May 2016 Legal Report

Legal Report

By Milan Rada, Esq. with John Hewson, Esq.

Every case comes with its own hurdles, and even with the best set of facts, one of those hurdles can very easily destroy any chance of receiving a benefit to which an injured officer would otherwise be entitled. Our goal is to educate members of the Department in order to avoid
loss of a disability pension because of failure to follow rules. Overcoming those hurdles and beating the Retirement System is quite often where we do our best and most gratifying work. Over the past several months we have written many Legal Report articles discussing the most common mistakes that are made by members before they even step into our office to discuss their potential claims. Recently, we had a case where one of those mistakes looked to possibly ruin an otherwise perfectly viable 3/4 (Accidental Disability) claim. In fact, we had several consultations with this officer wherein we discussed the possibility that a disability pension claim would not be awarded simply because the member had performed far too much overtime than permitted while on restricted assignment.

For purposes of a brief review, if an officer performs more than 100 hours of overtime in any 12 month period of time while assigned to restricted assignment and that officer then submits an application for disability retirement benefits, that officer will now have to prove he or she is incapable of performing the light or restricted duties he/she has been performing, as opposed to proving that he/she can no longer perform the full duties of the job. Clearly, it is far more difficult to prove permanent disability against the light duty standard. For this main reason, we stress the importance of minimizing the amount of overtime performed while on restricted assignment in order to avoid this nearly insurmountable hurdle later in the claim. And, unfortunately, the Retirement System still takes the position that overtime is overtime, so there is no difference between compelled or built-in overtime versus voluntary overtime. Therefore, it all counts.

In the situation we recently dealt with, the case was clearly going to be decided against the light duty standard, which tends to be a very difficult standard to overcome. But we were successful! As a result of the difficult situation presented, we were forced to develop the case in an entirely different manner with a greater emphasis on the ability to perform desk assignments rather than the commonly known full job duties of a police officer. Thankfully, the client’s doctors were able to stress the severity of the disability and explain the restrictions in such a way that the Retirement System agreed.

We absolutely would not advise doing this but as you can see, hurdles are not impossible to overcome. Far too often, we encounter clients that when told of the potential risks and hurdles in the case they immediately become conditioned to believe there is no shot at winning. Even worse, they may decide to retain an attorney who is not the PBA’s designated, official disability attorney, and who may not have the extensive experience and excellent track record of the PBA’s disability counsel. Such members may discover the case is not as easy as the other attorney made it out to be despite payment of a significant retainer. We, however, are on retainer with the PBA and provide our services to members at a fee so attractive that one of our former police clients described it as “the best buy in America.” We strive to present all the potential risks to our clients because we would not be doing our job properly if we swept those issues under the rug. We have ways of developing cases to address different hurdles, but minimizing potential hurdles in a claim to our clients is not in our clients’ best interests. We prefer to work with an “educated consumer.”

This is the perfect spot to transition to the next point that needs to be stressed – documentation is absolutely key to disability claims – Workers’ Compensation claims, Social Security claims, Personal Injury claims and Veterans’ disability claims, in addition to NYS Disability Pension claims. We see clients from many different departments in the tri-state area, and the importance of documentation is universal. Thankfully, we can see from the drafting of accident reports and the care with which they are usually, but not always, prepared that our message continues to resonate within the Nassau County Police Department. The PBA leadership and delegates have done a fantastic job of helping their fellow members when they are injured and protecting them in the best ways possible. We can comment on this with no hesitation because when we review the accident descriptions from officers in other jurisdictions, all too frequently the reports are not done with the same care as the ones completed by members of the NCPD. We take great pride in knowing that the hard working members of the Nassau County Police Department continue to be among the most knowledgeable clients that our office deals with on a regular basis. Properly drafting injury reports is crucial to these claims, so if there is any question with how to draft an accident report, in order to make sure that all the relevant issues are presented, please do not hesitate to contact your delegate or our office as soon as possible after the injury. You must be alert to the requirement that the job requires you to report an injury within seven (7) days in order to protect your I- number (line of duty) status.

The importance of documenting your injuries could not be more important given the current climate at the Department regarding injuries. We are seeing more injuries that are either questioned or denied line of duty status even to members who have legitimate line of duty injuries. Many of these disputes arise simply because the paperwork was either done too late, carelessly or submitted missing relevant information. Please keep in mind that our constant advice in the case of an injury is to document it as soon as possible after the injury occurs. In addition, we also believe that a full injury packet should be done within the seven (7) days mentioned above in order to avoid the problems that undoubtedly will occur when “non-recordables” are completed. We stress again that the Departmental Manual requires an injury to be reported within seven (7) days of occurrence, and even if believed to be minor, we want every officer to be best protected should that injury become career-threatening down the line.

