Legal Report

Very frequently an applicant for ¾ or ½ disability retirement benefits will ask whether the issue of surgery plays a role in the claim. As recently as March 6, 2008, the Appellate Division, Third Department again dealt with the question of surgery in a disability claim.

The case involves police Sergeant Mullins who worked for the Town of Warwick, Orange County, from 1992 to 2003. He filed applications for both accidental disability and performance of duty disability retirement benefits on the basis that he was permanently disabled due to an injury to his thumb. He was injured while making an arrest. The Retirement System agreed that the way in which Mullins was injured was an accident within the meaning of the retirement law, so the only remaining issue was whether Sgt. Mullins was permanently incapacitated for the performance of the full duties of a police sergeant.

As is the procedure in disability retirement cases, Sgt. Mullins was sent to a physician by the Retirement System for an examination and evaluation. In Sgt. Mullins’ case, he was sent to Dr. John Mazella who is a board-certified orthopedic surgeon. Dr. Mazella was called by the Retirement System to testify at the hearing requested by Sgt.Mullins to challenge the Retirement System’s denial of his applications for disability retirement benefits.

Dr. Mazella testified that EMG tests were needed to identify exactly which of two possible nerve injuries Sgt. Mullins suffered from. However, Dr. Mazella went on to state that “safe and effective surgical procedures were available to correct either of the two conditions”. Very significantly, the court noted that Sgt. Mullins’ medical records indicated that his treating doctors recommended surgery. The medical records, noted the court, also indicated that the recommended surgery was not performed “solely due to [Sgt. Mullins’] apprehensiveness”.

In this decision the court also recites the minimum standard that must be met in order for the Retirement System to rely on its doctor’s report to deny benefits to an applicant for disability retirement benefits. According to the court, “inasmuch as Mazella’s opinion was rational, articulate and fact-based, it constitutes substantial evidence to support the Comptroller’s determination that [Sgt. Mullins] unreasonably refused to undergo a surgical procedure to resolve his disability and, thus, failed to establish that he was permanently incapacitated”.

In urging the Retirement System not to accept Dr. Mazella’s opinion, Sgt. Mullins argued that the doctor was not a hand surgeon. The court dismissed this argument as “meritless”, noting that “[T]he fact that a physician [is[ not a specialist in a particular area generally goes to the weight to be given the expert testimony[,] not its admissibility and the Hearing Officer is vested with the authority to weigh the relevant medical evidence’.

Sgt. Mullins’ claim for disability benefits was denied on the grounds that his disability was not permanent in that “safe and effective surgical procedures” could be performed to fix the problem with his thumb.

I have frequently been asked by a cop thinking about filing for disability benefits whether the Retirement System can or will force him to undergo surgery. The answer to this question is no. The Retirement System does not have the authority to force anyone to undergo surgery. However, if as in the case of Sgt. Mullins, “safe and effective” surgery exists to correct the disabling injury and the applicant does not have the surgery, and the applicant does not have a sound and compelling reasons for not undergoing surgery, then the claim is denied because the injury is not “permanent”.

As the court made clear in Sgt. Mullins’ case, fear of having the surgery is not a compelling reason. If an applicant were to testify at a hearing that “I’m afraid to have the surgery because someone I know had the same surgery and she is now in a wheelchair”, most likely the Hearing Officer would not find this a compelling reason, particularly if the Retirement System’s medical expert testifies that the risks associated with the surgery are relatively minor.

However, there are some reasons for not having surgery which will be found to be good, compelling and acceptable reasons for not undergoing the surgery. For example, if the applicant already had the same surgery and it was not successful this would be a good reason for refusing surgery. Another good reason would be if the applicant was not a surgical candidate because of some serious medical condition, such as suffering from diabetes, or having serious heart or kidney conditions. Another valid reason for not undergoing surgery is if there is a valid, recognized religious objection, such as being a Jehovah’s Witness.

The Appellate Division decision denying Sgt. Mullins’ claim does not mention the exact type of surgery that was recommended to him by his treating doctors. In other cases applicants have been denied benefits who refused arthroscopic surgery to the knee and shoulder. While arthroscopic surgeries clearly fall into the category of “safe and effective surgical procedures”, I am certain that cervical or lumbar fusions do not. Unfortunately, most of the decisions dealing with the surgery issue fail to identify the surgical procedure.

Lastly, in order for a denial of disability benefits on the ground that the applicant has refused to undergo recommended surgery to stand, it has to be shown that the surgery will permit the applicant to return to the full duties of his position. In Sgt. Mullins’ case, this is implied when Dr. Mazella testified that the surgery will “correct” the sergeant’s injuries.

Are you safe if your own treating doctor does NOT recommend surgery? Not necessarily because when you are sent to the Retirement System’s doctor, he will be asked by the Retirement System to consider whether there is a safe, reasonable and readily available surgical procedure that can be performed so that you can return to full duty. If the doctor does identify such a procedure, your disability claim is now in jeopardy, unless your own doctor can articulate a sound reason for you not to have the surgery.

I want to mention something having nothing to do with disability retirement claims, something a lot more fun than injury, impairment and surgery and denial of disability claims. If you were at the St. Patrick’s Day Parade in NYC, you certainly noticed that I took pictures. If you want to view the images I made, please send me your email address and I will email back to you the link where you can view the pictures on shutterfly. If you are familiar with the site, you know that you can order prints, etc. I will also upload to the site pictures that I took over the course of several years, including 2007, 2006, 2005 and 2004 St. Patrick’s Day Parades. Please send your email address to mrada@fbrlaw.com and PLEASE put in the subject line, “send me St. Pat Day Parade images”.