Legal Report

When I meet with a cop who is considering filing a claim for disability retirement benefits, frequent questions are, “What is the process? What can I expect? How long will the process take”? To give you an idea of what might happen when you file a claim, I am offering this in depth analysis of a case I handled.

On January 23, 2003, my office filed a claim for our police officer client with a good deal of medical evidence. The Retirement System conducted its usual processing of the case, which included a request for our client’s birth certificate, a request to complete an option election form, advise of the need to pursue a Workers’ Compensation claim, a request to complete a “task statement” (a listing of the activities the disability now prevents you form performing that you were able to perform regularly before the onset of disability), and the need to have treating doctors supply medical documentation in support of the disability claim. After all available medical evidence was submitted and the Retirement System was satisfied that technical requirements (Tier status, accident date and description, employment history, and notice of the accident) were satisfied, the cop was sent for a medical examination with a doctor of the Retirement System’s choosing. In this case, the doctor picked by the Retirement System was Dr. Stuart Kandel of West Islip, N.Y. Dr. Kandel submitted a report to the Retirement System dated December 10, 2003, stating that “Physical examination failed to reveal any objective abnormal findings related to either the right knee or lumbar spine which would preclude this claimant from performing his duties as a Police Officer.”

Despite overwhelming evidence of disability, including evaluations from the treating doctors, MRI’s and the fact that the Police Department had kept the cop on restricted assignment for one and one-half years even before the examination with Dr. Kandel, the Retirement System, as it typically does, gave dispositive weight to the opinion of Dr. Kandel and denied the application. The determination from the Retirement System denying benefits was dated February 17, 2004. By letter dated March 8, 2004, we requested a hearing and redetermination of the decision.

The initial hearing in this case was held on August 5, 2004, at which the cop testified. Because of the expense involved in producing a doctor to testify at the hearing, the cop elected to present his case by having his medical records introduced into the record. The Retirement System scheduled the second hearing to take the testimony of its medical expert, Dr. Kandel, for May 9, 2005.

My office and the Retirement System submitted briefs to the Judge who heard the case, Hon. John A. Moriarity, with our brief dated June 23, 2005. At this point, it is important to point out that Judge Moriarity is an excellent jurist, who is fair, intelligent and very knowledgeable. He seeks to make righteous decisions always. I considered my clients very lucky when their cases were assigned to him.

By letter dated October 12, 2006, Carolyn D’Agostino, Director of Hearing Administration for the Retirement System, advised me that Judge Moriarity “has resigned” his position as a Hearing Officer for the Retirement System and my client’s case would have to be reassigned. I had no verification that Judge Moriarity had in fact resigned his position with the Retirement System. On Thursday, January 4, 2007, I appeared in Nassau County Traffic Court and ran into Judge Moriarity where he also hears cases. Judge Moriarity was very pleased to see me and advised me that he did not understand why my case had been pulled from him as he still had two more cases to decide. He gave no indication at all of having resigned or retired from the Retirement System. I wrote a letter to Ms. D’Agostino dated January 5, 2007, explaining the circumstances of my having met Judge Moriarity at traffic court. In my letter, I requested that my case be immediately removed from the Judicial Hearing Officer to whom it had been reassigned and sent back to Judge Moriarity for his decision. After all, since Judge Moriarity heard all the testimony, he was in the better position to evaluate credibility and decide the case. By letter dated December 29, 2006, but postmarked January 8, 2007, I received the decision in this case from Hearing Officer Arthur Shapiro, to whom the case had been given after being taken from Judge Moriarity, denying the claim. Interestingly, on the very first page of the decision, Hearing Officer Shapiro writes that he was assigned the case because of Judge Moriarity’s “retirement.” There were now two conflicting explanations regarding Judge Moriarity’s status with the Retirement System: resignation and retirement. Then I received a letter from Janet A. Graham, Senior Attorney with the Retirement System who advised me that Judge Moriarity was “inactive” as a hearing officer with the Retirement System.

I have been offered three explanations for why my case was removed from a terrific judge: “resignation,” “retirement,” and “inactive.” My feeling is that the Retirement System manipulated the circumstances, removing the case from a judge who statistically had a record of rendering some favorable determinations for applicants in favor of a hearing officer who the Retirement System could rely on to render an unfavorable determination. But I could be wrong. But I don’t think I am.

