Legal Report

One of the questions I am most frequently asked is, "How long will my disability case take"? While this question should get a direct and fairly definite answer, the matter is actually very complicated as there are so many variables that can affect the length of the process. In an attempt to offer some more understanding of the process, here is the anatomy of one particular case.

The case started when my client consulted me on February 1, 2005. He is a Suffolk County correction officer who was injured on November 9, 2004 and a Tier 4 member of the New York State Employees' Retirement System (NYSERS). On the basis of his tier and job title, he has different disability retirement benefits than do police officer members of the Retirement System. However, in all other respects, such as processing of his claim, filing requirements, time frames and appeal procedures and rights, the case is similar to that of any police officer member of the Retirement System.

In order for this correction officer to obtain ¾ disability benefits, he must show that he is "physically or mentally incapacitated for the performance of duties as the natural and proximate result of an injury, sustained in the performance or discharge of his or her duties by, or as the natural and proximate result of any act of any inmate".  As you know, as a police officer you will not qualify for a ¾ disability benefit just because you are involved in a physical use of force situation with a subject; you must also show that your injury is the result of an "accident", as this term is defined in the law. Correction officers have an easier standard in this regard. My client was injured when he tried to subdue an inmate who was involved in an altercation with several other inmates.

My client had back surgery on January 11, 2005. Since his consultation with me was just about one month after surgery, I felt it was too early to meet the "permanency" requirement of the law, so we did not accept a retainer at that time. The client returned to see me on July 14, 2005, at which point we were retained.  Since we also represent this client in his Workers' Compensation claim, we were collecting medical evidence from the very beginning of his injury. Accordingly, we were able to submit an application for ¾ disability benefits on July 21, 2005, which was heavily supported by medical evidence of the client's disability. The Retirement System sent us a post card dated August 1, 2005 acknowledging receipt of the application.

By letter dated August 17, 2005, the Retirement System formally acknowledged receipt of the application and requested further documentation: proof of date of birth (birth certificate, baptismal certificate, original passport only, elementary school record, military service record, or an insurance policy issued at least 20 years ago. Note that any of these documents can be copies, except the passport). The Retirement System also sent the client an option election form and he was notified that since he was eligible, he could also file an application for Service Retirement without prejudice to the pending application for disability retirement. (You are also able to do this). The client was further informed that the Service Retirement application needed to be on file with the Retirement System at least 30 days but not more than 90 days prior to the date it is to become effective. The client was also advised in the letter that he should pursue Workers' Compensation benefits as the law requires "that any benefit that may become payable ... because of Article 14B Accidental Disability Retirement must be reduced by any amount payable under the provisions of the Workers' Compensation Law". Also, the client was asked to submit a statement to the Retirement System listing the tasks his disability now prevented him from performing that he performed regularly before he became disabled.

By letter dated December 2, 2005, our client was advised to make an appointment with Dr. Richard Goodman, a board certified orthopedic surgeon selected specifically by the Retirement System to evaluate him on behalf of its Medical Board. Our client was examined by Dr. Goodman on December 13, 2005 and Dr. Goodman issued a narrative medical report of the same date. On the basis of his examination and review of the medical records, Dr. Goodman opined that, "Based upon the documentation provided to me, this gentleman fell on 11/9/04. He had previous cervical pathology which is described in the MRI report. Following the injury of 11/9/04, an MRI study showed no change. Despite the absence of any change on the MRI, surgery was performed. He is now status post neck surgery. As he is status post neck surgery, he is unable to perform his duties as a Correction Officer. His current disability, however, is related to the previous condition and, when compared to the MRI study, there was no change". It is my office's policy to obtain the Retirement System's medical expert's report as soon as it reaches the Retirement System. Because the Retirement System almost always decides its cases based on its doctor's report, to the exclusion of the applicant's doctors' opinions, we were prepared for the worst.

And the worst came by determination dated April 27, 2006, when the Retirement System notified me and my client that "It is hereby found that the applicant is incapacitated for the performance of duties; however, the disability is not the natural and proximate result of an incident sustained in the service upon which his membership is based as alleged in the aforementioned application". As was no surprise, the Retirement System fully adopted the opinion of Dr. Goodman. My client was disabled, but not as the result of his use of force incident with the inmate, but rather as the result of a previous line of duty injury that did not involve any inmate. My client was found not entitled to the ¾ inmate related disability.

By letter dated May 12, 2006, we requested a hearing and redetermination of the denial – our client's appeal. The Retirement System acknowledged our request for a hearing by letter dated May 18, 2006. Among other things, our client was advised that he had to present medical evidence of his disability and he had two methods of doing this: 1) Present one or more medical experts at a hearing and have them testify; or, 2) Instead of having a doctor appear in person and testify, our client could rely on the medical documentation in the file and that this medical evidence could be supplemented with additional doctors' reports, hospital records, reports of diagnostic testing, etc, that are relevant to the claim. By letter dated May 15, 2006, we notified the Retirement System that our client opted to present the testimony of his treating orthopedic surgeon, John Labiak, M.D.

The hearing for Dr. Labiak's testimony was held on October 26, 2006, before the Hon. Maurice T. McElligott, Judicial Hearing Officer. Dr. Labiak was very well prepared for his appearance and testified exceptionally well: his testimony was clear, concise, consistent and professional. Dr. Labiak explained to the judge that it was the accident of November 9, 2004 that caused our client to have neck surgery and, therefore, it is that accident that is the cause of his disability.

It took almost one year for the Retirement System to schedule the appearance of its medical witness, Dr. Goodman. This hearing was held on October 4, 2007, again before Judge McElligott. As is routine in these cases, both the Retirement System and I submitted legal briefs to the Judge. Ours was submitted on December 10, 2007 and the Retirement System's on March 26, 2008. It is now September 15, 2008 and we are still waiting for a decision.

"How long will my case take"? It is a very important question and deserves a fair and reasonably accurate answer. It is an answer the Retirement System should be required to provide. Also, the Retirement System should be held accountable for unconscionable delays such as has occurred in this case.

As you know, we have been the official Nassau County PBA disability counsel since 1988, with our 20th year anniversary this month. We are not doing 20 years and out and we hope to continue to serve the PBA and Nassau's finest for many, many years to come. Stay safe and call or email us at 516-496-0400, ext. 4403 or mrada@fbrlaw.com, if you need any legal assistance.