August 2017 Legal Report

Legal Report by  Milan Rada, Esq. Labor Day arrives – it’s the end of the summer, teachers, and kids are back to school, PBA Open Meetings resume (3rd Thursday of every month @ 8 PM; September 21 is the next Open Meeting), adults have to get out of vacation mode and get serious and the Legal Report is back after a two month break.

Some members have raised questions that illustrate continued confusion about, or unawareness of some rights and procedures, which if not properly addressed can result in substantial losses of benefits.

Social Security Disability Insurance (SSDI) benefits are available to anyone who has accumulated the required number of quarters of coverage (i.e., paid FICA tax) and can demonstrate that (s)he is “ [unable] to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” One of the requirements to establish entitlement to SSDI benefits is that the applicant must not be engaged in “substantial gainful activity,” which means essentially that the applicant is not working. In determining whether work activity amounts to “substantial gainful activity,” an applicant’s earnings will be considered. Payments of other disability benefits (i.e., accidental disability retirement benefits, performance of duty disability retirement benefits, Workers’ Compensation benefits) or accumulated sick/vacation time or royalties or interest on investments or sick pay do not constitute “earnings” so as to disqualify an applicant from receiving SSDI payments. So, if an applicant is disabled within the meaning of the Social Security law and is receiving any of these payments, including the receipt of even full GML Sect. 207-c tax-free wages, SSDI benefits are payable.

Another issue that needs clarification is understanding the definition of a line of duty injury or illness for members of this Police Department.  According to a Memorandum of Understanding dated March 25, 1993, entered into by the Nassau County Police Department and the PBA, a line of duty or illness is defined as follows:

  1. An injury or illness received while the member was on duty (while not on meal period, except if in a Departmental building or vehicle), if the member was not acting illegally; or
  2. An injury or illness received while the member was acting pursuant to the duties and responsibilities of a Police Officer; or
  3. An injury or illness received while the member was acting in response to the direction of a Superior Officer.

Line of duty status given to an injury resulting from “acting pursuant to the duties and responsibilities of a Police Officer,” is completely in synch with the Department Manual, Department Policies, POL 4001 Duty: “In furtherance of the Department’s Mission, it is the duty of the Police Department and the Members of the Force, at all times of the day and night, to protect life and property, prevent crime, detect and arrest offenders, preserve the public peace, and enforce all laws and ordinances over which the Police department has jurisdiction.”

A Member of the Police Force acts within the scope of official duties when (s)he performs any “legal act or activity either on or off duty, pursuant to the duties and responsibilities of a Police Officer” (see Department Manual, Glossary, “Scope of official duties”; emphasis added). In such a circumstance a member of the force should complete a line of duty packet whether the member has identified himself as a police officer or not. If circumstances permit, identifying yourself as a police officer is a preferable action, but if not possible the injury will still be line of duty if conditions, as described above, are met. For instance: if an off-duty police officer runs into a burning building to rescue any people that might be trapped inside, this is an example of acting “within the scope of official duties;; if an off-duty police officer stops at the scene of a traffic accident and assists in extricating someone from the car, this is yet another example of  acting “within the scope of official duties.”  In both of these examples line of duty status will be accorded and whether or not the police officer identified himself is not the determinate factor. However, if a police officer becomes involved in a bar fight, whether or not the police officer identified himself might be a key factor.

The most important thing to remember is accuracy: if you did identify yourself as a police officer all documentation should say so. Likewise, if you did not identify yourself as a police officer, all documentation should so state. There must be complete, truthful consistency on this matter.  The accident report to the police department, the Workers’ Compensation Form C – 3, and any documents completed in connection with a criminal prosecution must all be completely accurate and consistent on the issue of police self-identification, as well as all other factors relating to the event.

As a reminder, be aware of Department Manual Article 7, Rule 7, which provides as follows:

“Full pay will be granted to Members of the Force for injuries received while acting within the scope of official duties when such injury has been reported to the member’s Commanding Officer within seven (7) days after the injury was sustained and it can be conclusively shown that the disability was actually received while the member was performing police duty and that no negligence on the member’s part contributed thereto. THIS TIME LIMIT MAY NOT BE EXTENDED EXCEPT BY APPROVAL OF THE COMMISSIONER OF POLICE (emphasis added).”

While failure to notify the Department within seven (7) of an injury has not happened often, it has happened; It did not happen again. In the cases where it has happened, the police officer considered his injury to be minor and that there would be no permanent impairment. When a police officer diagnoses his condition as insignificant and not requiring notice to the Police Department, this police officer is practicing medicine on himself without a medical license. Don’t take chances with a hugely valuable benefit – tax-free full pay for the entire time you are unable to work. Notify the Police Department within seven (7) days of an injury sustained while acting within the scope of official police duties and complete a full aided packet for all injuries. I prefer full aided packets to “non-recordable” reports because a full aided packet will generate the Police Department’s report of the injury to the Workers’ Compensation Board and will be in greater detail than a “non-recordable.”

As always, you are encouraged to contact Milan Rada, Esq. of Fusco, Brandenstein & Rada, P.C., at 516-941-4403 or by e-mail at mrada@fbrlaw.com with any questions, observations, suggestions or criticisms. We have been proudly representing members of the PBA in all disability and personal injury matters since 1987. We welcome your referrals of family and friends to our office.

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