Legal Report

By now, regular readers of this column know that applications for disability retirement, whether accidental disability retirement (75%) or performance of duty (50%) must be filed before being continuously assigned to restricted duty, or light duty, for two years. In calculating this two year time period, the Retirement System will include any time that the cop is out sick. So, for example, if after being assigned to Restricted Duty for an injury to the right shoulder, the cop is out of work on line of duty sick for three months due to surgery to the right shoulder, those three months out of work accumulate and count toward the two year time period.

If an application for either benefit is filed after the cop has been continuously assigned to restricted or light duty for two years, then a light duty standard will be used against which the disability will be measured. This means that the Retirement System will determine whether or not the injured police officer is permanently disabled for the performance of the light duty that he or she has been performing. In this situation, the only hope for obtaining the disability benefit is to try and prove that the injured cop cannot do light duty on a permanent basis. This standard of disability is obviously far more difficult than attempting to prove that a cop cannot do full duty. As a matter of fact, the overwhelming numbers of my clients applying for disability retirement are performing restricted duty.

I am in the middle of a case now that involves this two year rule, which we entered at the appeals level. This case is also very instructive in addressing the question of "how long will my case take?" This is not an easy question to answer and this case will show you why. A female police officer filed applications for accidental disability and performance of duty disability retirement benefits on July 5, 2007. She described two accidents on her applications: on 06-12-05, she was injured when "dealing with a prisoner, the female prisoner bent back my right ring finger"; on 10-02-02, "involved in an altercation with a prisoner, injured right wrist." As the Retirement System does in every case, this female police officer was sent to a doctor to be examined on behalf of the Retirement System. In this case, the doctor examining for the Retirement System, Dr. Edward A. Toriello, determined that the cop is not permanently disabled for the performance of the full duties of a police officer. The Retirement System, in typical fashion, relied on the opinion of Dr. Toriello and proceeded to issue a determination denying disability benefits to the cop on the basis that she was not permanently incapacitated for the performance of her full duties as a police officer.

In addition, the Retirement System found that the event of 10-02-02, when the cop injured her right wrist in an altercation with a prisoner "does not constitute an accident within the meaning of that term as used in Section 363 of the Retirement and Social Security Law." The more recent injury of 06-12-05, when the cop was injured when her right ring finger was bent back, was accepted by the Retirement System as an accident.

In order for the cop to succeed on appeal, she would have to show that she was permanently disabled for the performance of a full duty cop and that the injury of 10-02-02 was an accident within the meaning of the law. The significance of the 10-02-02 injury is that the Retirement System found that it was this injury that was the cause of the cop's disability. Therefore, the finding that the 06-12-05 injury was an accident is not of great significance if it is not the cause of the cop's disability.

Following the hearing, the Judicial Hearing Officer found that the injury of 10-02-02 was not an accident. The rationale for this finding was that "The applicant was searching a hostile, uncooperative suspect who was spitting at her and two officers. In the efforts of the three officers to quell the suspect, the applicant's wrist was lodged against a table, with the weight of the three persons on her arm, and her right wrist was injured. The applicant and her fellow officers were engaged in their duties, with no intervening extraneous force. The cause was the action of her fellow officers in subduing the prisoner in pursuit of their normal duties. This incident does not constitute an accident."

However, despite Dr. Toriello's report slamming the cop's disability case, to his credit, on the issue of the medical disability questions, the Judicial Hearing Officer found that the cop is permanently disabled for the full duties of a police officer and awarded her a 50% tax free performance of duty disability pension. You might be thinking that this is the end of the story, with the cop walking away with at least something.

Not so fast. The case was reviewed by the Deputy Comptroller, as most such cases are, and the award of performance of duty benefits was nullified with that application sent back to the Disabilities Services Bureau to establish under which standard the application should be processed, i.e., restricted or full duty. If the case stays a full duty case, our female cop gets her 50% performance of duty disability pension. If the case morphs into a restricted duty standard, then she does not get her disability pension because she has been doing restricted duty for some years already. The problem here is that this cop was on restricted duty beginning June 13, 2005 and her applications were filed July 5, 2007, less than a month beyond the two year limit. However, during the period July 21, 2006 through February 2, 2007, our female police officer was on maternity leave. Should the Retirement System treat the maternity leave as any other sick leave and count that time towards the two years? Or, should the Retirement System, as we have argued to it, make an exception for the maternity leave on the basis that it is not sick leave? Our client went directly from restricted assignment to maternity leave. We will publish the result of this case. But for now, let this case stand as a warning: if you go from restricted duty to maternity leave, that maternity leave may take you beyond the two year time frame.

My partner, Richard Brandenstein, would also like to remind everyone to make sure that they have "underinsured" coverage on their personal automobile liability policies. "Underinsurance" protects you and your family in the event you are injured in a motor vehicle accident and the person who caused your injuries has insufficient insurance coverage to
pay for all of your damages. If that occurs and you have "underinsurance" coverage you can seek additional monies from your own insurance company. Such coverage is particularly important for police officers because the chance that you will be involved in a motor vehicle accident is much greater than the general public. It is not very expensive and everyone should make certain they have it. Insurance companies do not generally encourage you to purchase such coverage. What does that fact tell you?

In addition, you can also now purchase "spousal coverage" on your auto liability policies. If you do not have such coverage and you are involved in a motor vehicle accident and your spouse is injured he or she can not sue you and collect from your insurance. You must purchase "spousal coverage". Again, it is relatively inexpensive and insurance companies don't particularly want to offer it to you.

If you are involved in a motor vehicle accident and need to use either of these coverages, you will thank us for having tipped you off. It's too late once the accident occurs. Protect yourselves and your families by having proper coverage.

Please feel free to contact us in the event of any questions regarding disability retirement, Workers' Compensation, Social Security Disability, Medical Review/207-c or any other line of duty injury matter. We have been the official PBA special counsel for disability matters since 1988. You can call us at 516.496.0400, X 4413 or email to mrada@fbrlaw.com.