Legal Report

Since we began representing the Nassau County PBA in October 1988, one of the most frequently asked questions has been, “How long will my disability case take”? This question has always been difficult to answer with any precision, but I was able to provide general time frame parameters, until now. I am currently involved in a case, representing a PBA delegate, which is so terribly delayed that I think I will no longer make any attempts in the future to offer an answer to “How long does it take”?

From my prospective the undue delay in this claim could not have happened to a worse client. But it does illustrate that I have no control over the time frames. You may recall the story some years when a patient was kept alive on an artificial heart machine and then-President Bill Clinton phoned him to offer congratulations and support. When the former president asked if there was anything he could do to help, the patient asked Clinton if could assist in speeding up receipt of Social Security disability benefits.

The application for ¾ disability benefits in the case of the PBA delegate was filed on February 13, 2007, stating that the cop was permanently disabled because of injury to the left knee, which happened when, “While on duty and at work in the process of administering a breath test, I advised the subject that he would not be able to leave police headquarters because his BAC was .17. The subject became enraged and violent – he began to fight and wrestle with me in the testing area. With the assistance of other police officers, we finally gained control over the subject and brought him to the waiting bench. At the waiting bench, the subject began to bang his head against the wall, stating that he wanted to kill himself. I assisted the arresting officer in attempting to gain control over the subject again; he kicked me in the left knee causing my left knee to twist and causing pain. I fell into the waiting bench and then fell onto the floor striking my left knee on the floor, causing further pain at my left knee and resulting in the injury and disability to my left knee”.

The claim progressed routinely at this point, with the Retirement System sending a letter dated March 12, 2007 to my client requesting proof of date of birth, returning an option election form and providing the Retirement System “with a statement listing the tasks your disability now prevents you from performing that you performed regularly before the onset of your disability.” The requested documents were sent to the Retirement System on March 23, 2007. During this time, we were also collecting medical evidence from various sources and submitting the documentation to the Retirement System.

The first shock in this case came when we received a determination dated May 8, 2007, from the Retirement System, informing us that the application was denied on the basis “that the incident alleged to have occurred on 12/31/2003 does not constitute an ‘accident’ as this term is used in Section 363 of the Retirement and Social Security Law.”

On May 25, 2007, I wrote a letter to the Retirement System explaining that the denial was clearly erroneous on its face and as a matter of law. I enclosed a copy of the decision of the Appellate Division, 3rd Dept., Matter of Barbara Ammann v. New York State Comptroller. As a matter of protection for our client, we filed a request for hearing and redetermination dated June 6, 2007.

To the credit of the Retirement System, it conducted a careful review of our claim and the applicable case law. On June 11, 2007, we were notified that the Retirement System rescinded its denial of the application for ¾ disability benefits without the need of going through a formal appeal, which would have involved at least one hearing, the preparation of legal briefs and substantial cost to our client. This would have taken much, much longer! Finally, the Retirement System undertook medical development of the claim.

On October 15, 2007, we submitted certain specific medical information requested by the Retirement System, including updated records from the treating physician and records from a hospitalization.

On November 1, 2007, my client and I were notified that the Police Department filed a performance of duty disability application on behalf of my client with the Retirement System. On March 27, 2008, the Police Department responded to the Retirement System’s request for information concerning the amount of overtime worked by my client during relevant periods of time. The Retirement System had sought this and other information from the employer for quite a long period of time. It is still a mystery as to why the case stalled at this point for as long as it did.

Then our client was finally requested to see a medical doctor for an examination wanted by the Retirement System. However, our client had previously been examined by this physician, so another appointment had to be arranged. It took until July 1, 2008 for the Retirement System to notify my client to arrange another medical examination, this time with Richard L. Parker, M.D., in Merrick. The appointment was scheduled for July 24, 2008.

After reviewing his report, the Retirement System determined an addendum from Dr. Parker was necessary to address the issue of causal relationship, i.e., the Retirement System needed a statement from Dr. Parker whether within a reasonable degree of medical certainty, my client’s disability was caused by his work related accident.

The claim was now almost 1 ½ years old, and we still did not have an initial determination since the “no accident” determination had been rescinded. The Retirement System became mired down in obtaining Dr. Parker’s addendum on the question of causal relationship. We needed to do all we could to service a client who was becoming exceedingly frustrated and impatient.

As the Retirement System continued to demonstrate its inability to obtain the addendum from Dr. Parker, my paralegal professional, Carol, attempted to expedite the Retirement System’s receipt of the addendum. Carol began to make weekly calls to Dr. Parker’s office, requesting that the addendum sought by the Retirement System be faxed to them. Carol did make contact with Dr. Parker’s secretary who stated that the addendum had been done and sent to the Retirement System. So, according to the Retirement System, it needed the addendum. According to Dr. Parker’s office, the addendum had been sent to the Retirement System. According to my client, he was being driven crazy by the interminable delay. Finally, an addendum from Dr. Parker, dated December 1, 2008, was faxed to the Retirement System. Not satisfied with receipt of the addendum, the Secretary of the Medical Board, Joseph T. Lennon, wrote a letter to Dr. Parker dated January 23, 2009. In this letter, Mr. Lennon asserts that, “It is my understanding that Carol from Mr. Rada’s office engaged in tactics that could be deemed as harassment of members of your staff to obtain a copy of the addendum”.

Interestingly, there were NO complaints from Dr. Parker’s office about Carol to anyone. Further, my paralegal was not trying to get a copy of the addendum sent to us, but rather attempting to get it sent to the Retirement System so as to move the case along, for the benefit of our client and the Retirement System. We know that we can get copies of all medical reports prepared by the Retirement System’s medical experts directly from the Retirement System. There is no reason for us to waste our time chasing down a copy of an addendum for us. Here, we were doing everything in our power to assist the Retirement System and our client. Instead of being thanked by the Retirement System, we were spanked.

