Legal Report

Just a few weeks ago the PBA held an educational seminar for its officers, trustees and delegates. This was part of the PBA’s ongoing efforts to provide continuing education to the people who run the PBA and supply information and guidance to its members. There are some items that I want to stress here as well. Please check your auto insurance policy and make sure that you have supplementary underinsurance coverage. You can purchase an amount up to the amount of your own insurance policy and it is inexpensive. This will provide protection for you and your family in the event that the other party is responsible for your injuries but is carrying minimal insurance. Please also be sure that if you visit the emergency room in the event you suffer an on duty injury, be sure to file a Workers’ Compensation claim. The reason for this is that we have learned of some police officers who were treated in emergency rooms for line of duty injuries, but failed to Workers’ Compensation claims. When they are in the process of buying a house, they find out that they have a very poor credit score because of an unpaid emergency room bill and it is now too late to file a Workers’ Compensation claim to clear up the bill. (You have two years from the date of injury to file a Workers’ Compensation claim with the Workers’ Compensation Board).

With respect to claims for accidental and/or performance of duty disability benefits, keep in mind that you need to file the applications before you have been on restricted duty for a continuous period of two years. If you are out sick while on restricted duty, this does not stop the clock from running on the two year mark. So, if you have been assigned to restricted duty and then you have surgery that keeps you out of work for four months, those four months bring you closer to the two year point by which you must file the application(s).

A very interesting case was reported on April 15, 2010 that provides some key insights not only into what medical evidence you might need to win your disability case, but also into a particular element of medical proof that an applicant is required to prove. The case, Matter of Emerson v. DINAPOLI, involves a female police officer who was working undercover investigating drug dealers who were also suspected of raping women. During the course of the investigation in one particular incident in April 1997, the police officer was apparently given a date rape drug, assaulted and almost raped by a target of the investigation. The cop was forced to resign her position as part of a plea deal involving her theft of at least one credit card. She then applied for both accidental and performance of duty disability benefits. Her claims for both benefits were initially denied by the Retirement System and she then requested a hearing, following which the Hearing Officer again denied both accidental and performance of duty disability benefits. However, it was found that the cop was disabled as the result of her psychiatric condition but that the April 1997 event was not the proximate cause of her disability.

At various times I have been asked to not only give examples of events that are not accidents, but examples of events that do amount to accidents for retirement system purposes. So, in this case we know that if while doing an undercover investigation, the female cop is given a date rape drug, is assaulted and almost raped, that will constitute an accident for ¾ purposes. Furthermore, in this case, not only did the Retirement System agree that an accident had occurred, but that the cop was totally disabled for the performance of her full duties as a police officer. So what’s left? Why was she denied both accidental and performance of duty disability benefits?

The only contested medical issue was causal relationship, whether the cop’s disability was proximately caused by the April 1997 event. As in all matters relating to the disability claim, it is the cop’s burden to prove proximate cause to the April 1997 event. Unfortunately for the cop, her doctors submitted medical reports opining that her psychiatric condition was related to stressors from her job, but none of the doctors limited the causation to the April 1997 event alone. Apparently, if the cop had some sort of emotional/psychological problems before the April 1997 event, medical evidence was not produced showing that the April 1997 event exacerbated or worsened her condition, or caused a latent condition to become active and acute.

According to the Appellate Division Court, “In addition to stressors from 16 years as a police officer, including more than six years in narcotics, [the cop’s] medical records indicate that she experienced depression and anxiety due to the deaths of close family members, marital discord and a divorce from her second husband, a disappointing custody situation, and the criminal charges that ultimately required her to resign from her job.[The Retirement System] accepted the opinion of [its] expert, who found no causal relationship between the one cited incident and [the cop’s] disability. Considering the various potential sources of mental distress that confronted [the cop], the generalized opinions of [the cop’s] doctors, and [the Retirement System’s] authority to resolve conflicts among expert opinions, substantial evidence supports [the Retirement System’s]determination that [the cop] failed to meet her burden of proving the causal relationship between her disability and the April 1997 incident.”

This decision makes it clear that in order to succeed on an accidental and/or performance of duty application, the disability must not only be established, but it must be shown to be causally related to a specific accident or accidents in the line of duty. Remember, in April 1997, whatever psychological problems that police officer may have had, she was capable of working full duty. Even if she had a history of some depression, anxiety, or other psychological problems, in April 1997, none of these problems singly or in combination prevented her from working. It appears to me that the police officer failed to carefully address the legal requirements for the benefits she sought in the medical records that she submitted. Or, perhaps, she did not submit medical records and counted on the Retirement System to obtain her medical records. It seems to me that something went wrong in the development of this case, because from the Court’s decision, it appears to me that this cop should have received her accidental disability retirement benefit. The cop in this case was cheated out of her disability retirement benefit by a Retirement System that failed to properly evaluate the medical evidence as well as the facts and an Appellate Division that basically rubberstamps the determinations by the comptroller. It is vitally important to know what your medical evidence has to prove.

If you need help with your disability retirement claims, Workers’ Compensation, Social Security or personal injury claims, do not hesitate to contact me at 516-496-0400, ext. 4413 or e-mail at mrada@fbrlaw.com. Stay safe.