January 2017 Legal Report


Legal Report by Milan Rada Esq., with John Hewson, Esq. There are several recurrent themes that we see over and over again when we do appointments with members.  Thankfully, most of these issues are easily dealt with. The troubling part is that several are so important that they continuously warrant discussion and need to be stressed because the failure to understand these important issues can be the difference between a claim that goes very smoothly and a claim that is constantly bombarded with obstacles.

For starters, with so many new and young members on the force, we must discuss what you need to do when you get injured on the job.  Every claim begins with an event that causes an injury to a member.  In many cases, these initial moments are the most important on the case, and they can be the difference between a claim that is properly documented and protected, and one that has a fatal flaw that cannot be repaired.  When a member gets injured on the job, the proper documentation and reporting of the injury are crucial.  Under the Department Manual, a member who is injured in the line of duty has seven (7) days to report the injury to the Department.  This step is crucial.   Countless times members have told us that they were told they needed to submit an accident report (aided packet) immediately or as soon as possible, otherwise it will not be accepted.  This is not correct.  The seven (7) day reporting rule exists to protect both the member and the Department.  The Department will not be prejudiced by a member waiting one week to report an injury because in most cases, the Department already has verbal reporting of the injury to a supervisor, and in instances where the member is so badly injured that he cannot work he will have already reported the injury to the Police Surgeon, if physically possible.  This rule should be utilized by the member to protect himself and make sure that he or she has ample time to produce a fully complete and fact-specific report documenting the injury.  Proper documentation of an injury matter when it comes to the New York State Police and Fire Retirement System, and a lazy or inaccurate description of an event can be the difference between a 3/4 or accidental disability pension and one that results in only 50% or a performance of duty disability pension.

We have seen too many injuries go unreported or not properly documented over the years.  If you have read this Legal Report in the past, you have also seen that we are not necessarily fans of “non-recordables”.  Though we certainly understand their value from a certain point of view, we have also seen many times over the years where members start a claim with a non-recordable but the injury turns out to be much worse than they initially thought.  When they filed the “non-recordable”, they failed to take the time to properly document all of the specific set of circumstances that caused the injury, particularly giving short shrift to the description of how the injury occurred and then, when the Retirement System evaluates the initial injury report, the Retirement System sees no distinction between a “non-recordable” and a full injury packet. The “non-recordable” is a shortcut, a time saver, which typically does not command the attention to detail as does a full aided packet. Therefore, that initial report, the non-recordable, will be the first description of the injury and the one that the Retirement System typically will use when making its determination as to whether or not the injury was the result of an “accident,” as this term is defined in the Retirement and Social Security Law.

These initial reports can either make or break a claim that may not be filed until years later. Attention to detail is a must. Thus, we also advise our clients to tell their delegates and trustees about their injuries as soon as possible.  Not only are the PBA delegates incredibly knowledgeable about how to handle this process, but they also will contact our office if there are any issues that need clarification.  So, if there is any discrepancy or question as to how to draft a report or describe the accident, we can assist in making sure the report is thorough and accurate, even if the injury first appears to be relatively minor and not expected to have any negative impact on the officer’s career.

The reporting process is not only important to the Department itself, but it is also required for both the Workers’ Compensation claim as well as for the Retirement System. Under the Workers’ Compensation Law, an injured worker has two years to file a claim with the Board itself but must report the accident to his or her employer within 30 days of the occurrence.  If the injury is not reported, the employer can essentially controvert the claim on the basis that it was not timely reported, thus costing the injured worker the medical coverage that he or she is entitled to for the injury as well as the monetary benefits that he or she might be entitled to while out of work.  In the case of an extremity body part such as a knee or shoulder injury, that can also mean missing out on a schedule loss of use settlement that might be worth thousands of dollars.  In addition, under the Retirement and Social Security Law, a member must report the injury to the Comptroller’s office as well in order to be protected under the disability statutes.  For those who have had injuries in the past, you are likely thinking that you have never filed an accident report with the Comptroller before.  You would be absolutely correct.  The reason is that a properly and timely filed accident claim with the Workers’ Compensation Board satisfies the filing requirements of the Comptroller and a timely filed accident report with the Police Department satisfies the 30-day notice requirement of the Workers’ Compensation Law. It is a domino effect: file your full aided packet (or “un-recordable” if you absolutely must) with the Department within the required seven (7) days and you have protected the filing requirements for Workers’ Compensation and disability retirement pensions.

Please keep these documentation requirements in mind the next time you suffer or hear about another member suffering an injury on the job.  Our goal is to make sure these concerns and problems are eradicated so each member is fully protected both with the Department and any other claims that might arise because of the line of duty injury.

We wish you, your families and friends a very safe, happy and prosperous New Year. Keep in mind that every consultation with our office is at no charge and we are always happy to serve the members, their families, and friends in whatever way we can.  If you have any questions about these matters or any other disability or injury related issues, please feel free to call our office at 516-941-4403, or e-mail us at mrada@fbrlaw.com.

