Legal Report

Pete Paterson, Corresponding Secretary and legislative liaison, is continuing his hard work to achieve a clarified ¾ presumption heart bill for Nassau County police officers and to fix the problem with the ¾ heart bill that other uniform services already have. Because of continuing confusion over what the benefit for a heart impairment is for Nassau County cops, Pete has asked me to explain the benefit in this month’s Legal Report.

Section 363-a of the Retirement and Social Security Law (RSSL) provides that, “Notwithstanding any provision of this chapter or of any general, special or local law to the contrary, any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a policeman, presently employed, and who shall have sustained such disability while so employed, shall be presumptive evidence that it was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence”.

Since there are so many Nassau County cops who were previously employed by the New York City Police Department, which has a different heart bill benefit altogether, it is important to understand the benefit provided to you by the NYS Retirement System. The NYS Retirement System provides a 50% tax free pension for heart related disabilities, as opposed to the 75% tax free benefit provided by the New York City Police Pension Fund. This is one of the two the fundamental differences between the two retirement systems.

To qualify for a heart impairment disability, under the NYS Retirement System statutory scheme, the applicant must show that he is permanently incapacitated for the performance of the full duties of a police officer, i.e., there is NO presumption as to disability. However, there IS a rebuttable presumption that the heart impairment is the result of the performance of duty. There is also no presumption that the heart disability is the result of an accident. How is this presumption actually applied?

Just recently a Nassau County cop was awarded a 50% heart bill disability. The facts of his case are not complicated. The cop responded to a radio call for a burglar and engaged in foot pursuit of the suspect through residential backyards. Following the apprehension of the suspect, the cop suffered shortness of breath and chest pain. The cop was driven to the hospital by his partner.

Because the cop was not able to return to work, an application for disability benefits pursuant to section 363-a of the RSSL was filed, stating that the cop was permanently disabled for the full duties of a police officer because of “impairment of the heart.” The application also asks for a description of the occurrence causing the disability and the cop indicated that “While on duty and at work, in the course of chasing subjects who reportedly were running in backyards of residences, I had a heart attack”. Despite overwhelming and unanimous medical evidence of disability, the Retirement System sent the cop to one of its medical experts for evaluation and verification. On behalf of the Retirement System, Dr. Richard S. Joseph, Diplomate – American Board of Internal Medicine, reported that the “Patrol Officer sustained an acute inferior wall myocardial infarction [heart attack] immediately after chasing a suspect. He was found to have three-vessel disease and felt by his cardiologist, Dr. Richard Schwartz to have sustained a closure of his right coronary due to a plaque which ruptured and thrombosed. Subsequently his left circumflex artery needed to be stented as well in August 2006 for recurrent angina. He has been free of angina since and remains on sick leave. He has therefore three vessel disease with normal ventricular function by echocardiogram and catheterization and has modified his risk factors in terms of cessation of smoking and hyperlipidemia. He is considered at risk for progression of coronary disease in unstented vessels. . . . I therefore consider him permanently disabled at this time for the full position of Police and Patrol Officer which he had formerly held”. Accordingly, the cop was awarded a 50% tax free disability pension; his claims for Social Security Disability and Workers’ Compensation benefits are pending. Any benefits received from the Social Security Administration and/or the Workers’ Compensation insurance carrier (Nassau County) will be paid IN ADDITION to the 50% performance of duty disability benefit.

Is there any way this cop could have qualified for a tax free ¾ disability pension? The work event resulting in this cop’s heart attack was not an accident within the meaning of the RSSL; it was clearly an incident since the heart attack happened after the cop ran and chased the bad guy. So, in the absence of a heart bill that provides for a presumption of a heart disability being the result of an “accident” that happened at work, the answer is no. This is one of the issues Pete Paterson is working so hard to fix.

This brings us to the next problem. Section 363-a. 1. of the RSSL, dealing with firemen who belong to the Retirement System provides that “Notwithstanding any provision of this chapter or of any general, special or local law to the contrary, any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a fireman shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident, unless the contrary be proved by competent evidence” (our emphasis). As is apparent in the difference from the benefit afforded to police officers, firefighters get the added presumption that the heart impairment is also the result of an ACCIDENT and are, therefore, entitled to a ¾ disability benefit rather than the 50% payable to police officers.

However, the way the Retirement System interprets this section has greatly narrowed the number of firefighters who actually qualify for a ¾ disability benefit. The Retirement System requires that the presumed accident resulting in the heart disability actually be an accident within the meaning of the law and that the injured applicant has complied with all the requirements of an accidental disability, including notice of the accident. The presumption that the heart disability is the result of an accident has been effectively destroyed by the Retirement System. In addition to firefighters, under the RSSL, other uniformed officers who have a ¾ heart bill benefit are correction officers, uniformed court officers or peace officers, and sheriffs, undersheriffs or deputy sheriffs engaged directly in criminal law enforcement.

It is a priority for Pete Paterson to get the heart bill mess cleaned up so that Nassau County cops enjoy the same heart bill benefit as do uniform services in New York City, such as NYC cops, firefighters and correction officers. This will require getting the governor to sign off on a bill “intended to clarify the intent of the Legislature regarding existing statutory presumptions pertaining to heart-related disabilities.” After the issue of how the presumption of “accident” being the cause of the heart disability gets squared away, Pete will turn his attention to getting a ¾ benefit for Nassau County cops, the same as enjoyed by other uniform services in the NYS Retirement System.

Because I missed the deadline for last month’s Legal Report, it was not printed. You can access it my firm’s website, www.fbrlaw.com following the link to police disability. That Legal Report dealt with being aware that working too much overtime while on restricted assignment following a line of duty injury can kill your ¾ or ½ disability claim. I strongly encourage all members to read that Legal Report and beware of overtime and filing deadlines after suffering a line of duty injury which may result in a claim for accidental or performance of duty disability benefits.

If you have any questions, please do not hesitate to contact me at 516-496-0400 ext 4413 or mrada@fbrlaw.com.