Legal Report

Regular readers of the Newsletter know that the topic of “incident v. accident” has received a great deal of attention in the LEGAL REPORT. I have frequently been asked to inform you whether a reported fact pattern is an “accident” or not. Here are some recent injuries that have been found to be accidents by the Retirement System:

1) “While on duty and at work driving a marked police car, suddenly and without warning, the driver of another vehicle, traveling at great speed, struck the police car in the rear, causing my injuries and disability”.

2)”While on duty and at work, attempting to place a subject under arrest, he failed to comply and became violent. In my attempt to gain control over him, we both went to the ground at which point he punched, hit and kicked me until I was able to handcuff him. In this violent struggle I injured my back, right shoulder and left hand”.

3)”While on duty and at work, driving a marked police car, I was proceeding through an intersection with the green light in my favor; the other vehicle then made a right on red light turn, causing the collision between that car and the police car and further causing my injury and disability”.

4) “While on duty and at work, getting off a police boat, I stepped onto a handy billy box, which are the portable steps. The steps then suddenly, unexpectedly and without warning moved, causing me to fall backwards onto my back, resulting in my injury and disability”. The following injury was determined NOT to be an “accident”: “On February 11, 1999, petitioner, a police officer employed by the City of Yonkers in Westchester County, responded to an alarm regarding an armed robbery. Looking for the suspect, petitioner and his partner went to an abandoned motel which was in the process of being demolished. Approaching the motel, petitioner walked up the sidewalk, a portion of which was damaged pavement and curbing. He stepped over the curb, into a depression, and sustained an injury to his knee. Petitioner applied for accidental disability retirement benefits in October 2004, but his request was denied. Upon petitioner's request for a redetermination, a hearing was held and the Hearing Officer ultimately concluded that the incident giving rise to petitioner's injury was not an accident within the meaning of Retirement and Social Security Law § 363 and denied petitioner's application. Respondent Comptroller agreed with this determination, prompting petitioner to commence this proceeding”. The Appellate Division’s reasoning for agreeing with the Retirement System that this is not an “accident” may be summarized as follows: "[A]n injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury". Here, petitioner admitted that he was aware that the curb was damaged and, while crossing over it, he stepped into a shallow depression which he had not noticed. Under the circumstances, "the hazard presented was one that petitioner could have reasonably anticipated, even if he did not actually see it until after [sustaining his injury]". Petitioner's argument that there should be a different result because his search for the armed robbery suspect left him "faced with a dire emergency" is unavailing. Petitioner admitted to taking part in searches for suspects "[m]any times" during his years as a police officer, and his job description which was entered into evidence at the hearing is replete with references to acting in response to crimes and in emergency situations. Accordingly, "'the incident in question emanated from a risk inherent in his regular job duties' and, since substantial evidence supports the Comptroller's determination, we confirm”.

My partner, Richard Brandenstein, Esq., was kind enough to review aspects of the very new reforms to the Workers’ Compensation law, which you should be aware of. Already the PBA has received questions and complaints regarding the changes, so I asked Richard to explain some of the changes so that you are prepared to deal with these changes in the event of a line of duty injury.

On February 27, 2007 Governor Spitzer’s office, the Business Council, the NYS AFLCIO and the legislature all issued press releases hailing a “jointly agreed upon” Workers’ Compensation proposal. Within a week the bill was written, unanimously passed in both houses, with little opportunity for public comment and signed into law. However, amidst all the spin, there are a number of provisions which will fundamentally change the historical bargain between workers and employers. We are just now starting to see some of the changes come into play.

The good news is that the law finally increased weekly compensation rates from the $400 top rate in effect since 1993 to $500 per week for injuries occurring after 7/01/2007.  Additional increases will be automatic in the future. In addition, diagnostic tests can be ordered by the health care provider without the necessity of obtaining prior authorization provided the test costs less than $1,000 (previously the limit was $500). However, the law also permits insurance companies and self insured employers (such as Nassau County) to contract with companies to provide those diagnostic tests and medications and COMPEL the injured worker to use their facility and their drug providers. This provision was inserted into the law purely as a cost saving device for employers and their insurance carriers.  If an injured worker wants to use a different facility or drug provider they would be personally responsible for payment.

Nassau County has contracted with the Triad Company to administer its Workers’ Compensation claims. Triad, on behalf of Nassau County, has contracted with “One Call Medical” to provide diagnostic tests (such as MRI’s, EMG’s etc) for Nassau County Workers’ Compensation claimants. The usual procedure to obtain such testing is for the claimant’s doctor or staff to contact Triad by either calling or faxing a medical report which states precisely what they want done. Triad then contacts a representative at One Call and they schedule the test at a location near the claimant. In an effort to expedite this process, a claimant may want to alert One Call directly by calling 800-872-2875. One Call will then call Triad to try to get the needed authorization from them. Of course, the treating doctor must still request the test in writing, otherwise Triad won’t give One Call the go ahead. One Call has arrangements with a number of MRI and other facilities in NYC and Long Island. Our experience is that once One Call is contacted, they are fairly prompt in arranging the needed test—usually within a few days or a week. Unfortunately, if the claimant or the treating doctor wants the test performed at a specific facility, Triad need not accommodate them nor pay for a test outside of their network.

In addition to diagnostic testing, the new law permits carriers and self insured employers (like Nassau county) to direct a Workers’ Compensation claimant to get medications through their vendors. Triad contracted with PMESYS to provide medicines. An injured worker will get an ID card from Triad shortly after filing a Workers’ Compensation claim. The injured worker can bring this card to a participating drug store and have the prescriptions filled. If preferred, the claimant can opt for home delivery of the needed drugs through the mail. I haven’t had any reports of any particular problem with this system as yet.

Both of these restrictions are relatively benign. Keep in mind that the medical care provided in a Workers’ Compensation claim is generally superior to regular medical insurance because there are no co-pays, deductibles or caps on treatment or the types of conditions that are covered (psychological and chiropractic care in particular is far superior to the usual medical plan).

Unfortunately, the new restrictions on diagnostic testing and medications are not the only changes in the Workers’ Compensation Law nor are they the most serious. In exchange for the increase in weekly rates from $400 to $500 per week, the Business Council extracted a cap on permanent benefits in New York. For accidents which occurred prior to 3/13/2007 there are still permanent payments available for those who sustain career ending injuries. For all accidents after that date there is a limit on the length of time payments will be made. Theoretically those payments could last 10 years in the most serious cases. Practically, the payments for most will end after only a few years. This change represents the most drastic change and limitation in benefits since the law was first enacted in 1914. At a recent meeting with the new Chair of the Workers’ Compensation Board, Zachary Weis, acknowledged that the savings to insurance companies resulting from the new cap are approximately $750 million dollars per year.

In addition, there are a number of “Task Forces” formed at the Workers’ Compensation Board to review procedures, medical guidelines and other obscure but very important aspects of the Workers’ Compensation system. The reports we’ve been receiving from participants indicate that comprehensive changes are being discussed and that many of them are geared towards cost savings which will further reduce benefits to injured workers. For example, the group reviewing medical guidelines just hired a consultant to assist them in their task. The particular consultant has been a champion of the insurance industry and an advocate for the AMA guidelines, a pro insurance company standard used in evaluating disabilities which result in significantly lower monetary awards for injured workers. That is not a positive development. We’ll keep you posted as to what results.

If there are any questions concerning Workers’ Compensation, Social Security Disability, ¾’s or ½ disability benefits, or lawsuits involving injury due to the negligence of others, please do not hesitate to contact us at 516-496-0400, ext. 4413 or mrada@fbrlaw.com.