Legal Report

The nature and duties of police work permit Police Surgeons to closely monitor a cop’s medical status to a far greater degree then would be necessary in most other occupations or professions. The Police Surgeons examine members of the Force or Department who report sick, or are injured on or off duty, or request restricted assignment, or report a recurrence of an injury, or request maternity leave, or are returning to work from sick leave, or have been reported to be unfit for duty, or may have to surrender their firearm. Also, the Police Surgeons collect and create medical information in connection with a cop’s claim for Workers’ Compensation, Medical Review or Sec. 207-c matters. The amount of medical information collected and created by the Police Surgeons is very large.

Recently private and confidential medical information concerning a cop was allegedly released. The release of private medical information may be in violation of federal and state law. The PBA wants you to be aware of your absolute right to the privacy of your medical information, in the hopes that such awareness will cause the Police Department to zealously safeguard the confidentiality of all medical information and make sure that release of private medical information does not occur.

Federal and state law imposes very strict limitations on the use of medical information obtained by the Police Surgeons. All information obtained as the result of medical examinations, or obtained from other medical sources, must be maintained in files separate from personnel records and must be treated as a confidential medical record. The Police Department is required to take steps to guarantee the security of the cop’s medical information. A cop’s medical information should be kept in a separate, locked cabinet, completely apart from personnel files. A specific person(s) should be designated to have access to the medical file and all medical-related information MUST be kept confidential. An exception to this is the recognition that supervising officers will have to be notified about any work restrictions or accommodations, such as a cop being placed on restricted duty. However, the medical basis for any restrictions is something that can and should be kept confidential.

Violation of laws requiring that medical records be kept confidential can result in compensatory and punitive damages being assessed. The injured party can assert claims for emotional pain and suffering, emotional distress, inconvenience, mental anguish and loss of enjoyment of life. Additionally, fines and even criminal penalties can be assessed against the employer for violating medical privacy rules.

The PBA wants to make sure that the privacy of all medical records is properly safeguarded, as required by law. If you think there has been a violation, please let the PBA know.

In this legal column I often discuss issues pertaining to accidental or performance of duty disability retirement claims. However, every accidental or performance of duty disability retirement case starts out as a Workers’ Compensation claim. In the next few legal reports I will be discussing and reviewing some of the basic and not so basic concepts in New York State Workers’ Compensation Law. My partner, Richard Brandenstein, Esq., contributed the following review of Workers’ Compensation claims. This will be a continuing series on the topic.

Under New York’s Workers’ Compensation Law, an employee is entitled to Workers’ Compensation benefits when he or she suffers an injury which arises out of and in the course of his/her employment, even if the injury is caused by the claimant’s own negligence or carelessness.

However certain conduct will prevent an injured worker from receiving Workers’ Compensation benefits: if the injury was caused by the willful intention of the claimant to cause injury or death to himself or another person; or if the injury is due to intoxication (from alcohol or controlled substances) of the claimant (Section 21 WCL).

If an injury is solely psychological in nature and the precipitating factor was a legitimate personnel decision by the employer, such injury is no longer considered to be compensable.

Who is covered?

In New York, it is mandatory for an employer to have Workers’ Compensation insurance for any trade, business or profession that employs one or more workers. All employees in New York, therefore, are covered under the New York State Workers’ Compensation system unless specifically excluded by law. Among the employees NOT covered by the law are:

• NYC uniformed police and firefighters;
• NYC uniformed sanitation workers;
• NYC teachers;
• Baby sitters and minors 14 years of age or older who engage in casual employment consisting of yard work and household chores in and about one (1) family owner-occupied residences;
• Domestic workers employed less than 40 hours per week by a single employer.

Please note that, since Nassau County Police Officers are not on the list of excluded job titles, you are all covered by the New York State Workers’ Compensation Law. Likewise, if any of your spouses, children or significant others are employed on either a part time or a full time basis, they too are probably covered under the same law which effects you.

You should also note that illegal aliens, “off the books” workers, nannies, au pairs, home health aides, etc. are not excluded from Workers’ Compensation coverage. That is significant because if you ever employ such workers on an even casual basis and they become injured, they can (and probably will) file a valid Workers’ Compensation claim against you. The moral to the story is to always have a Workers’ Compensation insurance policy in effect if you hire an employee to work at your home or in any side business in which you may be engaged. Your homeowners or other liability policies do not cover you for Workers’ Compensation claims that may be made against you.

Statute of limitations

Just as in any other claim or lawsuit, Workers’ Compensation claims have strict filing requirements.

Section 28 of the NY Workers’ Compensation Law provides that a claimant must file a claim (Form C-3) with the Workers’ Compensation Board within two years of the date of injury in order to protect his or her rights under the Workers’ Compensation Law. However, this Statute of Limitations (SOL) is “tolled” (waived) if the employer has made an advance payment of compensation to the claimant, such as paying the claimant’s lost wages or paying for medical treatment with full knowledge that these payments are for a work related injury.

The employer or insurance carrier waives the defense of the Statute of Limitations unless they raise an objection to the failure to file the claim within two years at the first hearing at which all parties in interest are present.

In a slow starting occupational disease claim, the claimant is not barred from filling a Workers’ Compensation claim beyond the two year Statute of Limitations provided the claim is filed within two years from the date of disablement and after he/she knew or reasonably should have known that the condition was due to the nature of employment.

