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April 2016 Legal Report

Legal Report

By Milan Rada Esq. with John Hewson, Esq.

Here is a scenario that is playing itself out over and over again. A police officer becomes injured in a bonafide accident on the job. There is no question that it is a 3/4 type of scenario. The officer is left with significant injuries that fail to improve over the next several months. It becomes to look more likely that unfortunately this officer’s career may be over. Wouldn’t it be a shame and a tragedy if the claim could not win simply because a completely avoidable mistake occurred? We completely agree which is why we write this column monthly.

There are countless ways that a great claim can become an unwinnable one in an instant. The crime in the entire scenario is that most, if not all, of these mistakes can be completely avoided if every officer knew what to be on the lookout for. This month’s article is to simply go over several of the most common mistakes that make good claims go bad.

For starters, this stuff can get complicated. We certainly do not expect any officer to understand the nuances of disability law. Quite frankly, that’s what we are here for, and we are proud to assist in any way that we can. Also, the most obvious way to avoid any of these mistakes is by coming to see us as soon as possible after suffering an injury. Not only can we be certain that the proper paperwork is filed timely, but we can also go over the future pitfalls to avoid so no issue goes unknown.

Generally speaking, when an officer is injured and files for a disability pension, the Retirement System will be judging the case on the basis of whether the officer is permanently disabled from the full duties of the job of police officer. As you can see, any injury that is of such severity that it prevents someone from performing all of the tasks required, from routine to the most dangerous, can be viable for a claim. We have been successful in achieving 3/4 pensions for members who have had severe back injuries to shoulder injuries to even finger injuries. The key to those claims however was judging the case against that full duty standard. However, the Retirement System decided approximately two decades ago that not every case should be judged against that full duty standard. Once the case is judged against the light duty or restricted duty standard, it is obvious the case becomes far more difficult to win. The Retirement System began using a New York State Rule and Regulation regarding two major instances wherein the standard of the claim changes to the light duty standard.

While recovering from an injury, it is common for an officer to be cleared to return to duty on a restricted duty basis. This is becoming more and more commonplace as we have seen. On its face, there is nothing harmful about this to a disability claim. It is a perfectly acceptable practice, and the officer’s doctor may even agree that those duties can be performed. However, once the member is on restricted assignment for more than two years, the Retirement System will now consider the officer’s disability case using the light duty standard rather than the full duty standard. This comes directly from that New York State Rule and Regulation. Therefore, it is of utmost importance that the officer must file his application for 3/4 Accidental Disability benefits or 50% Performance of Duty Disability benefits prior to being on restricted assignment for two years. Plus, keep this in mind as well. The only thing that stops that two year clock is a bonafide return to full duty status – not being placed on no duty status. If a member goes out of work completely from light duty, it will not reset that two year clock. Generally speaking, we do not see this occurring as much as in the past simply because the Department will now consider filing the application on the member’s behalf before that two year window closes, but that is far from guaranteed. The only way the officer can protect themselves is by making sure the application is filed timely.

Directly from that same rule and regulation comes the overtime issue that we have spoken about in great detail in the past. This issue is one that can easily occur and easily destroy a great disability claim. Quite simply, the rule indicates that if a member is continuously assigned to restricted assignment for a period of one year prior to the date of application and that applicant has performed at least 100 hours of paid overtime while on restricted assignment during any 12 month period within the two year period prior to filing, the Retirement System shall render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment. This is a situation that can easily occur as you can see. We have seen countless cases where an officer will be on restricted assignment for more than a year before they file for disability, but if they have not been cognizant of the amount of overtime they have performed then the case might have problems.

As you can see, it can be very simple to jeopardize an otherwise entirely viable disability claim. The easiest way to avoid these risks is to recognize them and get protected from them. This is the reason why we consistently suggest that any officer that is injured should contact their delegate as well as our office as soon as possible in order to best protect yourself, your cases, and ultimately your financial security. Often, we do not have to engage the Retirement System in long litigation and drawn out arguments simply because we avoid the mistakes that cause those issues in the first place. The vast majority of the cases that come through our office are successful. Quite honestly, the most difficult cases tend to be the ones where the member is coming to our officer very late in the process after most of the mistakes have already occurred or because they sought of the advice of other attorneys who simply do not know the System with the expertise that we have. Thankfully, we often clean up those mistakes but not every mistake can be fixed. It would be a tragedy to lose 3/4 simply because an avoidable error was made.

We have had the great honor of representing the Nassau PBA in disability cases since 1988. The hardworking officers of the Nassau County Police Department protect us every day and night in the most dangerous of circumstances. We have always made it our number one priority to fight and protect those who protect us. If you have any questions or become injured, please never hesitate to contact us at 516-941-4403 or by email at mrada@fbrlaw.com.

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