Legal Report
By: Milan Rada, Esq.
Several consultations I have had with police officers, along with problems relayed to me by the PBA, have convinced me that I should devote this Legal Report to a review of basics. It seems that there has been some confusion over such items as timely filing of a Workers’ Compensation claim, proper reporting of an accident, understanding how settling a car accident case can affect your Workers’ Compensation case and proper utilization of the Medical Review process.
Medical Review came into being as the result of an agreement between the Police Department and the PBA on March 25, 1993, when the Memorandum of Agreement creating it was signed. The Medical Review procedure was created to quickly, efficiently and inexpensively handle disputes involving a police officer’s ability to work, whether in a full or restricted duty capacity; whether a specific injury is a recurrence of a prior injury; and whether an injury occurred in the line of duty. It was felt that Medical Review would streamline the process at arriving at determinations in these matters, taking care of cases that could be relatively easily disposed of, without the need for full blown Section 207-c hearings, which would be extremely expensive, both for the Police Department and the police officer and very time consuming. It was felt that if the dispute was not resolved in the Medical Review process, a Section 207-c hearing could still be held, thus eliminating the need for 207-c hearings in many instances.
The process is commenced with the police officer requesting Medical Review after receiving a denial from the Chief Surgeon on disputes involving ability to work or line of duty status of an injury. Medical Review must be requested in writing within 30 calendar days of “personal receipt” of the determination. The written request for Medical Review must be served on the Commanding Officer of the Medical Administration Office. One of the Police Surgeons will contact the cop’s “physician” by telephone. If the Police Surgeon and the cop’s doctor do not reach agreement on the dispute, then a third, neutral doctor is selected for the purpose of resolving the conflict. The neutral doctor provides a medical opinion, which is advisory and is presented to the Police Commissioner for final determination.
Recently, a Medical Review was undertaken in which the police officer was being treated by two physicians: an orthopedist and a neurologist. It is my interpretation that the Memorandum of Agreement, in such a circumstance, requires the Police Surgeon to conduct the Medical Review with the doctor designated by the police officer requesting Medical Review. In this recent case, the police officer requesting Medical Review was not asked by either MAO or the Police Surgeon to designate the doctor on his behalf. I believe that this constitutes a violation of the Memorandum of Agreement and a grievance will be considered.
Before requesting Medical Review, the cop should give ALL his treating sources a head’s up on the Medical Review process. Tell your doctor you requesting Medical Review and explain the process. Make sure your doctor is familiar with ALL aspects of your claim; do not assume the doctor is fluent in the particulars of your injury. Discuss with your doctor the date of your injury, how you were injured, the parts of your body that were injured and your work history following your accident. If you never returned to full duty, make sure your doctor knows that. If you returned to full duty for only a short time, make sure your doctor knows that. Make sure the doctor is familiar with the treatment you have undergone since the accident: all tests (MRI, CT scan, X-ray, EMG, etc), physical therapy, epidural injections, pain management, ER visits, any surgery performed, etc. Make sure the doctor knows the reason for the Medical Review, such as a dispute over whether recently taken sick days are causally related to your accident, or a dispute over your ability to do full or light duty. Make sure your doctor knows exactly the dates that are in issue. Make sure your doctor knows that the Police Surgeon will call him and that the Police Surgeon will undoubtedly be skeptical of any position taken in opposition to the views of the Police Surgeon. Make sure the doctor understands the nature of the phone call he will receive and that he supports your claim. If your doctor does not indicate support for your position, there is no point in requesting Medical Review. Your doctor does not need to be “absolutely certain” or “positive” about the cause of your present medical condition. The legal standard in New York is that your doctor can state his opinion “with a reasonable degree of medical certainty.” Although the Memorandum of Agreement requires that the cop designate which of his doctors he wants the Surgeon’s office to contact, since there is no guarantee yet that this directive will be followed, the safer course is to alert all the doctors who are treating you for the disability.
My partner, Richard Brandenstein, Esq. has contributed the following information regarding a Workers’ Compensation claim. This issue is being addressed now because of a problem a member ran into who did not use the PBA medical counsel for either his personal injury claim or his Workers’ Compensation claim. This officer found himself in a very unhappy, difficult position, despite a decent settlement for his injuries. He was positively amazed to find out that after he settled his car accident case, and thereafter needed back surgery, that he was responsible for paying for that surgery. It was NOT going to be covered by either Workers’ Compensation or his private medical insurance.
Most people know that if someone is injured on the job, he or she is entitled to certain Workers’ Compensation benefits. These benefits, together with any contractual rights to which the injured worker may be entitled, provide for the medical care required to treat work related injuries. Additionally, the injured worker can qualify for monetary benefits to compensate for lost wages.
"Medical care" includes any and all expenses related to the care and treatment of the injured worker's job related injury or condition. Crutches, medication, visits to an authorized health care provider, transportation to and from the doctor, hospital beds, etc., are all covered under the Workers' Compensation law. The monetary benefits paid through Workers' Compensation can be as high as $400 per week, and in certain cases of permanent disability, can be paid for the rest of the injured worker's life.
