Legal Report

This is how it happened. Following a radio call for a burglar, a police officer was in foot pursuit of the bad guy through some residential backyards. The chase was successful and the burglar was apprehended. However, unfortunately the police officer suffered shortness of breath and chest pain. His partner drove him to the hospital. The police officer had suffered a heart attack. What are the police officer's rights and what benefits is he entitled to?

It has become clear to me that there is some confusion regarding disability due to a heart related impairment. The police officer who had shortness of breath and chest pain after chasing the prep, must be sure to follow NCPD Rule 7, Article 7, which states that "Full pay will be granted to Members of the Force for injuries received while acting within the scope of official duties when such injury has been reported to the member's Commanding Officer within seven (7) days after the injury was sustained and it can be conclusively shown that the disability was actually received while the member was performing police duty and that no negligence on the member's part contributed thereto." This section cautions the injured police officer that "This time limit may not be extended except by approval of the Commissioner of Police."

Assuming that the police officer in this case did give the notice within the required seven days, and he has been out of work since the date of the heart attack, is he entitled to full pay? Section 207-c of the General Municipal Law provides for the payment of full salary to police officers who are injured in the performance of duty or who are taken sick as a result of the performance of duty. It is this section of the law that provides for unlimited sick leave to a qualifying police officer, paid until the officer's disability ends, or the police officer is able to return to restricted duty. The police officer cannot be fired because he cannot work, nor can the police officer be forced to retire. The Police Department does have the right to submit an application on behalf of the police officer for a ¾ accidental disability retirement benefit or a 50% performance of duty disability retirement benefit, or both at the same time. If the Retirement System denies the applications, the police officer's employment cannot be terminated and the police officer will remain on restricted assignment until such time as he can do full duty, if that time ever comes. Of course, the police officer can submit his own service retirement application at any time after he has the required 20 years of service. The Police Department cannot submit a service retirement application on behalf of the police officer, nor will the Retirement System entertain a 33 1/3% ordinary application filed by the Police Department for a police officer who has been paid benefits pursuant to Section 207-c.

It is clear as ice that the police officer in this example suffered his heart attack as a result of the performance of duty – a heart attack suffered during or immediately after chasing a perp. Yet, incredibly, the Nassau County Police Surgeon has determined that the heart attack was not sustained in the line of duty. The denial of line of duty status sets in motion the medical review process.

Why did the Police Surgeon deny line of duty status in this case? I believe that the Police Surgeon failed to acknowledge and failed to follow a very basic principle of disability law: when an accident produces injury by precipitating the development of a latent condition or aggravates a preexisting condition, then that accident is the cause of the injury. Applying this rule to the set of facts we have, we know that the police officer was performing full duty at the time of his heart attack. Let's assume the police officer did have underlying heart disease in the form of significant arterial blockages. Even so, the underlying heart disease did not prevent the officer from doing full duty. It was the running after the prep that aggravated the underlying condition to the point of causing the officer to have a heart attack. Following the principles as spelled out in the New York State Court of Appeals decision in Tobin v. Steisel would have resulted in the correct decision for this police officer. I am certain that the Police Surgeon's error will be corrected in Medical Review.

Assuming the police officer's heart attack is so severe that he cannot return to full duty, can he qualify for a ¾ accidental disability pension? You may have heard that Nassau County police officers do not have a "heart bill." Nassau County police officers do not have a ¾ heart bill. By using the term "heart bill," I am referring to the benefit available to NYC police officers who, if they have a heart impairment resulting in disability, there is a presumption that this cardiac disability is the "natural and proximate result of an ACCIDENT," thereby entitling the NYC police officer to a ¾ disability pension. Of course, this presumption can be rebutted by the NYC Police Pension Board by "competent evidence."

So, where does that leave our Nassau County police officer? Under Section 363-a2 of the Retirement and Social Security Law, the Nassau County police officer who is disabled due to a heart impairment also gets the benefit of a presumption, but only to the extent that the cardiac disability was "incurred in the performance and discharge of duty," thereby entitling him to only a 50% disability pension. This presumption can also be rebutted by "competent evidence." However, a Nassau County police officer may also be able to prove entitlement to Workers' Compensation benefits for his heart disability, which can result in an additional tax free payment of $400.00 per week, thereby raising the 50% disability to somewhere in the neighborhood of 70% to 75%, depending on the salary of the disabled police officer. It should be noted that there is no "line of duty" presumption for Workers' Compensation benefits and New York City police officers are not covered under New York State Workers' Compensation law.

Assume for a moment that instead of suffering a heart attack running after a perp, the police officer has a heart attack following the use of physical force to effect the arrest of a violent mental aided. The police officer is kicked and punched in the chest during the struggle with the perp and has a heart attack. The cop is not ever able to return to full duty. Under these circumstances, the manner in which the injury – the heart attack – occurred would be an "accident" within the meaning of the law, and the cop could qualify for ¾'s, assuming HE can prove that the heart attack is causally related to the kicks and punches to the chest. There is no presumption for Nassau County cops that an impairment of the heart is causally related to an "accident." Remember, in my original example, the cop had the heart attack after running after the bad guy. Running after the bad guy is not an "accident."

A police officer who is rendered unable to do any work because of a severe heart impairment can also qualify for Social Security disability benefits, which would be payable in addition to a ¾ benefit or a 50% performance of duty benefit plus a Workers' Compensation benefit.

Should you have any questions concerning Workers' Compensation, Social Security disability, accidental or performance of duty disability benefits, Medical Review or personal injury law suits, please do not hesitate to contact me at 516-496-0400, ext. 4413 or mrada@fbrlaw.com.