Legal Report

Recently, in connection with a cop’s claim for accidental disability retirement (3/4), I had the opportunity and privilege to question the Retirement System’s Director of Disability Services, Ms. Kathleen Nowak. As I stated on the record at the hearing, Ms. Nowak is smart, professional and accessible. While I often disagree with actions taken by the Retirement System, Ms. Nowak has always made herself available to speak with me by telephone and has been of great assistance to my clients from time to time. My firm deals with many governmental agencies and no one has been more accessible and helpful than Ms. Nowak.

Ms. Nowak was called to testify at my request in an appeal regarding the correct duty standard to be used by the Retirement System in deciding whether my client was entitled to a ¾ disability pension. The facts of the claim are as follows. My client was injured in the line of duty on July 25, 2000, when “in the course of stopping a DWI suspect, as [the police officer] was attempting to exit the police car, the suspect struck the front of the police car with his car, causing the passenger door of the police car to swing closed, hitting [the police officer’s] right leg and right shoulder and throwing [the police officer] backwards into the door post of the police car, causing [his] injuries and disability.” Following the injury, the cop was out of work from July 25, 2000, the date of the accident, to September 26, 2000. He returned to work at restricted assignment from September 27, 2000 to June 23, 2001. From June 24, 2001 to October 20, 2001, the cop is out of work again and on sick leave due to surgery that was performed on the shoulder injured in the accident. From October 23, 2001 to September 26, 2003, the date the application was filed, the cop is once again on restricted duty.

As is typical in these cases, the Retirement System sent the cop to be examined by a physician it selected and paid for, in this case Dr. Jeffrey Meyer. Dr. Meyer concluded that the cop “has an ongoing marked partial disability related to right should biceps. I do not feel that his shoulder condition is sufficiently severe to prevent performance of light duty activity.” Clearly Dr. Meyer has found the cop disabled for the performance of the full duties of a police officer; Dr. Meyer also stated that cop’s disability was as a result of the accident. Nevertheless, by determination dated February 22, 2005, the police officer was advised by the Retirement System that “It is hereby found that the applicant is not permanently incapacitated for the performance of duties.” So, what was the rationale for the denial?

The evidence in this case includes an inter-office memorandum from Ms. Nowak to the Retirement System’s Medical Board, on which it is indicated that the duty standard to be used is the restricted duty standard and the reason is that “assigned duties other than those of a line police officer or firefighter because of a disability, and has performed those duties for two or more years.”

It is our contention that the Retirement System incorrectly applied the “restricted duty standard” in this case. The applicable rule can be found at Part 364 of the NYCRR. It states as follows: “In the case of an applicant who, in connection with an alleged illness, disease, disability or physical limitation, has been continuously assigned to light, limited or restricted duties for at least two years prior to the date application for disability retirement benefits was filed with the Comptroller (whether or not the assignment was made pursuant to an organized light duty or restricted duty program) the employer shall provide a written description of the duties and/or physical or psychological job requirements which have been applicable to the applicant since such reassignment to light, limited or restricted duties. With respect to such applicants, the Retirement System shall render its determination or the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment”.

A supervisor was called in to testify, who explained that while the cop was out sick due to his injury and recuperation from surgery required by the accident, he was NOT on restricted duty; he was on line of duty sick leave which was not the same as being “assigned to restricted duty”.

This testimony from the supervisor was called to Ms. Nowak’s attention when she testified. Notwithstanding the police department’s position that line of duty sick leave was NOT the same as being assigned to restricted duty, Ms. Nowak said the Retirement System only recognized two duty assignments: full duty and restricted duty. She conceded that the Retirement System and the police department had different criteria and that the Retirement System would not adopt the position of the employer. In fact, Ms. Nowak testified that if a police officer is injured in the line of duty, and is assigned to restricted duty for a period of time in excess of two years, but NEVER works that assignment, the restricted duty standard will nevertheless be used.

In the case of my police officer, he worked restricted assignment from September 26, 2000 to June 23, 2001, a period of almost nine months. He was then out line of duty sick from June 24, 2001 to October 20, 2001, a period of almost four months. He then returns to restricted duty from October 23, 2001 to September 26, 2003, a period of about one year and 11 months. It is clear that neither period of restricted duty work satisfies the two year mark in order to apply the restricted duty standard. As Ms. Nowak conceded, the only way for the Retirement System to reach two years for the purpose of denying this claim on the basis of a restricted duty standard, was to bridge the two periods of assignment to restricted duty by interpreting the time out sick as “being assigned to restricted duty.”

Unfortunately, Ms. Nowak was not impressed with the fact that the police department (not the Nassau County PD) considered a cop out sick to be assigned to sick leave as opposed to restricted duty. Had Ms. Nowak accepted the employer’s duty assignment, then the two periods of restricted assignment would not have been bridged and this cop’s claim would be allowed by using the “full duty standard.” We are confident that the Judge assigned to this case will agree with our position and will make a decision in favor of the police officer.

Please note that this section of the law may also apply if an applicant for accidental disability or performance of duty (50%) disability performs more than 100 hours of overtime in any 12 month period and while on restricted duty, during the time frame following the accident up to the point of filing the application.

Obtaining a tax free ¾ or ½ disability pension is much easier if the Retirement System is required to use a full duty standard in determining eligibility. You should make sure not to jeopardize your potential claim by failing to follow guidelines for time frames and overtime.

If you have any questions or concerns about cases involving claims for Workers’ Compensation, Social Security Disability, Accidental Disability Retirement (75%), Performance of Duty Disability Retirement (50%), WTC Presumption Disability, Section 207-c medical issues or personal injury lawsuits, please do not hesitate to contact me at 516-496-0400, ext. 4413 or mrada@fbrlaw.com.