Legal Report

Deadly deadlines are rapidly approaching! In order to protect your rights to an accidental disability retirement (¾’s), presumptively due to rescue, recovery, or clean up operations in certain specified locations following the murderous terrorist attacks on the World Trade Center, you MUST file a Notice form (RS 6047-N) with the New York State Police and Fire Retirement System by JUNE 14, 2007. If you fail to do so, you will be barred from filing for the benefit if you become sick and disabled from any of the medical impairments set forth in the law as “qualifying medical conditions.”

The other deadly deadline approaching involves benefits potentially available under the New York State Workers’ Compensation law. In order to protect your rights to payment for reasonable medical expenses and lost wages of up to $400.00 per week, you MUST file a WTC -12 form with the Workers’ Compensation Board BEFORE AUGUST 14, 2007. If you fail to file this form in a timely fashion, you may be forever barred from receiving any benefits from Workers’ Compensation should you become sick and disabled in the future. Please note that the Workers’ Compensation law will cover volunteers if they meet all the requirements. If you know any volunteers who participated in the rescue, recovery or clean up following the 9-11 attacks, make sure you let them know that they must file form WTC-12 to protect eligibility to Workers’ Comp benefits. There is NO provision for benefits to volunteers from the New York State Police and Fire Retirement system.

This Legal Report has very frequently written about the issue of incident versus accident with respect to qualifying for accidental disability retirement benefits (3/4’s). As devoted readers know, not every line of duty injury will qualify as an “accident” within the meaning of the law. The Appellate Division, Third Department, handed down a decision on March 8, 2007, illustrating the distinction between the two.
The facts are not complicated. A police officer, while searching a split-level private residence for a possible intruder, injured his lower back and right knee when he stumbled down a set of stairs leading to the lowest level of the residence. At his appeal hearing with the Retirement System, the cop testified that he stumbled because the edge of the landing protruded about three inches over the first step and this condition was disguised because the three-inch lip was painted the same color as the steps. A fellow cop, who followed the injured cop into the area, testified at the appeal hearing that the injured cop stumbled because the top step riser was only half the height of the remainder of the stairs. In his application for ¾’s, the cop wrote, “I started to walk into the basement and caught [my] right foot on short step landing.” On his Workers’ Compensation claim forms, the cop wrote that he “tripped [and] fell on [a] f aulty interior stairway.” The Appellate Court emphasized that the cop “testified that in the performance of his routine duties over the years, he had encountered thousands of stairways, many of which were substandard or defective.” The Retirement System’s Hearing Officer concluded that the cop “had failed to demonstrate that the incident constituted an accident within the meaning of the Retirement and Social Security Law” and denied the application for ¾ disability retirement benefits.
In upholding the decision of the NYS Comptroller to deny benefits, the Appellate Court noted that “an accident is a ‘sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact.’ Therefore, an injury will not be considered accidental when it emanates from activities undertaken in the performance of regular job duties. On this record, we defer to [the Retirement System’s Hearing Officer’s] credibility determinations and find that substantial evidence supports the determination that [the police officer] was injured by his own misstep, and did not suffer an accident within the meaning of the Retirement and Security Law.”
Take your time when you fill out your aided packages and accurately describe how you were injured. Do not take short cuts when completing this crucial paperwork. Be sure to include any unusual, out of the ordinary events, or if you were doing work you do not regularly do. If you trip, slip or fall on or over something, identify the cause.
My partner, Victor Fusco, Esq., has written the following information concerning the new Workers’ Compensation reform law. Please note that it will affect accidents that occur on and after March 12th 2007. If you have already been found permanently partially disabled, this new law will not affect you.
 As of July 1st, 2007 the compensation rate increases to $500 a week.

On February 27th the Governor’s Office, the Business Council, the NYS AFL-CIO and the legislature all issued press releases hailing a “jointly agreed upon” Workers' Compensation reform proposal.  Within a week the bill was written, unanimously passed in both houses, with little opportunity for additional public comment and signed into law. However, amidst all the spin, there are at least two proposals which will fundamentally change the historical bargain between workers and employers, and workers’ advocates have been critical of the legislation.
The good news, of course, is the first rate increase in 14 years – to $500 – as of July 1st.  In July 2008 the maximum rate increases to $550, in July 2009 to $600 and in July 2010 to 2/3rd of the State Average Weekly Wage (“AWW”) and thereafter indexed for inflation. (The State AWW is presently around $1041 a week, and if the State AWW standard was currently in effect, the maximum compensation rate would be around $694.00 a week). Additionally the minimum benefit was raised from $40 to $100.
In evaluating the legislation, however, all need to be aware of a virtual tidal wave of “reform” that has swept through Workers' Compensation programs in almost all the states. These reforms generally can be summarized by the phrase: “drastically cut or eliminate benefits to workers.”  When compared against what has been happening in other states, New York’s reforms appear quite benign. But, as with any legislation “the devil is in the details.” Unfortunately, although one of the goals of the legislation appears to be the reduction of litigation, insurance defense attorneys are already counting their chickens, viewing the legislation as the “full employment for defense attorneys’ act.”
Meanwhile, workers’ advocates are decrying the most fundamental change in Workers' Compensation law in 90 years, and that is the ten year limit on the amount of benefits permanently disabled injured workers can receive for permanent partial disabilities. This places a time limit on the types of injuries which were traditionally viewed as progressive in nature and “non-schedulable”; specifically, injuries to the spine, heart, lungs, brain, visceral organs. New York has always time limited benefits to extremity injuries.

Now benefits for even the most severe partial disabilities will be capped on the following basis:

Schedule of Permanent Partial Disability Disabilities under Workers' Compensation Amendments of 2007.

A second area of great concern to workers’ advocates is the proposal within the legislation to discard the traditional NYS Workers' Compensation Board standards of assessing disability and to instead apply “ fact based disability determinations.” The problem is that nobody really seems to yet know the meaning of the term “fact based disability determinations.” Does it refer to a medical-vocational analysis similar to that employed in Social Security Disability adjudications, or is it a euphemism for AMA Guidelines uniformly detested by workers’ advocates across the country as “stingy and unfair”? As this new law is interpreted and applied, we will bring matters of concern to your attention.