Legal Report

As the use and popularity of social networking websites (Facebook, Twitter, MySpace, LinkedIn, etc.) increases, I thought it wise to reprint this article, which appeared in Newsday: "Insurance lost over photos. A woman on long-term sick leave for depression says she lost her benefits because her insurance agent found photos of her on Facebook in which she appeared to be having fun. Nathalie Blanchard has been on leave from her job at IBM in Bromont, Quebec, for the last year. But the payments dried up this fall and when Blanchard called insurer Manulife, she says she was told she was available to work because of Facebook. She said her insurance agent described several pictures Blanchard posted on Facebook, including ones showing her having a good time at a Chippendales bar show. Blanchard said Manulife told her it's evidence she is no longer depressed. She's fighting to get her benefits reinstated. Manulife wouldn't comment." A picture is worth 1000 (or more) words!

For those of you who are suffering from any injury or impairment resulting from service at the World Trade Center terrorist site please be aware that Gov. Patterson signed a law opening a window of opportunity to sue New York City which extends until October 2010. If you have not already filed an action, of if you are not already part of a class action and you think that this new legislation may affect you, please call us at 1.800.416.5454, ext 4455 so that a consultation may be arranged.

Turning to the Retirement System, applicants appealing denials of claims for performance of duty and accidental disability retirement to the Appellate Division, 3rd Department, continue to get beat up. It appears as if the Retirement System wants to solve the state's financial difficulties on the backs of disability applicants who are already hurting enough. The Appellate Division continues to make very bad law for applicants by persistently deferring to the comptroller in these cases. Not only has the court shrunk the definition of "accident" to anorexic proportions, but applicants find themselves getting denied on the medical side as well.

According to the statute, in order to qualify for accidental or performance of duty disability benefits, the applicant must be "Physically or mentally incapacitated for performance of duty." The Retirement System interprets this to mean that the applicant must be permanently disabled for the full duties of a police officer, unless the cop has worked too much overtime while on restricted duty, or has been on restricted duty for more than two years before filing a disability application, in which case the cop has to show (s)he is permanently disabled for the performance of the restricted duties that have been performed. In many cases the cop will present to the Retirement System what appears to be overwhelming evidence of disability. The treating physician, or physicians, report to the Retirement System that the cop is permanently disabled and so does a Workers' Compensation independent medical examiner. These opinions are fully supported by diagnostic tests such MRI's, CT scans, EMG's, myelograms, etc. Very often the applicant has undergone complete treatment programs including a medication regimen, physical therapy, pain management, and ultimately surgery, which does not correct the problem to the point that the cop can return to full duty. Also, the cop has seen the Police Surgeon on numerous visits, who has maintained the cop on restricted duty over the course of many months and even years. And, despite all of this evidence that speaks to disability, the cop is denied a disability pension on the basis that (s)he is not permanently disabled for the performance of duty.

A recent decision from the Appellate Division illustrates how this happens. In this case, a police officer sustained an injury to his left wrist while teaching a defensive tactics training class. His initial application for performance of duty disability retirement benefits was denied based partly upon medical testimony indicating that his injury was easily treatable through a routine surgical procedure. Despite undergoing the recommended surgery, the cop's wrist did not improve and, in 2005, he again sought performance of duty disability retirement benefits. After his application was disapproved the cop requested a redetermination and hearings were held. A Hearing Officer subsequently determined that the cop was not permanently disabled from performing the duties of a police officer and denied his application.

The Court observed that, "As an applicant for benefits, [the cop] bore the burden of proving "that he was permanently incapacitated from performing his duties as a police officer". To that end, [the cop] offered testimony regarding his current symptoms and the manner in which they prevent him from, among other things, firing and safeguarding his weapon, operating an emergency vehicle or restraining a combative suspect. He also submitted, in addition to other medical records, the report of his hand surgeon, Andrew Kleinman, who opined that [the cop] is "permanently partially disabled" and suffers from wrist pain that is "probably not correctable." In contrast, John Mazella, a board-certified orthopedic surgeon who examined [the cop] at the request of the New York State and Local Retirement System on multiple occasions, testified that [the cop] was not permanently incapacitated from performing the functions of a police officer. Indeed, Mazella opined that there was no physiological evidence to support [the cop's] subjective complaints of wrist pain and "no orthopedic disability precluding his full duty status."

The court noted that "It is well settled that "[the Retirement System] possesses the authority to resolve conflicts in the medical evidence and to credit one expert's opinion over that of another, so long as the credited expert articulates a rational and fact-based opinion founded upon a physical examination and review of the pertinent medical records". Accordingly, inasmuch as Mazella's opinion satisfies the foregoing criteria, respondent's determination is supported by substantial evidence and we decline to disturb it".

Compare the Court's view of no greater weight being allocated to the opinion of disability by the treating doctor with the Social Security Administration's "treating physician rule", which does NOT apply in accidental or performance of duty claims: "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) 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 or brief hospitalizations. If we find that a treating sources' 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." The Retirement System's and the Appellate Division's take on medical evidence is far less applicant friendly. While a treating doctor's opinion may be enough for you to prevail in a Social Security disability claim, it may not be enough for you to succeed with a claim for accidental or performance of duty disability benefits. It is extremely important for you to be properly prepared for the Retirement System's expert's medical examination.

On behalf of the firm, I wish you all a happy, healthy, and prosperous New Year.