The odyssey of this claim continues with the Retirement System advising us, after waiting for the addendum from Dr. Parker and reviewing it, that Mr. Joseph Lennon presented our client’s case to the Retirement System’s Medical Board on January 27, 2009, almost two years to the day since the application was filed. According to Mr. Lennon, the Medical Board reviewed the medical records in the case but that “at this time there is insufficient information to make a final recommendation regarding the permanency of your disability. In the opinion of the Board, you have not reached maximum medical improvement. Therefore, the Retirement System is requesting that you be reexamined and reevaluated in approximately six moths and is deferring a final agency determination with respect to your disability retirement application until that time”. It is very safe to say that there will not be a decision in this case before 2 ½ years has gone by! That is much, much too long!

The next time a client asks me how long it will take for the Retirement System to make an initial determination on an application for disability retirement I’ll answer honestly and based on this experience: “It all depends”.

If you need assistance with claims for Social Security, Workers’ Compensation, disability retirement, Sec. 207-c matters, World Trade Center Presumption Law claims, personal injury lawsuits or veterans’ disability claims, please do not hesitate to contact the official PBA disability counsel, Fusco, Brandenstein & Rada, P.C., at 516-496-0400 ext. 4413 or mrada@fbrlaw.com.

• “Officer was driving a police car during a storm and struck a tree limb that had fallen. Officer called work next day and complained of back pain.”
• “While on duty and at work, walking toward ramp area, my right foot became entangled in a protruding coil of hose, causing me to trip and injure my back” (PANYNJ cop).
• “While on duty and at work, walking toward the side rear door of Bldg 269 I accidentally slipped on black ice causing me to fall, resulting in injury to my neck, left shoulder and additional injuries to my back” (PANYNJ cop).
• “While on duty and at work, operating an unmarked police car, I was stopped at a red light when another vehicle, hit in the rear by another car, crashed into the rear of the stopped unmarked police car, causing my injuries and disability”.
• “While on duty and at work, I responded to a working fire. Upon arriving at the fire, I saw people in the windows screaming for help. I ran out of my RMP and jumped over a 3ft picket fence. I ran 2 to 3 steps, running on cedar chips which covered a black slippery and slick plastic which I could not see. I slipped on the plastic and twisted my knee and had immediate pain”.
• “While on duty and at work, I responded to a domestic call at which the defendant struck me under the chin with an upward, forward open handed motion; the defendant also applied a steady hold and squeeze to my face, jaw and chin, resulting in my injury and disability”.
• “While on duty and at work, providing aid to a pedestrian who was struck by a car, with the car being driven through a store front plate glass window, suddenly and unexpectedly the glass fell out of the store’s window and severed 5 tendons in my right hand”.
• “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 turn, causing the collision between that car and the RMP, causing my injury and disability”.
• “While on duty and at work, during a VTL investigation of a tractor trailer during the Republican Convention in NYC, I fell into an uncovered manhole, not visible to me because it was dark and there was no lighting. The manhole I fell into was 1 foot in diameter and 4 ½ to 5 feet deep. I injured my left elbow and left hip. The accident happened shortly after 9:00 PM”.
• “While on duty, as a member of the motorcycle unit of Highway Patrol, I was participating in a funeral escort. While operating my motorcycle with emergency lights on, a vehicle made a left turn in front of my motorcycle and stopped his vehicle. To avoid hitting the vehicle that turned in front of me, I braked suddenly and hard, causing the motorcycle to go into a skid. The subsequent collision between my motorcycle and the other vehicle and ejection from the motorcycle resulted in my injuries and disability. The vehicle that made the left hand turn was issued a summons for failure to yield the right of way”.
• “While on duty and at work, driving a marked police car without lights or sirens on, I entered an intersection with a green light; the other vehicle failed to stop at his red light and I struck that vehicle as it entered the intersection against the light. The other driver was arrested for DWI. I injured my back”.
• “Officer while on duty working at the precinct at the desk tripped and fell over an open desk drawer. He fell and sustained a laceration to left leg; chipped bone on right knee and sprained right knee also sustained lower back pain”.
• “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”.

It is extremely rare for a denial of ¾ retirement benefits to reach the NYS Court of Appeals. However, on December 18, 2008, the highest court in New York State did decide an “accident” case. In the case of In the Matter of Paul G. Kenny, Appellant v. Thomas P. DiNapoli, as New York State Comptroller, Respondent, the court noted “In the context of accidental disability retirement benefits, we have defined an accident as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" and we have indicated that "an 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" (Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982]). In this case, the Comptroller denied the application for accidental disability retirement benefits because petitioner, who slipped on a wet ramp while exiting a restaurant, knew that the ramp was wet and therefore knew of the hazard that led to his injury before the incident occurred. In other words, the Comptroller was not persuaded that the incident involved an "unexpected event." Because the Comptroller's conclusion is supported by substantial evidence in the record, the determination was properly confirmed”. Kenny is a police officer.

As an exercise to keep you up at night self inflicting some torture, determine how each of the listed injuries falls within the definition of “accident” as cited by Court of Appeals. Keep this definition in mind when you evaluate your own injury following a mishap at work.

If you need us for assistance with claims for Workers’ Compensation, Social Security Disability, Personal Injury and Accidents, Veterans Disability (VA), Disability Retirement or 207-c issues, please call us at 516-496-0400, ext. 4403 or email at mrada@fbrlaw.com. Until the next Legal Report, stay safe out there!