March 2020 Legal Report
By: Milan Rada, Esq. with John Hewson, Esq.
The start and foundation for any viable disability claim is the initial event that causes an officer’s injury. It is at that exact moment that the structure of the case is formed including whether the case will be a potential accidental disability retirement (3/4) claim, or whether it ends up being something less. Regardless, that moment in time triggers a number of crucial decisions that will affect the rest of the claim in the days, months, and years that follow. A few helpful reminders are always good to keep in mind so that every member that reads this Legal Report will know what to do when they are injured in the line of duty.
Accident reports are something that we have written about on countless occasions. They are the start, and sometimes the finish, of any claim for benefits. Obviously, our hope is that every officer incurs only minor injuries in his or her career, but the unfortunate reality is that potentially career and life altering injuries lurk throughout an officer’s entire day. Everything you have worked for and planned for could be changed in an instant. However, an officer cannot be at his or her best if worrying about these things constantly, so knowing what to do when injured needs to become second nature. We have seen it over and over again: an officer comes into our office after suffering an injury having not contemplated what happens when injured in the line of duty and now feeling great fear and anxiety, which can be overwhelming. However, the one thing that should not be causing anxiety is how the documentation was completed.
Departmental rules indicate that if injured on the job, an officer must report the injury within seven (7) days to the Department. That is the starting point for any claim; the first report of injury. This first report is crucial to the case. If a member is injured in the line of duty and begins missing time from work, the Department should be covering that member’s salary and medical costs under General Municipal Law (GML) section 207-c. By filing a report beyond seven (7) days, the member is risking that his or her GML Section 207-c claim will be denied by the Department, and if unable to work because of the injury, the member will be burning his or her own accruals while out or receiving Workers’ Compensation benefits only. It may seem harsh, but the longer it takes for a report to be filed, the less accurate is the information and the crispness of the memory of all the factors involved in the injury. The same can be said about the merits of taking a witness statement as close in time to an event for the same reason that an officer’s contemporaneous report is generally regarded as more credible than a later statement and is preferred. Do not risk these valuable benefits by prolonging the inevitable. File the report as timely as possible. In addition, we have always suggested that any member informs his or her PBA delegate and trustee of their injury so that they can be properly advised the entire way.
Accuracy is far more important than expediency and speed when it comes to accident reports. The seven (7)-day rule exists because this time period has been accepted as reasonable to complete as quickly and accurately a report under most, if not nearly all, circumstances. An officer should not rush to provide a report to the Department unless it is specific enough to outline all the pertinent facts as well as accurately depict how the officer was injured. Generally, vague and nonspecific language is enough to satisfy the Department’s requirements, but it can be horribly deficient for proving an “accident” for the purposes of a ¾ accidental disability retirement case. We also understand that sometimes the Department will want things as fast as possible, but the best advice is to take some time to write a clear, specific, and detailed description of the accident so that you protect yourself in case the injury develops into a career ending one at a later point.
With accident descriptions, we have written many times about being as descriptive as possible, especially in instances where the officer is injured when attacked by a suspect or perpetrator. Injuries that occur while effecting an arrest are not considered “accidents” for the purpose of qualifying for a ¾ accidental disability retirement. Thus, if an officer is attacked while arresting someone, but the description indicates something as vague as “Officer Jones injured his neck and back while arresting Mr. Smith” then Officer Jones would likely be left with only a Performance of Duty or 50% Disability Pension if his neck and back injuries are career ending. No one wants to see that happen to another officer. In a situation such as this, Officer Jones should only sign an incident report when he is fully satisfied that the entire attack is detailed so he is protected for the future. Therefore, if the report indicates that “while on duty, Officer Jones was punched, elbowed, and tackled to the ground violently by Mr. Smith causing injury to his neck and back” then any career ending injuries suffered by Officer Jones should be considered to be the result of an “accident” and eligible for a 3/4 Disability Pension. The main thing to keep in mind is that injuries that occur while performing routine or ordinary police functions will be “incidents” and not “accidents.” Therefore, any details that might be out of the ordinary, unexpected, unforeseen, not an inherent risk of the job, and not routine but peculiar should not be left out of any accident description. The failure to include these details in a report may be fatal to a ¾ Accidental Disability Pension claim.
In addition to accurately documenting injuries for the purposes of protecting yourself in the future for your pension, an accurate and timely accident report also meets the notice requirements under the law for several different benefits. The seven (7) day reporting requirement is a Departmental rule, not a legal one. However, by providing a timely accident statement to the Department, you are also meeting the notice requirement under the Workers’ Compensation Law. Under the Workers’ Compensation Law, any injured worker must provide notice of the injury to his or her employer within 30 days of the injury. This notice, however, does not constitute the filing of a Workers’ Compensation claim. With regard to the filing of a claim, under the Workers’ Compensation Law, any injured worker has two (2) years from the date of injury to file a claim for that injury with the Workers’ Compensation Board. Also, do not assume that the Department will file a claim on your behalf or properly file its own Workers’ Compensation documents. It is better to take control of your injury to protect yourself, if nothing more. There is also another benefit to filing a Workers’ Compensation claim timely. Under the Retirement and Social Security Law (RSSL) which controls both ¾ and ½ disability pensions, an injured officer must provide notice to the New York State Comptroller’s Office within 90 days of the injury’s occurrence detailing the injury causing event. By providing notice under the Workers’ Compensation Law, the Comptroller’s Office accepts that as proper notice under the RSSL as well.
An officer from another agency recently came to our office to discuss an injury he suffered en route to his headquarters after completing a training exercise in the morning. In the process, he was involved in what he thought was a relatively minor car accident. He was in his own personal vehicle during work hours and returning to headquarters from training so it clearly should have been within the scope of his employment. The officer chose to do nothing with the claim. He sought treatment weeks later for a shoulder injury using his private health insurance and he basically forgot about the injury. Now, several years later he is dealing with the possibility of a major shoulder surgery which his doctor feels is likely a result of the accident which accelerated the wear and tear on the shoulder joint. Because he failed to file anything with Workers’ Compensation or anything with his job, this officer has no route to getting 3/4 if he is permanently disabled after this surgery. He is far too late to file for Workers’ Compensation, which runs afoul of the Comptroller’s rule for timely filing with the Retirement System. Adding to this officer’s woes, any sick leave he’ll have to take while recuperating from surgery will be his own sick leave. This is always a terrible appointment to have with someone when what might have been a viable claim has no path to winning, and we have to be the bearers of bad news.
In the future we will discuss more as it relates to the medical documentation that is needed early on in claims as well as what is required from the Department with regard to your line of duty injuries. As always, if you have any questions or concerns, please reach out to our office at firstname.lastname@example.org or call at 516-941-4403. Until next month, stay safe and healthy.