June 2019 Legal Report
By: Milan Rada, Esq., with John Hewson, Esq.
We recently had the opportunity to be speakers at the Delegate Education Seminar held in April. From our perspective, the information provided by all of the speakers that day was extremely valuable. We hope that each of the delegates had the chance to learn something new and bring that back to the membership so that we can continue to protect the men and women of this job in the best possible way. We hope that the take away for each delegate is that we are always available to assist and be a resource whenever questions come up in the precincts or when you get calls from your members. In our position as the official PBA Workers’ Compensation and Disability attorneys, we seek to have the best-informed police officers who will know exactly what to do when an injury happens.
Of course, with limited time during a seminar, even with our best intentions, there are topics that we would have loved to be able to speak to for another hour or two, but the time constraints just would not allow. And, for those of you who were in attendance, we wanted to focus the majority of our time on the questions from the delegate body and the pressing concerns within the precincts as opposed to simply lecturing on Workers’ Compensation and disability law. Even so, there were unanswered questions that delegates brought to us after the presentations were over and by telephone since then.
One of the topics that we wished to go into more deeply, that was suggested by one of the delegates, was Workers’ Compensation settlements. There are several types of settlements in the world of Workers’ Compensation, but the one that comes up the most is that of Scheduled Loss of Use (SLU) settlements primarily for extremity body parts.
The Scheduled Loss of Use settlement typically involves injuries to the upper and lower extremities. If a member suffers a work-related injury to the knee, the claim can go in many different directions. You have seen us write in the past about how these claims can turn into Accidental Disability (3/4) disability pensions or 50% disability pensions. Those claims are with the Retirement System and turn on whether the member is permanently disabled from his or her job due to the line of duty injury. Past Legal Reports have dealt with line of duty injury claims, Medical Review and dealing with MAO when they direct a member to return to work on restricted assignment after suffering a line of duty injury. None of these topics really involves how the Workers’ Compensation settlement claim will operate. We have not explored Workers’ Compensation claims in detail, nevertheless most of you know that your comp claims are filed, the claims move forward and your medical bills are being paid. However, the vast majority of Workers’ Compensation injuries are temporary, and the member recovers and goes back to work. That is always our goal as well…to help make sure the member does everything possible to recover from an injury and return to full, unrestricted duty, if possible.
Once the member returns to work and is done with treatment very rarely will an injured body part go back to 100% function. The human body is an amazing machine, but we don’t regenerate body parts and ligaments and tendons so unfortunately, we are typically left with some residual dysfunction. In the Workers’ Compensation system, a member can be awarded a settlement based on that loss of use. This is the Scheduled Loss of Use (SLU) settlement. Thus, for the member above with the knee injury, the member might be back to work without restriction but one year or more post-surgery or post-injury, the treating doctor might indicate that the member is at maximum medical improvement (meaning no further medical treatment is necessary) with a 20% Permanent Loss of Use to the leg based on the knee injury. That 20% figure equates to a number of weeks of workers’ compensation indemnity payments under the law. That number of weeks is then multiplied by the total rate of compensation for the date of injury. After the Department is able to take credit for any wages paid under General Municipal Law Section 207-c, the remaining balance is awarded to the member as his or her settlement. Therefore, an injury to the knee with a 20% loss of use could be worth as much as $58,000 before any deductions for wages that were paid. This is why you should try to return to work at restricted duty as soon as possible after an extremity injury; doing so will permit you to keep more of the SLU awarded to you.
However, there are some other considerations that go into whether a settlement is worthwhile or not. If the injury truly is temporary in nature, then resolving the claim and continuing your career is always a solid option. But, we would not advocate stopping medical treatment unless you are actually at maximum medical improvement. This is especially true if there is still a pending disability pension claim or Social Security disability claim where the agency might still want to see up-to-date and ongoing treatment in order to show the severity of the injury. Please keep in mind that the Workers’ Compensation claim can always be re-visited for settlement purposes once the other claims are concluded.
Also, sometimes there are claims with an overlap of injuries such as a neck injury along with a shoulder injury. While we are capable of settling the claim for a percentage of loss of use on the shoulder injury, we can only do so if the claimant is not actively claiming disability or need for treatment on the neck claim. Therefore, if a member still needs ongoing care or treatment for the neck in order to support another claim, we would not be advising him/her to rush to settle their shoulder claim as it might compromise the value or validity of the on-going claim related to the neck. We had a situation recently where a client was looking to settle an extremity body part claim but still had an ongoing Social Security Disability Insurance claim with an upcoming hearing scheduled. The Social Security claim also included an impairment of the back. The back was the more significant impairment for establishing entitlement to Social Security Disability Insurance (SSDI) benefits. Stopping treatment for the lumbar spine impairment would cast a negative light on the proceedings in SSDI if the Social Security Administrative Law Judge in that claim was shrewd and knew the way Workers’ Compensation operates. As such, we made sure the member was aware of the issue and decided to simply go forward with the settlement once we received the SSDI award. The same can be true of a Continuing Disability Review with Social Security where they might ask someone already receiving SSDI if they are still unable to work. If there are no up-to-date medical records or some doctor’s statement indicating that no further treatment is necessary to a back or neck, then the agency would undoubtedly hold this against the individual being reviewed and terminate benefits.
There are other types of settlements in Workers’ Compensation as well, such as Section 32 settlements in addition to other permanency findings such as being labeled as PPD, permanently partially disabled. Much like the delegate seminar, we will leave this month’s discussion at this point, but we are always available to discuss these issues and any other questions at any time by phone, in person, or e-mail. Please feel free to contact us at 516-941-4403 or by e-mail at email@example.com. We wish each member the safest and most fun this summer.