February 2017 Legal Report

Legal Report by Milan Rada Esq. with John Hewson, Esq. We all know the old adage about a tree falling in the forest without no one around.  Unfortunately, the same is true of injuries that go unreported.  Did the injury actually happen if no one knows about it?  It sounds more philosophical than it should because obviously, the injury happened, but the point is simple.  If the injury goes unreported, then you risk the proposition that it’s as good as saying it never happened at all.  The purpose of this month’s Legal Report is to stress the importance of making sure that police officers protect their rights by timely filing accurate incident reports. Failing to do so guarantees that everything that might go wrong with your claim, will go wrong with it.

Injuries occur every day on this job, and the severity of those injuries can vary from very minor to extremely serious.  However, the simple adage that we continually stress is to treat every injury exactly the same.  Quite honestly, the Departmental manual does the same exact thing.  As the Legal Report has frequently cautioned in the past, once an injurious event occurs several important timelines begin.  Every injury must be reported to the Department within seven (7) days of the injury, per the Department’s Manual.  This seems simple enough, but in our office, countless numbers of time we entertain calls from cops or PBA delegates where at some point in the conversation we hear, “the member didn’t think it was a big deal at the time.”  This entire scenario can be avoided if every member takes this simple point to heart: protect yourself. Responding to an aided call is an everyday occurrence for a police officer, who is called upon to protect the general public and to protect fellow officers. A police officer must also make sure to protect him/her self. Making sure you timely and accurately report your injuries is another extremely important way of protecting yourself against future problems.

Reporting an injury leads to a number of differing options: should I do a “full packet” or just a “non-recordable”? Who do I report the injury to? My supervisor wants to do the packet and the incident report right away, so should I oblige?  These are all important considerations. For starters, after reporting an injury no member should then presume that everything is being done properly to protect them after that first mention of the injury.  This is not to say that anyone at the Department is looking to harm a fellow officer, but the reality is that each member must take his or her claim far more seriously than anyone else they report it to.  This is usually true of anything in life.  From a legal perspective, we have written numerous times about the importance of the initial injury report and the description of the injury.  To leave that description to someone else is an extremely dangerous way of protecting a potential disability claim in the future.  This is especially true when reporting the injury to someone who was not even there when you were injured.  How is this person to know all the pertinent details and facts?  General descriptions such as “slipped and fell” or “injured while restraining a person” can instantly turn a potential 3/4 or Accidental Disability Claim into a 50% or Performance of Duty one.  For this reason, we also suggest making sure that your delegate knows about your injury.  Your PBA delegates are very insightful into these claims.  Furthermore, they can get in touch with us or help get you in touch with us so that we can properly protect your interests at every stage of the claim, including right after the injury occurs.  In addition, we generally do not suggest doing non-recordables.  The simple reason for this is that no one can be certain that a claim will not develop into something more severe at a later point.  Making sure you are fully protected initially can never be overkill when it comes to your career, your pension, and your treatment.

If you suffer an injury, the next important aspect to protecting yourself gets triggered: make sure that you see a physician in order to determine the nature and extent of the injury.  Of course, this is important not only because you need to get treatment for your injury but also if you will need to miss any time from work due to the injury, the Department will require a report from your physician that substantiates the extent of the injury and how it occurred. More importantly, the sooner that proper treatment can begin, the greater the chance of a full recovery and the greater the likelihood that causal relation will be established.  Statistics show over and over again that if a condition or injury lingers for more than six months, the odds of recovery from that injury drop greatly.  Granted, some injuries are difficult to recover from, but it would be an absolute shame to have an injury become permanent and career-ending simply because someone failed to obtain readily available medical treatment promptly.  Once again, protecting yourself is something that you can control even if the result is out of your control.

At the point in time that an injury is severe enough so that an officer needs to miss work due to an injury, the Department also requires the officer to be evaluated for duty fitness by a physician from the Police Surgeon’s Office.  Although in the majority of circumstances the Surgeons actually come to reasonable conclusions that validate the opinions of the treating physicians, there are those occasions where a dispute may arise between the Police Surgeon and the treating physician regarding an officer’s workability.  It is important to know the rights that you have in this situation pursuant to the Memorandum of Understanding between the Department and the PBA.  Both parties are entitled to due process rights that need to be protected and respected.  In a situation where there is a dispute between the treating physician and the Police Surgeon, the Police Surgeon must contact the treating doctor to see if there is any common ground that can be agreed upon in terms of allowing the member to return to work, whether at full duty or restricted assignment. Most of the time this will occur where the treating doctor lists the member on “no duty” status while the Police Surgeon believes the member can return on restricted assignment.  If no agreement can be reached between the medical professionals, the Police Surgeon will render an opinion regarding the duty fitness of the officer.  If the member still wishes to dispute the opinion of the Surgeon then the member must request Medical Review in order to settle the dispute.  Medical Review involves the member being seen by an independent third party doctor whose opinion regarding duty capability will become binding on all the parties when accepted by the Police Commissioner.  The request for Medical Review must be submitted to the Department within 30 calendar days of personal receipt of the determination regarding duty status.  This is a situation where keeping your treating physician informed about the status of your claim will do much to help protect it.

As always, our advice to members is that when injured in the line of duty, contact our office as soon as possible either by calling us directly or by making contact through your PBA trustee/delegate.  Our goal is to make sure each member is protected to the greatest extent possible, both in minor injuries as well as in major ones.

It is always our greatest honor and privilege to represent and help protect the legal claims of those that keep us safe. If you need our office for any questions or concerns, feel free to call us at 516-941-4403 or by email to mrada@fbrlaw.com.

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