I don’t know what will happen with a case on the day that I meet with a client. However, after reviewing all the paperwork and all the medical records, based on 18 years of experience handling these claims as PBA disability counsel and 28 years overall experience, I know what cases should win. This case should have won.

Frequently I am asked questions regarding rights and responsibilities of a cop in the event of divorce. The following material is supplied by Anthony Parisi, III, Esq., who concentrates his practice in the area of matrimonial and family law.

CHILD SUPPORT

New York State requires that a parent pay a percentage of his/her income toward the support of their unemancipated child.

The percentage established by statute is 17% for one child; 25% for two children; 29% for three children; and, 31% for four children. This is what is termed the “basic child support obligation.” The basic child support obligation is deemed to be the amount needed to feed, clothe and shelter the child.

The percentage applies to the income of the non-custodial parent (NCP) after deducting social security, city and Medicare taxes. Once that is taken into account, the court will then apply the appropriate percentage to the remaining income.

The court will look to see how much each parent is earning and total the amount. Once that amount is determined the court will apply the appropriate percentage up to the first $80,000 of combined income on a pro rata basis. It is mandatory for a court to apply the percentage to the first $80,000 of the combined income.

On the combined income above $80,000 the Court has the discretion to consider the additional amount. It should be noted that in the majority of cases, the court will mandate the NCP to contribute based upon the additional combined income at the same percentage.

As an example, assume the custodial parent (CP) is earning $20,000 and the NCP is earning $60,000 (after the appropriate deductions for the taxes mentioned above). The amount of child support, for one child, on the combined income is $13,600. The NCP will then be responsible for $10,200 and the CP for $3,400.

Assume the CP earns $40,000 and the NCP earns $120,000. The combined income would equal $160,000. As mentioned above, the NCP would be mandated to contribute $10,200 for the first $80,000 of combined income and for the remaining income ($80,000 combined) the Court has discretion to apply the same percentage, i.e., 17% to the entire amount or may deviate from that amount stating the reasons for doing so on the record.

Should the Court apply the same percentage, the CP will be required to pay an additional $10,200 for the basic child support obligation.

Once the amount of the basic child support obligation is determined, the court will then look at what are called “add-ons.” Add-ons are those things that are reasonable and necessary for the physical or emotional health of the child or for the care of the child.

If the child is in need of care whether for special needs or by a nanny, sitter or daycare provider because the CP is either working or attending school in furtherance of a degree or career, the NCP could be responsible for said cost in proportion with their income compared with the custodial parent. In the above example, the NCP would be responsible for 75% of the add-ons.

Should the child require special needs such as tutoring or a health care attendant or other unreimbursed medical needs, these could be considered add-ons for which the costs will be apportioned according to the parties’ income. In the above example, the NCP would be responsible for 75%.

In addition to being responsible for the cost of daycare, the non-custodial parent could be responsible for the costs of extracurricular activities in which the child is enrolled, such as Karate, piano lessons or the like.

One can easily see that these costs could become a burden on a non-custodial parent. Child support as a general rule is not tax deductible and is not considered income to the custodial parent.

Additionally, as many NCP come to learn, they worked over time and double shifts only to be served with papers for a divorce and learn that their hard work is being used against them to determine child support and perhaps maintenance of the CP.

There are certain factors a court could take into consideration when deviating from the guidelines such as the support of the children and the hardship on the NCP among others. One should, at the very least, consult with an attorney to determine what the basic obligation will be and what they can do to reduce their obligation.

These are the basic rules for child support based upon the statute. However, parties are free to reach an agreement concerning support of other children outside the guidelines upon certain conditions. Therefore it is imperative that one seek counsel before entering into an agreement for support.  An experienced attorney can draft an agreement that will protect you from future add-ons and if agreeable to the CP, provide you with a tax deduction.

Officers often ask what happens if I retire with an unemancipated child(ren)? The answer is that you may be held to the same obligation as when you were working. In a future Legal Report I will review how child support may effect your retirement.

Anthony Parisi is an extremely knowledgeable and experienced attorney, practicing in the areas of matrimonial and family law. He is a graduate of St. Johns’ University Law School and worked for several years at the Manhattan D.A.’s office. He can be reached at 631-226-1790.