ran informational meetings regarding the World Trade Center (WTC) Presumption Law at the PBA on January 5, and January 12, 2006. These meetings were put together by Pete Paterson of the PBA, Brian Hoesel of the SOA and Nick Ewing of the DAI. Their hard work paid off as evidenced by the excellent attendance at all the meetings. At the meetings, I was joined by my partner, Richard Brandenstein, Esq., and our colleague, Michael Axelrod, Esq., who represents the SOA and DAI. The three police unions are doing everything possible to reach out to all active and retired members and make them aware of the filing requirements for the ¾ WTC Presumption bill. There are strict timelines that must be followed in order to establish entitlement to this benefit.

I want to stress some things that were discussed at the meetings. All active members MUST file a “World Trade Center Notice for Members of the New York State and Local Retirement System” (form RS 6047-N) by June 14, 2007. I suggest that retired members do so also. This form SHOULD BE filed even if the member is not currently sick or symptomatic. This form SHOULD also be filed even if the member spent less than the required 40 hours at any of the designated sites in New York City. Retired members MUST file an application for the benefit BEFORE June 14, 2007. At these meetings I provided an interpretation of the new statute that may have been too optimistic and overly enthusiastic and generous. Because this is a statute dealing with diseases that may not become disabling for many years, possibly even decades, such as asbestosis, it seemed to me there would be no arbitrary time limit imposed on the filing of an application. It turns out that this is NOT the interpretation of the Retirement System.

Instead, the Retirement System is adopting the position that upon leaving the department, the member has ONLY TWO YEARS from that time to file the application. I think my interpretation is an example of good common sense. As in many other areas, particularly regarding “incident versus accident,” I feel the Retirement System is adopting a position which is too narrow, too strict and too damaging to applicants. While there has been some discussion on changing the time limit in which an application must be filed, until such a change is made, if ever, applicants need to be aware of the current deadline when they retire.

Contrast this with the New York City Employees’ Retirement System (NYCERS), which is interpreting the statute in the same way I am. NYCERS is requiring the notice form by June 13, 2007 and the application may be filed at any time after that, even 5 or 10 or 15 years later, whenever the applicant becomes disabled. This is by far the more enlightened interpretation.

It was very nice to see members of MAO at the meeting. A friend, Sgt. Jeannie LoBello came, as did Sgt. Michael Oggeri. The new Commanding Officer of MAO, Lt. Daniel Collins was also present. I believe there will be a new era at MAO with the recent appointment of the new CO. In fact, Sgt. Oggeri assured those present at the meeting that it was MAO’s mission to work with me and to cooperate with me in the best interests of police officers. I want to extend best wishes to Lt. Collins in his new position.

An additional meeting was held on January 18, 2006 for the benefit of Marine Bureau members. I want to thank Delegate John Connor for working very hard to make the Marine Bureau meeting a success as well.

Trustee Robert Rettinger has brought to the attention of the PBA that some members are being contacted by collection agencies regarding unpaid medical bills for Workers’ Compensation injuries. Under the Workers’ Compensation law, the employer is responsible for payment of medical, surgical, chiropractic, physical therapy and other treatment necessitated by a line of duty injury. It is a violation of the Workers’ Compensation law for the health care provider directly or through a collection company on behalf of the health care provider, to accept payment from the injured employee directly. If you receive such a letter simply advise the collection agency that this bill is from a New York State Workers’ Compensation claim and that you are not responsible for payment. Any additional questions should be referred to our office, provided we represent you in the Workers’ Compensation matter. We are presently assisting members with unpaid medical bills and will help you in getting your unpaid bill paid as quickly as possible.

Another problem occurs when a consumer reporting company inaccurately reports this unpaid medical bill as your obligation causing a derogatory item to appear on your credit report. This will have a negative impact on your credit score.

You can and should correct such errors on your credit report. You should obtain a copy of your credit report from the only web site authorized by the FCC to provide it: annualcreditreport.com. Your credit report is provided free of charge. If you find any errors, you should contact the consumer reporting agency and the health care provider that was not paid in writing. You should indicate what information is inaccurate and you should include copies of any back up information you have. You should also provide your name and address and your letter should clearly delineate each item you are disputing and why. You should request that the item be corrected. Your letter should be mailed certified, return receipt requested. Your dispute must be investigated and usually this will be done within 30 days of the receipt of your letter. Your letter will be reviewed by the information provider and the results will be reported back to the consumer reporting agency. If it is found that the disputed information is inaccurate, the information provider will notify all three nationwide consumer reporting companies so credit reports can be corrected.

If your dispute is not resolved at this step, you can request that a statement of the dispute be included in your file and in future reports. You can also request the consumer reporting company to provide your dispute statement to anyone who received a copy of your report in the recent past.

At step two of the dispute process, you must write to the creditor, or other information provider, that you dispute an item. Again, attach copies of all documents that support your position and send it by certified mail.

Once you have alerted the consumer reporting company that you dispute a debt in writing, this initiates the “debt validation process” as described above. You have the right to demand that all debt collection activities be suspended during this process.

Finally, you have the right, under the Fair Credit Reporting Act (FCRA) to sue the consumer reporting agency and/or the information provider in state or federal court for violations of the FCRA. Of course, such law suits are reserved for the most egregious violations of the act and where there are provable, substantial damages. If you win, the defendant may have to pay damages and reimburse you for attorney fees.

In the arena of ¾ or performance of duty disability claims, an issue that may arise involves surgery. I am often asked, “Do I have to have the surgery that my doctor has recommended to win my ¾ case”? The answer is “no, you do not have to have the surgery.” But, the fact that surgery has been recommended can have a huge impact on your case.

Consider the case of Ernest A. Dymnond v. Alan G. Hevesi, a case decided on December 8, 2005 by the Appellate Division, Third Department. Dymond applied for performance of duty disability benefits. His claim was denied by the Retirement System at the hearing level on the grounds that his shoulder condition, a grade III AC shoulder separation “only temporarily disables him from the performance of his duties as a police officer because a safe and reasonable surgical procedure exists to repair the separation, following which physical therapy would restore his ability to fully perform his job duties” (my emphasis).

The Appellate court held that Dymond’s claim must be denied UNLESS Dymond can justify his refusal to have the disability corrected. An orthopedic surgeon who appeared at the hearing at the request of the Retirement System was the only medical witness to testify. He stated that "a simple resection of a half inch of the end of the clavicle or collarbone . . . with some tightening of the ligaments in the area, " followed by physical therapy, would restore petitioner’s separated shoulder to a functional level, allowing petitioner to perform his full and regular duties as a police officer. This medical expert further testified that the surgical procedure was considered minor, reasonable, reliable and safe, presenting little risk to petitioner.” Dymond did not produce a medical witness on his behalf at the hearing. He attempted to prove his case by relying on the documents in the record and on cross-examination of the Retirement System’s expert medical witness. Dymond was not able to overcome the doctor’s sworn testimony and not surprisingly, the Hearing Officer found in favor of the Retirement System.

You do not have to have the surgery. But, if your doctor has recommended surgery, or if the doctor to whom the Retirement System sends you for an examination suggests that there is “minor, reasonable, reliable and safe surgery, posing little risk,” then your disability may be found to be temporary on the theory that the surgery would fix the problem and you would be able to return to full duty.

As always, please do not hesitate to contact me in the event you have any questions regarding Workers’ Compensation, disability retirement, WTC Presumption ¾ Disability, Social Security Disability or personal injury lawsuits. You can reach me at 516-496-0400, ext 4413 or mrada@fbrlaw.com.