Legal Report

Most importantly a crucial deadline is upon you. If you have not yet filed your notice form (not an application) with the Workers' Compensation Board and/or the New York State Retirement System you have only until September 11, 2010 to do so. Your notice form must be received by the Workers' Compensation Board and the Retirement System by that date, no later. Do not take any chances. Even if you are not ill now, but served during the rescue, recovery or clean up at the World Trade Center attack site, which includes areas besides and beyond ground zero, you should file a notice form with each agency, the Workers' Compensation Board and the Retirement System. By timely filing the notice form, you are protecting your right to file for benefits related to your 9-11 service, should you become sick and disabled in the future. For those of you who served during 9-11 but have since retired, you should file a notice form with each agency also because you may be entitled to a "reclassification" of your service retirement to a ¾ WTC Presumption Accidental disability retirement and Workers' Compensation benefits if you file the proper notice forms before the deadline. Please be sure to give these matters your immediate attention because the deadline means the deadline. Also, if you are retired on a performance of duty pension (50%) and served during the rescue, recovery or clean up following the 9-11 attacks, you may also be eligible for a "reclassification" of your pension, should you qualify for benefits at some time in the future. But you must file the notice forms timely, even if you are feeling fine now. If you are already receiving a ¾ disability pension, say for a back injury, you cannot qualify for a re-classification to a WTC Accidental disability presumption benefit.

The beginning of the summer was not particularly kind to applicants for a ¾ disability pension. I hope you had a great summer nevertheless. A deputy police chief for the City of Newburgh Police Department filed applications for ½ and ¾ disability pensions. The filings were based on two injuries Ð an injury in March 2000 in which he fell on stairs as he was carrying two five-gallon water jugs and an injury in January 2002 in which he injured his shoulder when a box of files he lifted broke. He requested a hearing and re-determination on both denials, but the Retirement System administratively rescinded the performance of duty denial and awarded those benefits. The deputy chief proceeded with the appeal on the question of whether his injuries were accidents.

The court noted that "Within the meaning of the Retirement and Social Security Law, an accident is 'a sudden, fortuitous mischance' while the Court of Appeals has 'indicated that an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury.'" In setting forth its rationale, the Appellate Division Court noted that "with respect to the March 2000 incident, the record contains substantial evidence from which the Comptroller could find that [the Police Chief] was familiar with the condition of the stairs on which he fell and that the incident was the result of a misstep by [the Police Chief] rather than an unexpected event or defective condition." Apparently, the Chief's testimony at the hearing differed from the written documentation concerning the condition of the stairs and the cause of the Chief's fall. The Court dealt with this by stating that this "presented a credibility issue for the Hearing Officer to resolve." Not surprisingly, this credibility issue was resolved against the Police Chief by the Retirement System.

With respect to the January 2002 injury, in the opinion of the Court, the record "also contains substantial evidence from which the Comptroller could determine that the January 2002 incident was not an accident because [the Chief's] injury occurred during the course of his employment and resulted from a risk inherent in the work that he was voluntarily performing." Apparently the Court felt, as did the Retirement System, that when you lift a box of files, there is a chance of that box breaking apart and causing you injury. Reasoning along this line has significantly narrowed the kind of injuries that will be considered accidents and has caused many ¾ cases to fail and result in ½ performance of duty awards instead.

Nevertheless, the Court pointed out that if the Retirement System had found the breaking box causing injury to be an accident, such a finding would not be unreasonable. Despite this, the Court cited the law that "the Comptroller is vested with exclusive authority to determine applications for accidental disability retirement [and performance of duty disability retirement benefits] and we perceive no basis upon which to disturb the determination at issue here." So, even if the Comptroller would have taken the reasonable position that an "accident" had occurred, this determination will not be disturbed by the Appellate Division Court if the Comptroller denies there has been an "accident" and there is substantial evidence supporting the determination.

The Retirement System, with the full and enthusiastic support of the Appellate Division, has been continuously narrowing the definition of what constitutes an "accident," thereby making it ever harder to obtain a ¾ disability benefit.

Leaving the "accident" arena, I have frequently been asked whether Social Security disability insurance benefits are payable in addition to accidental disability benefits. The answer is yes. In fact, Social Security disability benefits are payable in addition to performance of duty disability benefits as well as service retirement benefits, assuming the requirements are met. However, please note that just because a cop has been awarded accidental disability benefits or performance of duty disability benefits, this does not mean the cop is "automatically" entitled to Social Security disability insurance benefits. The definition of disability is very different for Social Security disability benefits. In order to qualify for Social Security disability benefits the claimant must show that he is unable to engage in any substantial gainful activity (SGA) [work activity] because of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

The Social Security benefit is roughly $2,500 per month for the disabled worker, with cash benefits also available for children of the disabled worker who are under the age of 16, or up to 18 if the kid is still in high school. Additionally, the disabled worker is also entitled to Medicare health benefits after being found disabled and entitled to Social Security disability benefits. Please note that the Empire Medical Plan, as well as most other health insurance plans, requires the disabled worker to opt into Medicare. If you have any questions concerning the disability matters handled by the PBA's endorsed disability counsel, please do not hesitate to contact us at 516.496.0400 ext. 4413. There is no consultation fee for any of the disability matters we handle on behalf of the PBA and we are happy to answer your questions and discuss options which may be available to you.