April 2017 Legal Report

Legal Report by Milan Rada, Esq. with John Hewson, Esq. Working as a police officer is a dangerous and high-risk profession in which injuries are an unfortunate result of simply doing the job.  Further, we have seen over the years that very rarely does a police officer with years of service ever go to work pain-free.  Pain is an almost inherent part of the daily life of a police officer.  The problem arises when an officer with a pre-existing injury does something on the job that aggravates the underlying injury, or more often, does nothing at all strenuous or specific, yet a pre-existing condition flares up.  Considering the number of phone calls we receive with these exact fact patterns, it is extremely important to go over the do’s and don’ts when either of these situations occur.

The first situation is an easier one to address.  The simple rule of thumb is that if a new event occurs at work, it is a new injury and a new injury packet must be generated.  Thus, if an officer has a back injury from a car accident years ago, but he is still working full duty and then aggravates that back injury helping to lift a trundle on an aided call, a new injury packet should be generated because a new event occurred – lifting the trundle.  Of course, dozens of questions are raised by taking this course of action.  Of the greatest concern is, “Will this affect a potential Accidental Disability Pension (3/4) claim I might have in the future based on that car accident from years ago”?  The short answer is, yes.  Unfortunately, we cannot choose the order in which line of duty injuries occur because, if we could, the order would be in reverse with the car accident coming after the lifting trundle incident.  However, if the member does not file a new injury packet on the lifting event, not only does (s)he put that injury at risk of not being covered by Workers’ Comp and GML Sect. 207-c, but there is no guarantee that the injuries will be covered under the old case either. Thus, by not following the proper procedure, the member could be stuck with a denial of line of duty status despite a bonafide on-the-job injury.  Regardless, both events would be covered under GML Sect. 207-c, for line of duty pay and medical care, assuming the proper protocol for reporting the injuries has been followed.  Also, both events are covered by the Workers’ Compensation law. Accordingly, in the short term, the best course of action for any member in this situation is to file a new injury report, thereby protecting themselves fully, and then address future considerations as they arise.

The second situation is one that we also see on a regular basis, which often is very problematic and creates the greatest aggravation for both the member and our office.  In this scenario, the member does not have a new event but simply starts to again feel pain from a prior injury to the same body part. This recurrent pain can come about at work or at home or even on vacation, but in any event, the member did not do anything strenuous or specific to cause the return of pain, which may be the result of something as innocuous as simply as waking up feeling back pain from an old car accident, or having your knee buckle while walking up or down stairs because of an old on-the-job knee injury or even sneezing and aggravating a pre-existing back injury.  What should the member do in any one of these circumstances?

In any one of these situations, the best course of action is to get treatment and an opinion from your treating physician, as soon as possible, as to the cause of the recurring pain or injury.  If your treating physician indicates that within a reasonable degree of medical certainty the current episode of pain is causally related to the older on-the-job claim, then the member should be characterizing this pain as a “recurrence” of the prior injury. At this point it is imperative that the member give his/her doctor a very accurate history of the current complaint of pain: tell the doctor about the prior accident, which caused injury to the body part now causing pain; explain to the doctor that you have not had any intervening accidents or injuries to this body part; and, tell the doctor exactly what happened that brought on the pain, ie., “I sneezed and I felt pain (describe the severity to the doctor: mild, moderate, severe) in my back.” From a TREATMENT perspective, the Department is not likely to give the member a hard time because whether it is paid for under GML Sect. 207-c or under the still active Workers’ Compensation claim, the member is going to be covered.  Treatment will be paid directly from the Workers’ Compensation claim although the carrier might ask some initial questions and set some hurdles initially, but ultimately the treatment will most likely be covered.  The difficulty arises if the member is now going to lose time from work due to this “recurrence” of pain.

This situation has created exasperation for members as well as our office numerous times over the past several years. Furthermore, it has also created something of a bugaboo for the Police Surgeons. It appears that the Department has taken the hard-line position that an old injury that has become quiescent does not recur in the absence of some new strenuous, however minimal, or accidental event, be it at home or in the line of duty. Again, this illustrates precisely why it is so critical to give your treating physician a spot on history of the original injury and the current complaint of pain. Further complicating this matter for the member is that the Police Surgeons are not prone to recognize the recurrence of a prior injury when the aided number for that injury has not been used over the course of some years and there has not been any treatment for the injury over the course of the same years. Therefore, there is a belief among members that an “I – number” must be used periodically in order to preserve it so that line of duty status continues for that injury. While in practice this appears to alleviate the disagreement we have been having with the Police Surgeons over these issues, the reality is that there is no such requirement either in the law or in the Department Manual.  The bottom line is that if an injury is characterized as a “recurrence” of a prior claim by a treating physician, the member has a right to re-open that “I- number.” If the Police Surgeon does not accord “recurrence” status to a current symptomatic episode from the original injury, the member’s recourse is to request Medical Review and/or a GML Sect. 207-c hearing.

That being said, the Police Surgeon has a right to evaluate the injury to determine whether (s)he agrees or disagrees with the treating physician in the case.  Each side has rights either under the law or pursuant to the contract or Memorandum of Understanding.  If the Surgeon agrees with the treating doctor then all will flow as planned.  Unfortunately, lately, the Police Surgeon has been reluctant to agree with this position. In some cases, the member is then directed to file a new injury packet.  This simply is not the course of action for the member to take.  If this situation occurs, immediately contact your PBA trustee or delegate as well as our office. As noted above, at this point, pursuant to the M.O.U., the member has a right to either Medical Review and/or a GML Sect. 207-c hearing.  Once we evaluate the situation and the medical records, we will be able to determine the proper course of action that will best protect the member.

The point of this discussion is to make each member aware that (s)he has rights, and we will protect those rights, given the opportunity to do so.  Unfortunately, we have seen members risk or even lose these protections by filing inappropriate new injury packets instead of challenging these unfavorable “recurrence” determinations. And, if the “recurrence” occurred at home, the member is burning his or her own accrued time and using his/her private health insurance for treatment even though the injury may still be the responsibility of the Department.  Once again, each situation is different so seeking the advice of your delegates, your trustees,  your union, and your lawyers are in your best interest.

 

As always, it is a pleasure and an honor to represent Nassau’s Finest who protect and serve Nassau County.  Each consultation is free as we are a service provided to members by the PBA. If you have any questions about this article or any other disability-related legal issues that may be on your mind, contact us anytime at 516-941-4403 or by e-mail at mrada@fbrlaw.com.

 

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