To file an occupational loss of hearing claim beyond the two year Statute of Limitations, a claimant just file within 90 days after he or she has knowledge that the loss of hearing was due to the nature of employment. (Section 49bb)

Notice

Section 18 of the NYS Workers’ Compensation Law provides that formal notice of a work related injury must be given to the employer within 30 days after the accident or injury. The statute further provides that the notice must be in writing, signed by the employee or a person on the employee’s behalf, and personally delivered (or mailed by registered letter) to the employer’s last known place of business.

Although the statute provides for written notice, failure to give such written notice may be excused by the Board: (1) if the notice could not have been given (i.e. claimant hospitalized and in a coma), (2) if the employer or the immediate supervisor of the employee had actual knowledge of the accident or injury, or, (3) it can be shown that the employer was in no way prejudiced by the claimant’s failure to give written notice.

The employer or carrier must raise the issue of “lack of notice” at the first hearing at which all the interested parties are present or the right to raise the issue is waived.

Key Concepts & Definitions

To establish a Workers’ Compensation case the claimant must demonstrate that he or she has sustained either an accident or occupational disease in the course of employment.

The term accident for purposes of Workers’ compensation has the usual every day common sense connotation. Essentially it is an unexpected, untoward event causing an injury.

An occupational disease is not simply a disease a person caught while working. If you catch a cold while working that is considered a risk common to any and all jobs as well as every day life. It is not a Workers’ Compensation case. However, a disease that is characteristic of an occupation and peculiar to it is an occupational disease. Some examples, are: compressed air disease in sandhogs, Raynaud’s disease in butchers, and bakers’ asthma in bakers.

A hybrid classification is the repetitive strain type injury. These may be occupational diseases in some case, but generally they are considered to be repetitive trauma. The most classic of these is “carpal tunnel syndrome,” caused by excessive, stressful use of the wrists. It is most typical in typists and computer operators, and cases have classified this to be an occupational disease, but in reality it is nothing more than repetitive trauma. Similarly would be the case of a repetitive exposure. On this theory the courts held that a person who was exposed to cigarette smoke daily and developed a lung condition, did suffer a repetitive exposure injury (cumulative trauma). The court held that this was not an occupational disease, but was nevertheless compensable as a repetitive trauma and thus was classified as an accidental injury for purposes of Workers’ Compensation.

Benefits

There are two principal benefits under Workers’ Compensation, wage loss and medical.

Wage Loss

A disabled claimant can receive up to two thirds of his Average Weekly Wage up to a maximum of $400 weekly while considered totally disabled. Even partially disabled claimants can receive up to $400.00 per week depending upon their Average Weekly Wage.

Certain injuries can result in lifetime weekly benefits to the injured worker in addition to other disability benefits. The most common injuries which can result in lifetime weekly payments generally involve the neck, back, heart attacks, strokes and mental disorders. The benefits are payable provided the disability results in a loss of income. Often times, such chronic conditions play a role in the decision to leave the work force and apply for other pensions to which the worker may be entitled. Other types of injuries can result in lump sum type awards even if the injured worker never lost a day from work. Such injuries generally involve the extremities: arms, legs, fingers or toes.

Medical Care

The Workers’ Compensation Law mandates lifetime reasonable and necessary medical care for those sites of injury sustained in the work related incident. As you can imagine, there are many issues that relate to medical care. In future legal reports, we will review some of the more common issues that arise while an injured worker is navigating through the Workers’ Compensation medical system.

So far, I hope you have learned that Nassau County Police Officers are covered under the New York State Workers’ Compensation system. As such, you are required to notify your employer within 30 days after the accident or injury. A formal C-3 accident report form must be filed with the Workers’ Compensation Board within two (2) years of the date of accident. It is the injured worker’s responsibility to file the claim and not the employers. Once a claim has been properly filed, you will be entitled to lifetime medical care for that particular injury. Depending upon the nature of your injury and its severity, you may be entitled to monetary benefits.

The foregoing are the basic requirements to file a New York State Workers’ Compensation claim. Of course, there are additional reporting requirements imposed by the Police Department, such as the requirement that a line of duty injury be reported within seven (7) days. You must also comply with those requirements to safeguard your benefits under General Municipal Law §207-c.

After we have gone over the basic Workers’ Compensation concepts, there may well be a test. The test occurs if you sustain an injury on the job. At that time, whether you properly report and document the claim will determine whether you get all the benefits to which you are entitled. We urge every PBA member to contact our office after an accident so that we can discuss your specific situation with you and make certain that you are protected.

It is your responsibility to protect your rights. A common scenario we have seen recently is when an officer is involved in an accident and gets checked out in the emergency room. If he or she fails to report and file a claim timely, an emergency room bill may surface after it’s too late to file a claim and become the personal responsibility of the officer. That problem would not exist if the accident was reported and a proper claim filed. Completion of a “non-recordable injury” form may not be sufficient. Unfortunately, in the instances just mentioned, the only damage was payment of an emergency room bill. Had the injury itself flared up after it’s too late to file a claim, the injured officer would be on his or her own.

If you have any questions regarding injuries, on or off the job, or filing for any disability benefits, please contact me at 516-496-0400, ext 4413 or mrada@fbrlaw.com.