Legal Report

The main reason for denials of accidental and performance of duty disability pensions is because the Retirement System decides that the applicant is not disabled for the performance of his/her duties. This is a medical denial and many cops wonder how this happens when their own treating doctor has told them that they are too disabled to work and they should receive disability retirement benefits. So, how does it happen?

In order to qualify for either a ¾ accidental disability benefit or a ½ performance of duty disability benefit, the cop must prove that he is permanently "physically or mentally incapacitated for performance of duty." In order to meet this burden, an applicant will have to collect all relevant and material medical documentation from all treating sources, which may include: medical doctors, hospitals, clinics, physical therapists, chiropractors, acupuncturists, podiatrists, optometrists and psychologists. In addition to the treatment or office notes provided by the treating sources, it is usually necessary to obtain a narrative medical report from the treating source as well.

A narrative medical report, provided by any of the applicant's treating sources, should set forth the medical information needed by the Retirement System to evaluate the claim. This medical information will include: history of the accident (how the cop got hurt); complaints related to the injury, such as pain, restricted motion, or stiffness; past medical history (prior injuries, particularly to the same body parts now being claimed as the cause of disability); clinical findings on examination (spasm, atrophy, muscle weakness, etc.); diagnosis; prognosis; statement as to the degree of disability (is the cop permanently disabled for the performance of the full duties of a police officer; is the cop capable of restricted duty or a sitting type of job); and, is there a causal relationship between the disability and the date of injury. Although some doctors charge a great deal of money for a narrative report, some charging in excess of $1,000.00, these reports are required because the doctor’s notes usually do not address degree of disability, prognosis or causal relationship.

In addition to making sure that reports and records are submitted from all treating sources, the applicant's medical submissions must also include all objective test results (MRIs, CT Scans, X-rays, myelograms, etc.), laboratory test results and operative reports. It is also very helpful to submit a list of all medications, who prescribed the meds and the dosages being taken. If there are any significant side effects from the meds, these should be brought to the attention of the Retirement System also.

In many cases, the applicant has also been examined by a doctor at the request of the Workers' Compensation insurance carrier. These exams are characterized as "independent medical examinations" or IMEs. Sometimes these IME doctors find that the cop is not able to engage in the full duties of a police officer. All IME reports detailing the cop’s inability to engage in full police duties should also be submitted to the Retirement System.

So now the cop has submitted his/her application for ¾ accidental disability or ½ performance of duty disability retirement benefits, supplemented by his treating sources' reports of causally related permanent disability, hospital records, laboratory and objective test results, and supportive IME reports. It looks good - the treating doctors' opinions are consistent with each other and are supported by the objective test results. Moreover, the treating doctors’ opinions are further consistent with the reports of the IMEs. The applicant thinks to himself, "All my medical evidence is in order, all my treating sources say I am disabled, my medical file appears to be complete, I have to get approved."

At this point enter the Retirement System's medical expert, in the person of Dr. Mazella, Dr. Illman, Dr. Toriello, Dr. Dermksian, Dr. Jeffrey Meyer or Dr. Tambakis. The Retirement System has the right, pursuant to Section 374 of the Retirement and Social Security Law, to have an applicant examined by a doctor, or doctors, in connection with a disability application. The Retirement System's medical expert will provide a narrative report to the Retirement System containing the required information. If the Retirement System’s medical expert fails to provide any of the required information, the Retirement System will send the doctor a request for an addendum specifically addressing the missing information. When the Retirement System's medical expert informs the Retirement System that the cop is not disabled or that the cop is disabled but not as the result of the claimed accident, the Retirement System virtually always accepts the findings of its medical expert, to the exclusion of all the medical evidence provided by the cop in support of his claim.

This happens because there is no requirement that the Retirement System give any greater evidentiary weight to the treating sources as opposed to the medical expert hired by the Retirement System. Unlike the Social Security law, which has a "treating physician rule," no such rule exists in claims involving the Retirement System. To better understand this situation, the Social Security law's treating physician rule provides as follows: "Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s)s and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations [another term for IME] or brief hospitalizations. If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight." It would make great sense for the Retirement System to adopt a "treating physician rule."

After the cop is denied retirement benefits because"(s)he is not permanently incapacitated for the performance of duties," on the basis of the Retirement System's medical expert's opinion, the cop can request a hearing and redetermination. If the cop is denied again at the hearing (appeals) level, the next step is bringing a special court proceeding under Article 78 of the CPLR.

The Appellate Division, Third Department has repeatedly decided in these cases that on applications for accidental and performance of duty disability benefits, the Comptroller "possesses the authority to resolve conflicting medical evidence and to credit the opinion of one expert over that of another, so long as the credited expert articulates a rational and fact-based opinion premised upon a physical examination and consideration of the relevant medical records."

The same medical evidence that will get you an approval on a federal claim for Social Security disability benefits might not be enough to win your claim for accidental or performance of duty disability benefits, even though the Social Security definition of disability is far more strict and narrow than is the definition of disability for accidental or performance of duty disability retirement.

Switching to another matter, a recent situation illustrates the importance of understanding that Workers' Compensation benefits, now $600.00 per week for accidents after July 1, 2009, are paid in addition to performance of duty disability benefits. However, this Workers' Compensation benefit can be defeated by the insurance carrier on a theory of "volunteer withdrawal from the labor market," meaning that the cop voluntarily retired because (s)he had reached the time when he was able to do so. Be very careful about submitting an application for service retirement or performance of duty disability retirement because under some circumstances doing so can be the kiss of death to your Workers' Compensation weekly payments. Recently, President Jimmy Carver and the PBA came to the rescue of a cop who filed a performance of duty application and was denied Workers’ Compensation payments because he had done so.

If you have any questions or concerns about disability retirement, Social Security disability benefits, Workers’ Compensation or personal injury lawsuits, please contact me at 516.496.0400, ext. 4403, or at mrada@fbrlaw.com.