Legal Report

As regular readers of the Legal Report know, in order to get a 75% or 50% disability retirement, the applicant must prove that he is permanently disabled for the performance of duty. Depending on circumstances, the Retirement System will use either a full duty job description or a restricted duty job description against which to measure disability. Obviously, it is imperative for virtually all applicants to have the Retirement System use the full duty job description when making a decision about the applicant’s disability.

Whether the Retirement System uses a full duty job description or a restricted duty job description depends on certain specific circumstances. A restricted duty job description WILL be used if: 1) the applicant “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”; 2) 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 one year 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, limited or restricted duty program), and who has performed at least 100 hours of paid overtime, while on light, limited or restricted duty assignment during any 12-month period within the two-year period prior to the filing of the application for disability retirement, the employer shall provide a written description of the duties and/or physical or psychological requirements of the light, limited or restricted duty assignment. With respect to such applicant, the Retirement System shall render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment”.

On November 8, 2007, the Appellate Division, Third Department handed down a decision very unfavorable to applicants for disability retirement with the Retirement System. The holding in the case of Matter of Vicks v. Hevesi (2007 NY Slip Op 08348) must be very carefully considered by every cop who is on restricted duty, or sick leave, following an injury and who may consider filing for disability. Although Vicks is a firefighter, the very same rules apply to cops, since both are members of the Police and Fire Retirement System.

Vicks did not contest the finding by the Retirement System that he was able to do restricted duty. Rather, he based his appeal on his interpretation of the “continuously assigned” to restricted duty regulation which was that since he was out of work on numerous occasions due to his injuries, he did not continuously perform his restricted duties for two years. And, since he did not perform his restricted duties for a continuous period of two years, owing to the “frequent” absences from work, application of the section applying a restricted duty job description was wrong.

It is important to understand the thinking that goes into the Third Department’s decisions. The Third Department defers to the Comptroller excessively, in virtually every case. These decisions are anti-worker. All you have to do is look at the statistics of Article 78 cases brought to challenge the decisions of the Comptroller and you will be amazed at how infrequently a disability applicant succeeds. The Comptroller wins almost every time! This is why the Retirement System should be very cautious in taking narrow, hard, anti-claimant positions – these positions will be routinely upheld by the Third Department.

The Vicks case followed past experience. The Third Department held that, “[The Comptroller’s] application of this regulation to [Vicks] an applicant who most certainly had been ‘assigned’ light duty work for a period well in excess of two years regardless of whether he was present at work every day to perform such duties was not irrational, arbitrary or capricious. In other words, [Vicks’] ‘assignment’ of modified duties was indeed continuous for over two years even though his actual performance of these duties may have been interrupted at times and, therefore, the regulation was properly applied to him”.

In a footnote to the decision, the court noted that “The precise amount of time that [Vicks] was absent from work during this period was somewhat disputed. [Vicks] testified that, while he did not know the exact number of days, he estimated that he generally missed two to three weeks of work on 10 separate occasions. [Vicks’] supervisor testified that, upon his review of [Vicks’] employment records, [Vicks] missed work on 17 occasions for periods ranging from one day to one week”.

This decision is a wake up call to all potential applicants for disability, whether 75% or 50%. The operative word, as far as the Retirement System is concerned, is “assigned.” If you are assigned to restricted duty, any time out sick will COUNT toward the two year period for the purpose of applying a restricted duty job description in making a decision on your disability application. File your disability application BEFORE you have been assigned to restricted duty for two years, taking into account any time out sick.

I recently met with a cop who told me that the Department was filing his 50% performance of duty application since he had filed a 75% accidental disability application. He then went on to observe that he “had” to win at least the 50% performance application because the Department, by submitting the application on his behalf, was saying that he was permanently disabled.

It is true that when the Department files an application on a cop’s behalf, the Police Commissioner is certifying to the Retirement System that in his opinion, the cop is permanently disabled for the performance of duty. However, this opinion by the Police Department is NOT binding on the Retirement System, which will make a decision on disability based on its own rules and guidelines. Again unfortunately, it is not uncommon for the Retirement System to disagree with the Department as to the extent of the cop’s disability. No matter who files the application, whether the cop himself or the Department, the cop’s burden of proof is the same and the Department filing does not guarantee an award of benefits.

IIf you have any questions, please do not hesitate to contact me: telephone is 516-496-0400, ext. 4413 and email is mrada@fbrlaw.com.

On behalf of my partners, Victor Fusco and Richard Brandenstein, and my entire staff, we wish all of you a very happy, safe, and joyous holiday season!