February 2019 Legal Report
By: Milan Rada, Esq. with John Hewson, Esq.
We’re sure that it comes as no surprise to hear that MAO has been giving police officers a particularly difficult time. We have found that in many instances where a police officer is faced with an unfavorable determination by the Police Surgeon or MAO the officer does not follow the proper procedure to protect his/her rights.
You may be challenged by the Police Surgeon or MAO as to whether or not your injury was sustained in the line of duty or that your claimed recurrence of pain from an old injury is not a recurrence of that injury. Typically the Police Surgeon will deny recurrence of an injury if there has not been recent medical treatment for that injury. For example, if you injured your back in the line of duty in 2013 and you have no treatment for that injury in the past three (3) years, you can be certain that you will be denied recurrence status for that injury. Or, you may find yourself in the position of your treating doctor telling you that you are unable to work in any capacity, including restricted assignment, yet the Police Surgeon orders you back to restricted duty.
There are procedures for dealing with these situations, which are set forth in a Memorandum of Understanding between the PBA and the police department dated March 25, 1993. The two (2) procedures are “Medical Review” and “Administrative Hearings” pursuant to Sect. 207-c of the General Municipal Law.
When the issue is whether or not the injury occurred in the line of duty, the proper procedure for you to follow is to request a Sect 207-c hearing. According to the Memorandum of Understanding, “Members wishing to appeal a non-line of duty determination by the Department may request an administrative hearing in accordance with the provisions of section 207-c of the General Municipal Law, State of New York.” This request must be submitted in writing to the Commanding Officer of MAO within 30 calendar days of being notified of the Department’s determination. A caveat at this point: the Memorandum speaks to being “notified” of the Department’s determination; it does not say “being notified in writing.” So, you must be aware that you have to request a 207-c hearing within 30 days of being told you are being denied a line of duty status. Usually, this determination is communicated to you by the Police Surgeon in which case you can walk across the hall and complete a form that MAO has prepared for this purpose.
On the form, there are two choices provided to appeal the department’s determination: Medical Review and Sect. 207-c hearing. In denial of the line of duty status for an injury, you need to circle or indicate that you want a Sect. 207-c hearing. In this form, you are asked to “include name, business address and telephone number of the attorney who will represent the member at such hearing.” Pursuant to our firm’s retainer agreement with the PBA, we represent members in these matters at no cost to the member. Be aware that the hearing officer or adjudicator in a 207-c matter is selected by the department, and the decision-maker does not have to be independent. In fact, the hearing officer will be a high ranking supervisor, such as a chief. At the last 207-c hearing the presiding hearing officer was Chief Walsh.
When you request a 207-c hearing you should have MAO make a copy for your records. It would also be a good idea to have the MAO officer who takes the request from you to indicate the date it is received with that officer’s initials. Having MAO personnel date and sign your request for a hearing is particularly important if it is taken by a civilian employee of MAO. Keep your copy in a safe place with your other important documents as we did have a very difficult case where MAO “lost” a request for a 207-c hearing. When filling out the form provided by MAO, please be sure to fill it out accurately. Do not leave any items blank. If you have difficulty completing the form, leave MAO with the form and contact your PBA trustee or delegate for assistance. Of course, you can always contact our office and we are happy to assist you. In any event, please contact John Carroll, Sergeant-at-Arms of the PBA at 516-294-6230 as soon as possible and let him know you have filed a request for a 207-c hearing. If you have any difficulty reaching John, you can contact our office. Letting us know that you have requested a 207-c hearing is very important as there is much preparation that needs to be done; the sooner we start to prepare and develop the claim, the better prepared we will be to obtain the result we anticipate or hope for.
The other procedure set forth in the Memorandum of Understanding is “Medical Review.” This process is requested when appealing an initial determination of the Police Surgeon regarding your line of duty injury or off-duty injury and involving:
1. Your ability to work in either a full or restricted duty capacity; or
2. Your ability to work within your physical limitations; or
3. A determination whether a specific condition constitutes recurrence of a previously sustained line of duty injury; or
4. Medical issues as to whether an illness or injury was sustained in the line of duty; or
5. A determination as to the length of time it may be necessary for your disability to resolve.
Our experience has shown that the vast majority of circumstances involving disagreements with MAO can be resolved via the Medical Review process as opposed to a 207-c hearing. However, understanding and appreciating the process involved with Medical Review can sometimes be confusing.
The process works like this: You must submit a request for Medical Review in writing to the Commanding Officer within 30 calendar days of “personal receipt of the Police Surgeon’s determination.” Similarly, as in the 207-c situation, there is no requirement that the Police Surgeon’s determination has to be in writing, so be careful about counting the 30 days. Once you request Medical Review, one of the Police Surgeons will call your treating doctor, whom you will designate on the form provided by MAO, to see if the issue can be resolved in a phone call. Since this step of the process involves the Police Surgeon talking with your doctor, it is imperative that you give your doctor a head’s up – tell your doctor the Police Surgeon will call him to see if the issue can be resolved over the phone; remind your doctor about the date of injury, the body parts injured, the meds you take and your symptoms. The only way for you to alert your doctor is by filling out the request for Medical Review but not indicating who the Police Surgeon should call. Once you have alerted your doctor, you can provide his/her contact info to MAO. Just be sure to do so within 30 days of the Police Surgeon’s determination.
If the issue cannot be resolved in the phone call between the treating physician and the police surgeon, then the member will be ordered to appear for an examination before an independent, third-party doctor whose fee is split evenly between the PBA and the Department. At this point, the opinion rendered by the third party, the independent doctor will be binding upon both parties. Please keep in mind that the third party doctor can resolve any of the issues that are covered under the Medical Review process. Therefore, if the issue for your dispute with the Police Surgeons or MAO is whether the injury is a recurrence, then the third party doctor is in position to determine whether he or she agrees with the treating physician or the Police Surgeon.
Clearly, anytime that a member has a potential dispute with MAO over an injury or duty status, the sooner that member informs his PBA delegate or trustee, the more that member can be properly instructed on what procedure and process to follow. Our most difficult issues have almost always arisen when the member is pressed with a deadline that is approaching or has already had a decision made by MAO that they could have challenged, and they failed to properly or timely do so. With so many members of the Department that are new and with many having never gone through these issues before, providing accurate information concerning their rights is of great importance. Please realize that even though you are given a certain opinion by either a Police Surgeon or MAO, that opinion can be disputed if your doctor disagrees. The PBA has negotiated a process that must be followed by the Department. Allowing the process to be circumvented in any way not only hurts the member at issue but all your fellow members.
As noted above, if you have any questions or issues regarding your claims and injuries, we are available anytime at 516-941-4403. And of course, any questions on any disability or injury-related issues can be sent to firstname.lastname@example.org or call for a free consultation. We know injuries happen…but we always wish nothing but the best and the safest days and nights for all the members we represent. Until next month…