Please keep in mind that we are here to answer each and every question that you may have regarding these issues or any other disability related issues that might come up. We are privileged to represent you, your families, and your friends in every way possible, and we do not stop fighting for our clients and the benefits to which they are entitled. If you have any questions or become injured, please never hesitate to contact us at 516-941-4403 or by email at

Our Police Disability History

In 1988, the newly elected president of the PBA, Gary DelaRaba, brought a brilliant and innovative concept to lawyering for police unions. DelaRaba decided that he would hire expert law firms that concentrated their practice in a particular specialty, rather than have one firm to handle all the union’s business. After conducting an extensive vetting process, DelaRaba selected the firm of Fusco, Brandenstein and Rada, P.C.  The selection of Fusco, Brandenstein & Rada, P.C. was based on numerous interviews with the partners of the firm, the general reputation of the firm and the firm’s established superior track record in the disability fields in which it practices.

After the firm was retained by the Nassau County PBA, tremendous successes were achieved, not only in the areas of Workers’ Compensation, Social Security and personal injury claims, but particularly in claims for accidental disability retirement cases (commonly referred to as “3/4’s”), an area in which Nassau County Police Officers had not been faring well until Fusco, Brandenstein & Rada, P.C. became involved. In fact, the law firm became so successful in police disability claims, that Newsday ran a series of Pulitzer Prize winning articles regarding police officers and their disability benefits entitled “Cops on Disability.”
In this series, Newsday proclaimed that “The firm’s hiring [by the Nassau County PBA] has paid off – its disability clients have a 75 percent approval rate in Albany.”

The firms’ approval rate continues to be very, very high due to aggressive, well-presented, careful, thorough and complete legal representation. Former Nassau County Police Commissioner Donald Kane was quoted by Newsday as describing Fusco, Brandenstein & Rada, P.C., as “much more sophisticated in their abilities.” Newsday proclaimed Milan Rada, Esq. to be a “leading police-disability lawyer on Long Island.” And, according to state officials cited by Newsday, “The sophistication of [this] lawyer, state officials say, gives Long Island police an edge over those from areas with smaller police forces, where lawyers who specialize in police pension law often don’t exist.”

The legal expertise of Fusco, Brandenstein & Rada, P.C., as touted by Newsday is available to any injured and disabled worker. The same high level of legal representation enjoyed by police officer members of the Nassau County PBA is available to any applicant for Workers’ Compensation, Social Security Disability, Municipal Law Section 207-c disputes, Line of duty determinations and personal injury lawsuits. The firm takes great pride in our legal work on behalf of the Nassau County Police Benevolent Association and the many other unions who have chosen it to represent their members.  We take equally great pride in each individual client we represent, whether a PBA member or not. All you have to do is call us, make an appointment and retain us. We will take care of the rest. You will find that it is a  major advantage to have one law firm to represent you in ALL your disability claims. The representation is seamless and issues that cross all the areas can be handled much more efficiently. Let us know if we can help. Here’s more of what Newsday had to say:

The Lawyers
“Injured on or off the job? We’ll protect your rights. We’ll help you get all the monetary and health care benefits you deserve.”

“…..The firm’s hiring has paid off – its disability clients have a 75 percent approval rate in Albany.”

“….They are the driving force behind a dramatic increase in awards of the lucrative pensions, with the retirement system staff no match for their preparedness and legal expertise. “

“…..Milan Rada, is a former attorney for the Social Security system. The sophistication of these lawyers, state officials say, gives Long Island police an edge over those from areas with smaller police forces, where lawyers who specialize in police pension law often don’t exist. “

“The lawyers advise police applicants at every step along the process toward getting disabiility retirement. First, they review their cases to see if they meet the technical legal requirement for disability retirement. Then they look to see if the cops have undergone sufficient diagnostic testing to prove they are disabled and have statements of disability from their doctors.”

“It is essential that we keep close ties to the health care community, so that we can refer our clients to qualified doctors, chiropractors and health care professionals on request.”

“In 1976, four Nassau police officers got accidental disabilities….In 1986, the number was about 92, some phenomenal number.”

“DelaRaba argues that the screening of applications by Rada’s firm amounts to a weeding-out of potentially phony disability claims”