Legal Report

President DelaRaba received a letter dated April 23 2007, from First Deputy Commissioner Robert W. McGuigan, stating that “At the present time there are twenty-six members of the Department who have recently filed for Accidental Disability Retirement, but not for Performance of duty Disability Retirement. These members have acknowledged that they are permanently incapacitated and unable to perform their duties. The Department will be reviewing these and future cases and, when appropriate, will apply for Performance of Duty Disability on their behalf. This action will not prejudice the member’s application for Accidental Disability and is a common practice in other law enforcement agencies throughout the state.”

I have received many calls and seen many clients in the office who have expressed uneasiness and uncertainty about the process and intent of the procedure described by Commissioner McGuigan in his letter. Just today I met with a client who will be submitting his application for Accidental Disability Retirement (3/4) in the very near future. My client and I have no intention of filing an application for Performance of Duty Disability (POD) Retirement. My client wanted to know how the Department’s proposed action might affect him.

In order to understand the ramifications of the Department filing POD applications on behalf of members who have filed Accidental Disability Retirement (ADR) applications, you have to appreciate the fundamental differences, and similarities, between the two disability benefits. ADR pays the disabled police officer a fully tax free 75% of final average salary, which IS reduced by any Workers’ Compensation payments. In order to qualify for the ADR benefit, the police officer must prove that (s)he is “Physically or mentally incapacitated for performance of duty as the natural and proximate result of an ACCIDENT not caused by his own willful negligence sustained in such service and while actually a member of the policemen’s and firemen’s retirement system.” The application for ¾ “may be made by . . . the head of the department in which such member is employed.”

I am sure that you already know that not every work related injury will qualify as an “accident” so that a ¾ disability benefit is payable. The case law has carved out a very, very narrow definition of “accident” which is getting even more difficult and slimmer every day. Court decisions have defined an “accident” to mean a “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact.” Further yet, the court has noted that it is NOT an accident if the injury results from “a risk inherent in the duties of a police officer.” The seriousness of the injury and the severity of the disability do NOT make the manner of the injury an “accident.” So, if the way in which the police officer is injured is not an “accident,” as for example, if the police officer injures his back lifting a stretcher, then he will NOT qualify for a ¾ ADR benefit, no matter how severely he injured himself. In this situation, if the police officer files an application for ADR, that application will be denied on the basis that the manner in which the injury occurred is not an “accident” within the meaning of the law.

The Department is saying that by filing the application for ADR, the applicant is making the representation that he is permanently disabled for the performance of the full duties of a police officer. The Department is correct. However, because the cause of the injury is not an “accident,” this police officer’s disability application will be denied, even though he is significantly injured and disabled. Because the Department may not want to keep paying full salary to an injured police officer who is unable to perform his full duties, the Department has decided to give the Retirement System another option to determine disability retirement entitlement, and that is by submitting an application for POD benefits for the injured police officer.

The Retirement System will ONLY consider entitlement for the benefit that has been applied for. So, if a police officer only files for a ¾ benefit, only that benefit will be processed by the Retirement System. Even if it is evident to the Retirement System early on that the disabling event was not an accident, the Retirement System has no authority to consider a possible POD benefit, since no application was submitted for POD disability retirement.

However, an “accident” is NOT required to qualify for a POD benefit. To qualify for a POD disability retirement benefit, the applicant must be “Physically or mentally incapacitated for performance of duty as the NATURAL AND PROXIMATE RESULT OF A DISABILITY not caused by his own willful negligence sustained in such service and while actually a member of the policemen’s and firemen’s retirement system.” An application for POD “may be made by such member or [t]he head of the department in which such member is employed.” The POD disability retirement benefit is 50% of final average salary with Workers’ Compensation benefits paid IN ADDITION TO the POD benefit. A Workers’ Compensation payment increases the POD benefit. Both the POD and the Workers’ Compensation benefit are fully tax free. By way of example: let’s assume a final average salary of $100,000. The POD annual benefit would be $50,000. Further assume that Workers’ Compensation payments have been awarded at the permanent partial disability rate of $400.00 per week, which is $20,800 annually. The total payment per year is $70,800, which is 70.8% of final average salary. In this example, ¾ would, of course, be $75,000 per year. So, if we apply this example to a police officer who was denied ¾ because of no “accident,” but was approved on the POD application submitted by the Department, the officer would receive $4,200.00 less on the POD benefit. The extreme importance of the Workers’ Compensation award is obvious. (In this example, I based my figures on an accident that occurred before March 13, 2007, as the Workers’ Compensation law changed on that date).

The Department has the right to submit the POD application, as well as the ¾ application on behalf of members of the department.

I was asked whether the Department is hurting a police officer’s chances of obtaining a ¾ disability benefit by submitting a POD application. Based on many years of dealing with the Retirement System, I am often skeptical and cynical about its actions, interpretations and determinations. However, overall, I have found that the Retirement System is consistent in its determinations on what constitutes an “accident,” and the submission of the POD application will not change that. I believe that the Retirement System will view the Department’s action not as a comment on the merits of an “accident” claim, but as a cautious exercise of the employer’s prerogative, assuming the Department files POD applications on every case in which an ADR application is filed. Of course, if the Department becomes selective as to which cases it files a POD application on, it is possible that this may raise a red flag for the Retirement System and the Retirement System might view the Department’s action as a screening out tactic. I can only hope that the Department will do everything possible to avoid even the appearance of red flagging any police officer’s ADR claim.

I was recently asked whether by filing a POD application on behalf of a police officer who was denied ¾ despite being severely injured when he was struck by a car, the Department was seeking a smaller disability payout for that police officer. In this case the officer was denied his ¾ benefit on the basis that the Retirement System found that the police officer was not permanently disabled, in other words that he was not “hurt enough.” The medical standard for both ¾ and POD is IDENTICAL. If you are not hurt enough to qualify for ¾, then you need not be concerned about the Department filing a POD application on your behalf, because it also will be denied. The only factor separating a ¾ claim from a POD claim is the complicated, ever changing, ever more difficult issue of “accident.”

If you have any questions or concerns about ¾, POD, Workers’ Compensation, Social Security Disability, Medical Review or personal injury lawsuits, please do not hesitate to contact me at 516-496-0400, ext. 4413 or mrada@fbrlaw.com. My LEGAL REPORT was left out of last month’s PBA NEWSLETTER. You can read it on our website: www.fbrlaw.com. Click on the link for Police Disability, on the left hand side and you will see the LEGAL REPORTS listed by date on the right hand side.