Legal Report

Perfectly good disability retirement claims have been mortally wounded by cops who failed to recognize that working too much overtime or not filing for benefits within two years of being placed on restricted assignment are factors that must be very, very carefully considered. In an attempt to make everyone aware of the regulations, I am reviewing Sections 364.3(a) and (b) of the New York Code of Rules and Regulations. I would like the membership to be as familiar with these rules as most of you are with the difference between an accident and an incident.

The heading at Sect. 364.3 cautions that different job descriptions may be used by the Retirement System for applicants who have been assigned to light, limited or restricted duty. Section (a) states: “In the case of a member who has been assigned to light, limited or restricted duties for less than two years prior to the date application for disability retirement benefits was filed with the Comptroller (and who has NOT performed at least 100 hours of paid overtime in any 12-month period within such two-year period), the employer shall provide a written description of the duties and/or physical or psychological job requirements of the full duty assignment that were applicable to the applicant immediately prior to such reassignment to light, limited or restricted duties. With respect to such applicants, the Retirement System shall render its determination on the issue of permanent incapacity on the basis of the duties and job requirements of such previous full duty assignment”.

It should be pointed out that over the course of years I have been asked by clients if there is any disadvantage to filing for accidental disability and performance of duty disability benefits at the same time. Some people have expressed the opinion that filing for both benefits is a hint to the Retirement System that there is a good chance this event is not an accident and puts the applicant at a psychological disadvantage in that the applicant himself is uncertain whether he qualifies for the tougher definition of “accident.”

You ALWAYS want the Retirement System to be required to evaluate your case pursuant to Sect. 364.3(a)! In plain English, this means that the Retirement System must evaluate all the medical evidence and make a determination on the cop’s ability to do the FULL duties of a police officer when an application is filed before the cop has been on restricted duty for two years and the cop has NOT done 100 hours of OT in any 12-month period in this two year period. To make sure that you get the benefit of a Sect. 364.3(a) job description make sure you file your application for ¾ or ½ disability within two years of going on RA and make sure you keep a very close eye on your OT.

With respect to calculating the two year filing date, please be aware that the Retirement System only recognizes two duty assignments: full duty and restricted duty. Take the example of a cop working full duty and being seriously injured on January 1, 2008. She is not able to return to work until July 1, 2008, at which point she returns to work on RA. For the purposes of calculating this cop’s two year window for filing a disability application, the clock does not being to run until July 1, 2008. In order to preserve her right to a Sect. 364.3(a) full duty description, she MUST file her disability application(s) no later than July 10, 2010. However, assume for purposes of this example that this same cop returns to restricted duty the day after the accident, January 2, 2008 and works until July 1, 2008, at which time she has surgery for her injury. She is out of work completely, on line of duty sick until December 1, 2008. Under this set of circumstances, the cop must file her disability application(s) no later than January 2, 2010, assuming she has not made any return to full duty.

Please be aware that any time out on sick leave following restricted duty work will be counted as RA time toward the two year limitation by the Retirement System! If this cop were to file disability applications after January 2, 2010, her applications would be determined on the basis of whether or not she was permanently disabled for the performance of the restricted duty work which she has been performing. Obviously, it is much harder to prove you cannot do restricted duties as opposed to proving you are not able to do full duties.

You may also run afoul of Section 364.3 if you do too much overtime. If a cop does 100 hours or more OT in any 12-month period during the two years prior to filing the disability application and while “continuously assigned to light, limited or restricted duties for at least one year prior to the date application for disability retirement benefits was filed”, the Retirement System will decide disability using a light, limited or restricted duty assignment”.

In plain English then, make sure that you limit OT to LESS THAN 100 hours in ANY 12-month period following your line of duty accident and while continuously assigned to RA. Any OT worked on full duty following the accident will not adversely affect the duty standard that will be used, but it will be a factor that will be weighed in deciding whether the applicant is “permanently incapacitated”. Quite frankly, I prefer that my clients’ cases speak to disability in every way and therefore I prefer minimal OT worked following a potentially career ending injury. A bona fide return to full duty will reset the clock for all purposes as set forth in Section 364.3.

