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April 2019 Legal Report

By: Milan Rada, Esq., with John Hewson, Esq.

On countless occasions, we have written about the importance of accident reports and how the initial accident report can often make or break a claim.  Of course, in the heat of the moment and right after an injury occurs, it is incredibly difficult to play out the scenarios under which your career might be over or that this injury may very well be the beginning of something more serious.  However, as we have seen over and over again, the mistakes that are made immediately following an injury can be the difference between getting a 3/4 accidental-disability pension or ending up with a 50% Performance of Duty disability pension.  Two recent cases illustrate this concern perfectly, and what this proves is not only doing the initial reports with the Department matter but also the initial Workers’ Compensation accident reports that you fill out matter just as much. Remember, all accident reports you to fill out and sign matter.

The first situation involves a police officer in another jurisdiction that came to our office to discuss appealing his recent denial for an Accidental Disability Retirement because the hearing officer ruled that he did not have an “accident” as this term is used in the Retirement and Social Security Law while on duty.  This is a topic that we have discussed numerous times over the years and is probably the most frequent question that we get either in our office or when we are out at events.  As we have said many times, as the law is currently interpreted, most events will not be accidents.  The Retirement System simply does not want to pay 3/4 except in the most unexpected of circumstances for the most part.  But that being said, we are firm believers that many occurrences on the job have been unexpected but were simply written up poorly, leading to more denials than approvals by the Retirement System.  In fact, we have always taken the position that the Court of Appeals’ 2018 decision in Matter of Kelly likely should have been an “accident” except for the fact that the initial accident reports were not written up to highlight the most unexpected aspects of the fact pattern. Two examples from our own cases illustrate the importance of detailed and accurate accident descriptions.

In the first case, a detective responded to a scene where he was required to scale a ladder in order to search in the drop ceiling of a store.  While climbing back down the ladder, he fell when one of the rungs came loose and broke from the ladder frame.  As a result, he injured his back and neck requiring surgery, and his career was over.  It seems like exactly the type of unexpected, unforeseen and out of the ordinary event that would be a clear-cut accident, doesn’t it?  Well, the major mistake was made when the initial accident reports were completed.  In his statement, the detective failed to mention the ladder rung coming loose, and his supervisor failed to mention it as well.  His Workers’ Compensation attorneys thought nothing of it because using a simple description such as “detective X fell from a ladder while performing a search” would be perfectly acceptable for the Workers’ Compensation system.  However, when the time came to file for his disability pension, it was a major issue.  The detective and his Department even filed new reports mentioning the broken ladder, and the detective even has a liability action against the owner of the store for the negligence in allowing him to use the broken ladder.  This detective was denied on the grounds that the Retirement System did not believe it to be an accident despite the fact that the subsequent documents and even the testifying witnesses at the hearing stated they were told about the broken ladder almost immediately after the event.  It may sound ridiculous and illogical, but we have been saying for years that the first accident report matters and it matters more than anything else concerning the documentation of your injury.  In this case, it once again came to be true.  Those initial reports led to this detective getting a 50% disability pension instead of a 3/4 Accidental disability pension.  While it may be possible to get this reversed on further appeals, it will be an expensive Article 78 appeal to the  NYS Appellate division with a very, very low likelihood of success.

The second situation involves a case that we worked on right from the start.  While the events surrounding the injury are not likely an “accident” anyway, it illustrates the point about the importance of the initial reports.  In this case, one of our clients was involved in an accident while delivering evidence using a folding dolly cart.  An unexpected and strong gust of wind pushed the client and the cart from behind as he was turning the cart.  The cart tipped over and the officer rolled his ankle suffering a fracture.  As soon as the event occurred, the officer was taken to the emergency room where the fracture was diagnosed.  He contacted his delegate who got in touch with our office very quickly thereafter.  We helped to make sure the accident description was dead-on accurate and included all of the unexpected and unforeseen events of the accident.  What occurred next was entirely out of the officer’s control, although he did everything that he could to protect himself.  His supervisor completed the injury packet and wrote up the event as the member “rolled his ankle while chasing evidence in a parking lot,” which simply is not going to be an accident for the purposes of the Retirement System.  The Retirement System then contacted the Department directly for clarification of the accident description.  In the process, a letter was drafted by one of the Police Surgeons who described the accident as the detective “slipping on wet pavement and falling to the ground,” which also will not be an “accident” as this term is used for ¾ purposes.

The hearing in this matter was incredibly interesting.  The member testified credibly to what occurred at the event.  And most importantly, his testimony matched up to his accident report exactly.  Also, what turned out to be most impressive to the hearing officer was the fact that the Workers’ Compensation description also matched up exactly to the event as well.  And that isn’t by chance – we also did the initial Workers’ Compensation documents as well.  A weak accident description on the Workers’ Compensation C-3 form would have killed this claim exactly the same way as a bad accident report.  In fact, the Retirement System’s attorney tried to bring up the Workers’ Compensation forms and then realized that they all matched up.  He was caught relying on only the Department’s reports which not only did not even match up to each other but also did not contain the signature of the detective. We have not yet received the hearing officer’s decision who may still decide that even our description does not rise to being an accident, but the importance of the initial reports was clear when the hearing officer told the Retirement System’s attorney to move on as he continued to press the issue on the descriptions in the Police Department’s reports.  The hearing officer even stated that the applicant’s descriptions all match up and that was very seriously important to him.

As you can see once again, the first reports are so important to the ultimate outcome of many of these cases.  A simple misstep in the drafting of those reports will be picked up by the Retirement System.  Further, you can basically write any description down on the Workers’ Compensation form and still be covered for that case under the Workers’ Compensation law.  However, this will not be enough for the Retirement System, which is picking up on the overly simple accident descriptions on those forms and using them against the applicants.  So those members that decide to write accident reports on their own or have an attorney help with the Workers’ Compensation forms who do not do disability pension cases will be left praying that their description is good enough, is accurate and withstands the very rigorous review by the Retirement System.  It’s a dangerous game to play with the Retirement System, which scrutinizes accident reports very carefully and, as you might guess, is extremely conservative on the issue of whether it is an “accident” or an “incident.”

If you have any questions about this topic or any other disability topics, please feel free to get in touch with our office at 516-941-4403 or by e-mail at mrada@fbrlaw.com.  Also, when you get hurt, make sure you inform your delegates and trustee to make sure that the reports are done as accurately as possible right from the start.  Until next month…

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