Legal Report

President DelaRaba and the other officers, trustees and delegates of the PBA are extremely upset and concerned by the apparent lack of awareness of some members as to how the Retirement System applies a 100 hour overtime rule in determining entitlement to ¾ (accidental disability) and ½ (performance of duty disability) retirement benefits. Recently a heroic police officer who suffered what appears to be a severe career ending stabbing to his dominant arm, in the line of duty, was denied ¾ disability benefits on the basis that he worked too much overtime. President DelaRaba directed me to explain and inform all of you, in plain English, how working excessive overtime can forever destroy an otherwise perfectly good ¾ or ½ disability claim

The advice is this: WARNING: CAUTION: if you are injured in the line of duty, you MUST be aware that if you work at least 100 hours overtime in any 12-month period while assigned to restricted duty following your injury, your disability will be measured on the basis of your ability to do your restricted duty assignment.

Now that you know the advice, which I hope I have made perfectly clear, here are some details. Obviously, not every line of duty injury will amount to a career ending injury. Thankfully, many line of duty injuries are minor and will heal with no permanent restrictions. However, there are also many injuries that are not obviously permanently disabling right away, yet may turn out to be career ending. These are the types of injuries that you must pay close attention to. You must know the rules and regulations so that you do not do fatal harm to your own disability claim before it’s too late. Simply put, BE AWARE OF THE OVERTIME RULE WHILE YOU ARE ON RESTRICTED ASSIGNMENT. It should be obvious to you that the longer you remain on restricted assignment, the more it appears that your condition is serious and may be permanent. This has to be a red flag, a warning and a caution. By the time you reach the point of being “continuously assigned to restricted duty” for about six (6) months, you should be talking to your treating physician about his medical opinion regarding being permanently disabled for the performance of the full duties of a police officer. Since it is possible to achieve 100 hours overtime while assigned to restricted duty in even less than six months, you need to pay close attention to your injury and the progress you are making. If you and your doctor are discussing surgery, this has to be yet another indicator to you about the severity of your condition. There are medical impairments and surgical procedures after which your doctor will not certify you as ever being able to return to work full duty. Having this information at the earliest possible time will assist you in making sure you do not do terminal damage to your disability claim by working too much OT.

Until you are perfectly and absolutely sure you will NOT file a disability retirement claim for a line of duty injury, YOU MUST monitor your own overtime very, very carefully. You should not come close to 100 hours overtime in any 12-month period while “continuously assigned to restricted assignment” following a line of duty injury. As of this writing, I am not aware of the Retirement System making any distinction between voluntary and mandated or ordered OT.

A further detail: you will notice that I have put into quotes the term while “continuously assigned to restricted duties”. This is because the Retirement System measures time to also include any time while on sick leave. For example, assume that a cop is injured in the line of duty on January 1, 2008 and is out on line of duty sick leave until June 30, 2008; he has been out sick for six (6) months. He then returns to work at restricted duty on July 1, 2008 and works this assignment through the end of 2008, with various and intermittent time out sick due to his line of duty injury. As of January 1, 2009, this cop has been “continuously assigned to restricted duty” for one (1) year because the Retirement System recognizes ONLY full duty and restricted duty as work assignments. Assuming this cop continues and stays on restricted duty, again with intermittent time out sick because of his line of duty injury, he MUST file his disability applications(s) before January 1, 2010 to avoid the punishing “two year rule”.

This brings us to a further detail and a further disability retirement CAUTION and WARNING: in order to avoid having your ¾ or ½ disability application(s) killed by being on restricted duty too long, you MUST file the applications before you have been “continuously assigned to restricted duty” for at least two (2) years. While you are assigned to restricted duty, any time you are out sick for your line of duty injury, WILL COUNT TOWARD THE TWO YEARS!! (See Matter of Vicks v. Hevesi, 2007 NY Slip Op 08348; decided 11/08/07).

At this point you might be wondering how exactly does working too much OT or waiting for more than two years to file the ¾ or ½ applications hurt my chances for obtaining a disability benefit? If you do not violate either the 100 hours OT or the two year rule, the Retirement System will decide your disability claim on the basis of whether or not you are able to do the FULL duties of a cop. In other words, can you perform the required very heavy exertional demands of a police officer: using physical force to effect an arrest, lift and carry a trundle with a 250 pound (or more) aided, hurdle fences, run and chase after a bad guy and tackle him to place him under arrest, stop a RMP, and jump out running, carry an injured person from accident site to safety, etc., etc. Since the overwhelming majority of police officers who file for disability are on restricted duty, we want the Retirement System to use a full duty job description in deciding if the cop is entitled to benefits.

However, if the cop worked too much OT or if he waited for more than two years of being “continuously assigned to restricted duty” before he filed his application(s), the Retirement System will instead look to whether or not the cop is permanently disabled from performing the restricted duties he is doing; it is virtually impossible to prove you are unable to do a job you are successfully performing. YOU WANT THE RETIREMENT SYSTEM TO BE COMPELLED TO USE A FULL DUTY JOB DESCRIPTION IN DECIDING YOUR ¾ OR ½ DISABILITY CLAIM. It does not matter whether the application(s) is filed by you or the Police Department; the rules apply no matter who submits the application.

In some recent decisions, the Retirement System rejected the following injuries as “accidents”: (1) While on duty and at work, exiting my police car, the radio cord connecting my radio and shoulder microphone that was on my gun belt, became caught on a spring extruding from the ripped driver’s seat, pulling me off balance and causing me to twist, causing immediate, severe pain in my back, resulting in my disability”. With respect to time frames, this “no accident” denial took about 19 weeks to receive. The application was filed on May 3, 2007 and the date of denial was September 27, 2007; (2) “While on duty and at work carrying a stretcher with an aided person in it, up steep steps from the basement, I was in an awkward position with my arms outstretched and extended over a railing, when I unexpectedly slipped on wet steps and fell, causing injury to my neck”. The application for ¾ was submitted simultaneously with an application for ½ on January 25, 2007. The denial of the ¾ application on the basis of “no accident” is dated July 12, 2007. It took the Retirement System about 5 ½ months to decide “no accident”. The ½ POD application was approved on November 21, 2007, taking about 10 months.

On behalf of the entire staff of Fusco, Brandenstein & Rada, P.C., The Disability Law Firm, we very sincerely wish you and your families a healthy, happy, and prosperous New Year.