The question of “is it an accident for ¾ purposes” continues to plague applicants (and their lawyers!). Recently a police officer filed a ¾ application on October 9, 2007, stating on his application that “While on duty and at work, while walking up the back inside steps of the precinct located just inside the door leading to the outside, I slipped on sand that was on the steps and fell, hitting my left knee causing my injury”. On the Police Department’s Members Injury/Accident Report – PDCN 206, the Supervisor’s Investigation yielded the statement that “PO suffered injury to left knee after tripping on stair and striking it on riser. PO notified C.O. on date [of] occurrence and prepared a non recordable injury form”. The police officer’s own Incident/Accident Statement (form PDCN 206A-11/00) states that, “At 0800 hrs on [date] I was walking up the back stairs of the precinct. As I reached the mid level of the stairs I tripped and fell forward hitting my left knee on the metal steps. As I attempted to get up I felt a pain in my knee”. A witness to the police officer’s accident also completed a form PDCN 206A -11/00, indicating that “At approximately 8:00 AM on [date] at the precinct, [the police officer] was also walking up the stairs behind me, when I said “Hi”. He then stumbled and hit his left knee into the metal step. [The P.O.] seemed to be in great pain right after striking his knee”. As required, the Police Department also completed a Form C-2, which is the Employer’s Report of Work-Related Accident/Occupational Disease to the Workers’ Compensation Board and described the accident by noting that “Employee allegedly injured left leg/knee (sprain) when he tripped on staircase and struck riser”.

The Retirement System denied this application by determination dated April 3, 2008, giving as a reason that “It is hereby found that the incident alleged to have occurred on 11/16/2005 does not constitute an ‘accident’ as this term is used in Section 363 of the Retirement and Social Security Law”. The Retirement System took just about six (6) months to mail out this determination.

For ¾ purposes, the definition of an “accident” is that it be a “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact”. It may seem that slipping on sand on the back steps of the precinct on a mid November day should qualify as an “accident”. It appears that all the “accidental” qualifications are met, and it is not an “inherent risk” of work activity being performed. The problem here is that mention of the sand as being the cause of the fall is not noted on any of the papers contemporaneous with the accident. Sand as a cause of the fall is not mentioned on the PDCN 206 or on the PDCN 206A, which were completed the day after the accident. In this case the Retirement System apparently gave greater weight to the accident description made at the time of the accident as opposed to the description set forth on the application, which was completed a couple of years after the event. In this type of case the Retirement System looks at the fall as being the result of a “misstep” on the part of the applicant and not caused by some misplaced sand or other defect. The caveat is clear: be concise when filling out accident reports but be complete. If you slipped or tripped on something, write something. Although this police officer will be entitled to appeal the Retirement System’s adverse determination, such cases are most often decided in favor of the Retirement System.

With great pride and pleasure, my law firm announces that it has expanded its disability practice to include Veterans’ Benefits cases. If you think that navigating the tricky and difficult terrain of disability retirement cases or Workers’ Compensation cases or Social Security cases or GML Section 207-c cases can make your head spin, all I can say is you haven’t seen anything yet. Veterans’ Benefits disability cases are very complex, require great attention to detail and are full of very high speed bumps. We believe that there are many veterans who may be entitled to benefits but have not pursued them or have started the process and given up because of an initial denial. We are extremely proud to serve the veterans who have served this great country and hope you will let any vets who might need our help know we are prepared to fight for their rights. If anyone wants to schedule an appointment please contact Nick Parisi at 516-496-0400, ext. 4416, who will be coordinating this area of our practice.

As always, please do not hesitate to contact me if you need assistance or have questions dealing with any disability or injury matter at 516-496-0400, ext. 4413 or mrada@fbrlaw.com.