Because these benefits are provided through the employer's Workers’ Compensation insurance, injured workers do not have the right to sue their employers or co workers for losses or damages resulting from a work-related accident or condition. The employer and co workers are absolutely protected from lawsuits. If a lawsuit were to be brought directly against an employer or co-worker, it would be summarily dismissed by the courts. The injured worker's sole recourse against the employer or co-worker is to file a claim with the Workers’ Compensation Board. In such straightforward Workers' Compensation cases, the only monies to be recovered are those provided under the Workers' Compensation law.
There are some instances in which a work related injury may also result in a negligence claim against a party other than the employer or co worker. If the accident resulted as a result of the negligence of some "third party” other than the negligence of the employer or co worker, a lawsuit can be brought against that other party. In that lawsuit, a claim can be made for lost wages, medical care and "pain and suffering." This could result in the injured worker receiving monies above and beyond those provided under the Workers' Compensation law. Therefore, a worker injured in the course of his or her employment should always consult with an attorney to explore whether any possible lawsuit exists against any other entity.
It is in the interest of the worker and the employer to pursue such "third party" lawsuits. The worker benefits by being able to receive full compensation for injuries sustained. The employer would have another party with whom he can share
the costs of health care and lost wage benefits. In addition, the employer has a lien against any recovery in a "third party" lawsuit for Workers' Compensation medical and monetary benefits paid to the injured worker. Furthermore, the employer receives an offset against the payment of future Worker's Compensation benefits for any amounts received by the injured worker in the "third party" action. Because of the existence of the employer's lien and offset rights, "third party" lawsuits cannot be settled by the injured worker without the written consent of the employer. Failure to obtain that consent results in a complete forfeiture of future Workers' Compensation benefits for that accident.
For example, our firm recently represented a construction worker who was injured on the job as the result of the negligence of a sub contractor who was not his employer. He sustained an injury to his back which resulted in five months of disability and approximately $17,000 in assorted medical bills. A Workers' Compensation claim was filed and he received $400 per week in indemnity payments for the 20 weeks he was out of work and payment of all of his medical bills. He returned to his former occupation. Since he was injured as the result of the negligence of an entity which was not his employer, a "third party" lawsuit was commenced against the sub contractor. Eventually, a settlement was reached in that case for the sum of $175,000. From that sum, the employer was reimbursed $25,000, representing the $17,000 in medical payments and the $8,000 in lost wages. The employer was very pleased to consent to the settlement. After payment of all expenses and attorney's fees, the injured worker netted approximately $90,000. The employer is entitled to an "offset" against future Workers’ Compensation benefits for that $90,000. So, if the injured worker loses additional time from work or needs medical care in the future, the first $90,000 is the responsibility of the worker. In effect, the $90,000 acts as a "deductible" against the payment of future Workers' Compensation benefits. Another way to look at it is that the $90,000 is a pre-payment of future Workers' Compensation payments. In this particular case, the construction worker was thrilled. He believes he is finished with treatment and feels he received a $90,000 advance payment of Workers' Compensation that he never would have seen. He still works in construction and the fact that he has a prior Workers' Compensation injury doesn't preclude him from filing a future claim if he has another unfortunate accident resulting in a back or other injury. In this case, both the worker and his employer feel that they have been satisfactorily compensated for the negligence of the sub contractor.
In the event of an unfortunate accident or injury, you owe it to yourself and your family to pursue every possible legal remedy to make certain that you are fully protected. Unlike the police officer who had the car accident in the line of duty, our contractor did not get stuck with any extremely high cost surgery after his case was settled. Timing is everything, even when settling a personal injury lawsuit.
If you are injured at work, the Department Manual requires that you provide notice within 7 days of the injury. Providing this timely notice will avoid disputes and controversies regarding entitlement to full pay for a line of duty injury and entitlement to Workers’ Compensation benefits. With injuries to the neck and back symptoms can take some time to develop. You must also avoid the cop “Superman,” “I can tough it out mentality.” Failure to timely report can result in really bad consequences: denial of an aided number, and if you wait beyond 30 days, denial of Workers’ Compensation benefits. It’s not that hard to do. Take the time to protect you and your family. If you “do something” to your back or neck at work, if you lift something and fell a twinge, or pull, or tightness or spasm, do an aided package. If there is no significant injury, so be it. Nothing lost. If it turns into something a lot more than you thought it would be, and 7 days have gone by and then 30 days go by and you have not reported this injury to the Department, you will be very sorry indeed. I hope this has been a clear wake up call on this issue.
If you have any questions regarding line of duty, or off duty, injuries, accidents or illnesses, please do not hesitate to contact the PBA’s medical counsel. You can reach me at 516-496-0400, ext. 4413 or at mrada@fbrlaw.com. My extremely capable paralegal, Carol Venezia, is available to answer questions, as am I, and will happily schedule an appointment
|
