Legal Report

While I was out on sick leave my law partner, Richard Brandenstein, was kind enough to take over writing the Legal Report so that you would continue to be informed. Although he did an excellent job, I am very glad to be back at work and doing the Legal Report myself. During the seven weeks I was out of work, recovering from quadruple coronary bypass surgery, I received many calls, cards, baskets of fruit and flowers from members of the "police family." I want to make sure you know how much I appreciate all the signs of friendship and concern. Thank you very much for that, it has meant a lot to me.

It is very important to revisit an issue that can have devastating consequences to a potential ¾ accidental disability or ½ performance of duty disability claim. In previous Legal Reports, I have discussed Sec. 364.3 of the New York Code of Rules and Regulations. This section deals with overtime performed while on restricted assignment and how this overtime can affect a disability claim. The section states that "(c) In the case of an applicant [for disability retirement] who, in connection with an alleged illness, disease, disability or physical limitation, has been continuously assigned to light, limited or restricted duties for at least one year prior to the date application for disability retirement benefits was filed with the Comptroller (whether or not the assignment was made pursuant to an organized light, limited or restricted duty program), and who has performed at least 100 hours of paid overtime, while on light, limited or restricted duty assignment during any 12-month period within the two-year period prior to the filing of the application for disability retirement, the employer shall provide a written description of the duties and/or physical or psychological requirements of the light, limited or restricted duty assignment. With respect to such applicants, the Retirement System shall render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment."

This section was applied by the Retirement System in the following context. A police officer filed for ¾ and ½ disability retirement in 2005, claiming he was permanently disabled for the performance of the full duties of a cop because of injuries sustained when he was stabbed in the right arm by an assailant. The applications were denied by the Retirement System on the grounds that the officer was not permanently disabled. The Retirement System used a "light duty" or "restricted assignment" as the definition of disability and to deny benefits. According to the Retirement System, since the officer worked more than 100 hours overtime in a 12 month period while on restricted duty before filing the disability applications, it was proper to apply Sec. 364.3, disapproving the applications because the cop was able to perform the restricted duty to which he was assigned.

At the hearing, the officer took the position that the overtime he worked should not negatively affect his claim because it was not voluntary overtime; rather it was compulsory overtime, ordered by a superior officer. The cop testified that he was a member of BSO, which the judge recognized to be "an elite highly trained unit for the Nassau County police department that deals with serious crimes, hostage situations, SWAT team operations and terrorist alert." Based on information received from the Nassau County Police Department, the judge further found that the officer "was often ordered by his superior to do overtime inside duty." The judge recognized the cop's legal position that "such overtime was compulsory and not voluntary."

In arriving at his decision in this case, the judge referred to a letter received from Kevin F. Murray, Deputy Comptroller, who wrote that the limit on overtime was to curtail attempts by members to unfairly increase their retirement benefits and abuse the disability retirement process. However, the deputy comptroller recognized that the cop's claim of the overtime being mandatory or ordered "present[ed] a unique set of facts and circumstances."

The judge's decision further states that "it appears clear that the purpose and intent of the regulation was to prevent a member from initiating steps to improperly boost pension benefits. However, such would not be the case where, as here, the overtime is mandatory and not voluntary. Excluding mandatory overtime from the purview of the regulation is an interpretation that is clearly within the authority and power of the Retirement System." Accordingly, the judge went on to decide that "the interpretation of the regulation and its scope, that is whether it applies only to voluntary and not mandatory overtime, must be resolved by the Retirement System" (emphasis ours). The case was sent back to the Retirement System for resolution.

The same Kevin F. Murray, Deputy Comptroller, referred to above, wrote the "Interim Final Determination" in this matter on behalf of the Retirement System. According to the Deputy Comptroller, "The regulation does not make a distinction between voluntary, scheduled, involuntary, mandatory, ordered, court ordered or non-scheduled overtime. Even if definitions of these terms in the context of this regulation are viable, the Retirement System finds that the regulation must be adhered to in its unqualified language. Overtime is overtime, no matter how the applicant or an employer describes it."

"Overtime is overtime" according to the Retirement System. There are no allowances for any reasonable explanations or exceptions. This is not the first time that the Retirement System has adhered to a completely unreasonable and ridiculously narrow definition, much to the detriment of its members who become disabled on the job and through no fault of their own. Consider also that this Retirement System takes the position that a cop assigned to light duty accumulates time to the two year limit regarding work on restricted assignment even when out sick. Just how concerned is this Retirement System about its injured and disabled members? It does not appear to me that the Retirement System is very much concerned at all.

The lesson here, unfortunately, is complicated. The Police Department’s manual requires you to obey a lawful command from a superior officer. The manual also requires you to give the department a to/from notifying it that you intend to file an application for disability or that you intend to appeal a denial. You must pay attention to the overtime issue as soon as you are assigned to light duty following a line of duty injury which may be basis for a disability claim. If you are on restricted assignment and you are considering filing an application for disability retirement, you will need to very, very carefully consider what you will do about overtime. For the time being, since this matter will be appealed to the Appellate Division, remember the position of the Retirement System – overtime is overtime.

If you have any questions or concerns about Workers’ Compensation, Social Security Disability, Personal Injury lawsuits, Disability Retirement, or any other medical/legal matters, please call me at 516-496-0400, ext. 4403.

It is so very, very good to be back!