December 2019 Legal Report
By: Milan Rada, Esq., with John Hewson, Esq.
The primary goal of the Legal Report is to educate the membership so that avoidable mistakes are not made when one of you is injured in the line of duty. Of course, some mistakes aren’t entirely avoidable and not every case can be a three-quarter event. But, in general, virtually everything we write about comes from experiences police officers bring to us when consulting about line of duty injuries. We encounter cases that have problems we can correct, but unfortunately also cases with problems that just cannot be fixed. Recently, a member of another department came to see us with one such situation, but it is a situation that could easily happen to an officer here in Nassau County as well. The problems we are discussing in this Legal Report apply to all police officers who are members of the New York State Police and Fire Retirement System.
The officer suffered a severe back and knee injury as a result of a car accident while responding to an aided scene. The officer was driving with lights and sirens on when his police vehicle was struck by a motorist who did not yield the right of way. Clearly, this is covered as an “accident” under the Retirement System’s rules and regulations, so there would not be an “accident” vs. ”incident” issue in the case. The officer’s injuries were so severe that he required surgery to both the knee and back, and each of the treating physicians in the case noted that his career as a full duty officer was over because of the accident. The officer was not ready to retire, and he was holding out hope of improving to the point that he was able to return to full duty assignment. However, in the interim, the officer worked restricted duty. From time to time, the officer would pick up an overtime shift or be ordered to stay for overtime, but he thought nothing of that because he had been ordered to do so by his department. His claim for accidental disability retirement benefits (3/4) was denied; so what went wrong?
Those that have read the Legal Report for years can see exactly where this is headed. Our police officer’s department was not one that stayed on top of the amount of overtime being performed by its members, nor was the member educated on how that could affect his disability pension case in the future. By the time his doctors had told him that he was permanently disabled for the performance of the full duties of a police officer, the member had been working restricted assignment for almost 20 months. The bigger issue was that in those 20 months, the member had completed approximately 170 hours of overtime while on restricted assignment. The Retirement System obtained a copy of his payroll information from his department, and they found that in several 12 month segments, the member had performed well over 100 hours of overtime while on restricted duty. Therefore, his application for three-quarters was decided against the restricted duty standard, as opposed to a full duty standard, and the application was denied on the grounds that the applicant was not permanently disabled from the restricted duties he had been performing and continued to perform.
Understandably, this officer came to us aggravated and very confused by what was going on in his claim. His prior attorneys who handled the disability pension either failed to notify him that this could be an issue or simply did not know how much overtime the member had performed in that 20 months while working restricted assignment. Thus, after the issue was presented at the hearing by the Retirement System, the applicant had no chance of success unless he was able to prove that he was incapable of ever performing restricted assignment again. That was impossible given that the officer was still working restricted duty for his department.
Another officer from an upstate deoartment recently retained our firm to assist with his Workers’ Compensation claim. Similarly, this officer was in the dark as to how his restricted duty status, his overtime, and the combination of the two could affect a potential disability claim. This officer was having a particularly difficult time getting treatment authorized through his compensation claim which is why he primarily came to our office, but in the discussion, he presumed he had an excellent three-quarter case because “people on his job” had told him so. Once again, dreaded “misinformation” plagues the entire fact pattern for this officer’s case. Simply put, the officer has been on restricted assignment for over two years and does approximately 200 hours of overtime each year in his estimation. We once again had to be the bearer of bad news inasmuch as this officer will have virtually no chance of winning a three-quarter, or a 50%, claim because he, too, will need to prove that he is permanently disabled from performing the restricted duties of a police officer as opposed to simply proving that he is disabled from full duty. Proving you cannot do restricted police duties while you have performed 100 or more overtime hours in that capacity and continue to work restricted duty is not a burden of proof you would like to face and one you can avoid if you know and follow the rules.
With those two examples in mind, we want to make sure that the Nassau County police officers we represent do not make the same mistakes that your colleagues in other departments appear to be making. Our hopes are that the officers here are better educated as to their rights and obligations and the pitfalls to avoid. There are two main rules regarding restricted assignment and overtime that each officer must be aware of: Generally, if a member is injured and files for a disability retirement (either three-quarters or 50%), the member will need to prove that he or she is permanently disabled from the full duties of a police officer. This standard includes all of the heavy exertional and dangerous activities that an officer must be capable of performing including apprehending and engaging in physical altercations with suspects, or carrying a trundle with a person on it weighing in excess of 150 lbs. However, if a member is assigned to restricted assignment for a period of two years without a bona fide return to full duty assignment prior to filing their application for disability retirement, then the application will be graded against whether that member is permanently disabled from the restricted duties to which he or she was assigned. Thus, the standard of the disability case has changed and is now much more difficult to win.
The overtime rule regarding disability pension cases can be confusing but causes a similar outcome. That rule states that if a member performs 100 or more hours of paid overtime in ANY twelve-month period of time, during the two (2) year period prior to filing the application, and while on restricted assignment prior to the filing of the disability application, then that claim will also be graded against the restricted duty standard. The key is that the overtime can be calculated in ANY twelve-month period of time prior to filing, not a calendar year or a fiscal year. And, that amount of overtime can be pretty easy to reach if you are not careful in keeping track. The simple rule we tell every officer is if you are doing overtime, keep it low and do not come close to 100 hours prior to the filing of the application; even better keep it at zero if possible because a disability claim is about DISability not ability. Otherwise, the only thing to fix this mistake is a bona fide return to full duty in order to reset the clock. A police officer we are aware of recently received a denial of his disability application because he worked 100.5 hours OT in a 12 month period prior to filing his application. Remember no more than 100 hours OT MEANS no more than100 HOURS OF OT.
As we reach another holiday season, we once again want to express our gratitude to our clients and how honored and privileged we are to represent the hard working members of the Nassau County Police Department. We take this responsibility extremely seriously and want only what is best for each and every one of you not only during this holiday but throughout the year. If you ever have any question, suggestions or concerns, please do not hesitate to contact us at email@example.com or at 516-941-4403. Best wishes to all of you, your family and friends for happy holidays and a very Happy, Healthy and Safe New Year!