January 2017 Legal Report


Legal Report by Milan Rada, Esq. with John Hewson, Esq. At the start of the New Year, we feel it is beneficial to stress the importance of certain fundamental requirements as they relate to line of duty injuries: 1) Per the Department Manual, you MUST report your injury to the Department within seven (7) days of the injury, even if you consider it to be a minor event of no significance. Even if the injury truly appears to be a minor one, at the very least complete a “non-recordable” report of your injury, again within seven (7) days of the injury. The “non-recordable” report will suffice as proper and timely notice of your accident to the Police Department. 2) Make sure your PBA delegate and/or trustee is fully aware of your accident as soon as possible. 3) If you are out sick for three (3) or more days, you must present a Physician’s note to the Department documenting your illness or injury. Be aware that to the Department a “physician” is a medical doctor, an M.D., and unfortunately, not a chiropractor, not a podiatrist, not a physician’s assistant and not a nurse practitioner.

Thursday, November 17, 2016, was not a good day for four (4) applicants who appealed denials of their disability applications to the Appellate Division, Third Department. All four (4) applicants lost: two (2) police officers, one (1) firefighter and (1) correction officer were all denied their applications for a tax-free accidental disability retirement benefit (3/4).

In the first case, Matter of Rosenbergen v. DiNapoli, Police Officer Rosenbergen filed an application for accidental disability retirement benefits (3/4) on the basis of injuries she sustained in a slip and fall on December 12, 2010. After she walking out of a residence towards her police vehicle,  to which she had responded to a domestic aided call, she fell on the street.

The circumstances surrounding her fall were: it was 2:30 a.m. and the roads were icy and “treacherous;” she observed freezing rain and saw that the roads were “icing up” and were “very bad;” and, at the home, she responded to, the driveway was icy. When she left the house, about an hour later, it was no longer raining. She walked to the bottom of the driveway where she fell on unseen ice.

The Court held that this was not an accident within the meaning of RSSL Sec. 363 because it happened “while she was performing the routine duties of her employment and that the precipitating event, the condition of the road in subfreezing conditions, could have reasonably been anticipated” (emphasis added).

In describing the definition of an “accident” for ¾ purposes, the Court said it must be “a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact.” Further, the Court noted that “to be deemed accidental, any injury must not have been the result of activities undertaken in the ordinary course of one’s job duties but, rather, must be due to a precipitating accidental event which is not a risk of the work performed,” noting that “injuries incurred due to conditions that are readily observable and could be reasonably anticipated, or attributable to an employee’s own misstep or inattention, do not constitute accidents.”

In the second of the police cases denied by the Appellate Division on November 17, 2016, Matter of Buono v. DiNapoli, police officer Buono was injured when, while placing a handcuffed suspect into the rear seat of the RMP, the suspect pulled away causing Officer Buono to be pulled toward the vehicle. The cop was injured when he hit his neck and right shoulder on the door jamb.

In finding that Officer Buono was not injured as the result of an “accidental” injury, the Court noted that Buono was performing a routine duty of his job when he responded to his fellow officer’s request for assistance in placing the suspect under arrest. According to the Court, “He [Buono] had a hold of the suspect and was in the process of guiding him into the back seat of the patrol vehicle, an activity that he had performed before and for which he had a specific protocol when the suspect pulled away.” Notably, the Court went on to write that, “considering that the suspect had violently resisted arrest and was clearly agitated, it could be reasonably expected that he would not be cooperative in getting into the vehicle. The Court concluded that Buono’s injury arose from an inherent risk of his job.

In finding that the cause of Buono’s injuries was not an “accident,” the Court’s reasoning was as follows: an “accident” is “a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact; in order to be deemed accidental, an injury must not have been the result of activities undertaken in the ordinary course of one’s job duties but, rather, must be due to a precipitating accidental event which is not a risk of the work performed.”

The third of the four denials of November 17, 2016, involved a firefighter, Timothy Powers, who was injured in March 2012, when while moving heavy firefighting equipment he tripped and fell causing injuries to his head and back. Essentially, Firefighter Powers was transferring heavy equipment from a disabled fire truck on to a reserve truck, when he slipped over a one-foot long crack in the pavement that was broken into one to one-half inch fragments that he had not seen before he fell.

According to the Court, “. . . under the circumstances presented here, the incident occurred during [the firefighter’s] performance of routine and regular duties as a firefighter, which he had performed numerous times, and the hazard encountered by [the firefighter] was readily observable and one that could have been reasonably anticipated.” The Court concluded that Powers’ “fall resulted from his own inattention and misstep and that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law.” [NOTE: (1) Our law firm did NOT represent any of the applicants for disability whose cases are discussed in this Legal Report. (2) Firefighters must meet the same definition of “accident” as police officers].

The last of the four denials of November 17, 2016, involved a correction officer. Since the standard for a ¾ disability for a correction officer is different from a police officer, there is no need for any discussion of this case, except to point out that correction officers also have a very tough time when appealing to the Appellate Division, Third Department.

If there are any questions, comments or criticisms about this or any past Legal Report, please contact Milan Rada, Esq. at 516-941-4403 or by email at mrada@fbrlaw.com. Fusco, Brandenstein & Rada, P.C., has been the PBA’s officially designated disability counsel since 1988, representing injured police officers, their families, and friends, in matters of Disability Retirement Benefits, Social Security Disability Insurance Benefits, Workers’ Compensation Benefits, Medical Review, GML Sect. 207-c Benefits and Personal Injury lawsuits. We, of course, welcome referrals of your family, friends, and neighbors.

On behalf of the entire staff of Fusco, Brandenstein & Rada, P.C., we extend our sincerest wishes to all our readers for a very Happy New Year, filled with love, peace, happiness, good health and prosperity. Be safe.