June 2018 Legal Report

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

In last month’s Legal Report we discussed how an administrative hearing pursuant to Sec. 207-c of the General Municipal Law (GML) is used to challenge an unfavorable line of duty determination by the Police Department. In that Legal Report we also mentioned that Deputy Chief Ronald J. Walsh, Jr. was to serve as hearing officer for the 207-c hearing which was held on April 25, 2018, the first such hearing held in about 10 years or even more. We have not yet received the decision in that case and a second 207-c hearing has been scheduled for June 11, 2018, in a new matter. Deputy Chief Walsh, Jr., will once again be serving as hearing officer. We will report on the outcome of these cases.

In addition to appealing determinations of whether or not an injury happened in the line of duty via a 207-c hearing, there is another appeal process, “Medical Review,”  to “appeal an initial determination of the Chief Surgeon, or his physician designee regarding [members’] line of duty or off-duty injury or illness AND [emphasis added] involving:

  1. [The member’s] ability to work in either a full or restricted duty capacity; or
  2. [The member’s] ability to work within [his/her] physical limitations while at work; 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 [emphasis added; this may sound like a line of duty or non-line of duty determination, but there is a fundamental difference, i.e., is the manner in which the injury occurred reasonably expected to cause the claimed injury?]; or
  5. A determination as to the length of time it may be necessary for a member’s disability to resolve.

As discussed in last month’s Legal Report, we want to emphasize that as in GML Sec. 207-c hearing cases, Medical Review matters also begin with your line of duty injury; Art. 7, Rule 7 of the Nassau County Police Department Manual states: “When injured while acting within the scope of official duties:

  1. 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].

Notification of the injury to the police department must be done by completing an aided packet; it is our preference that you complete a full aided packet as opposed to a non-recordable report for the key reason that a full aided packet will result in the Police Department filing a Workers’ Compensation form C-2, while a non-recordable will not. Your accident report should be accurate and thorough enough so that the mechanism of your injury (i.e., how you were injured) is completely transparent; if some defect, like a collapsing step, or a ladder that broke, caused your injury, you MUST be certain to include this fact in your accident description. You should also be very careful to make sure that all the paperwork you complete in connection with your Workers’ Compensation claim, or any other legal claim, contains the same description. (See prior editions of the Legal Report for discussions on the important difference between an “accident” and an “incident.”) Make sure to include ALL the body parts that you injured. If your neck hurts immediately and very badly but you also “bumped” or “jarred” or “poked” your knee, you must also include your knee as an injured body part. If you do not and you later seek to make your injured knee a part of your case, the Police Department will push back hard against your attempt to add a further injury to your accident report and will not grant you an I-number for an injury not reported on your initial paperwork, although you may be successful at establishing a consequential injury in your Workers’ Compensation case. With no I-number you do not get the full salary that comes along with GML Sect. 207-c benefits (unlimited line of duty sick pay) and you burn your accumulated sick time when you are not able to work. So, if with proper treatment, your neck is no longer disabling, and you are able to do RA but your knee injury is becoming progressively worse and you wind up needing surgery on your knee you will burn your own sick time because the Police Department will take the position that your knee injury is not causally related to your accident, all because you did not list your knee as being injured on your initial accident report. Take your time completing your accident report because it may prove to be extremely significant in the future. If you have any doubts about completing your accident report please contact your PBA delegate, trustee or us for guidance.

The Medical Review process, for example, typically begins like this: you have been out of work on line of duty, 207-c pay status for 90 days due to a line of duty injury to your knee. You have been seeing your treating orthopedist regularly who feels that you are not yet capable of returning to restricted duty. However, at your next scheduled appointment with the Police Surgeon he determines that you are fit for restricted duty and orders you to so report. Obviously you must follow this lawful order of the police surgeon. This is where Medical Review comes in.

From the time you have “personal receipt of the Chief Surgeon’s determination” regarding your fitness for RA you must submit a written request for Medical Review within 30 days to the Commanding Officer of MAO. The Memorandum of Understanding (MOU) that established the Medical Review process provides that the CO of MAO MUST immediately notify and transmit a copy of your request for Medical Review to the Chief Surgeon’s Office AND to the PBA. Notification to the PBA is a very important step n the process because this is when the PBA becomes aware that you have requested Medical Review so that the PBA will be able to take all necessary steps to assist you with your appeal, steps that MAO and the Chief Surgeon’s Office will most assuredly NOT take even though they have the means to do so. To be safe, when you request Medical Review have MAO give you a date stamped copy and call the PBA to alert them that you have made the request.; as an even greater precaution you should also make sure that you send a copy of the date stamped request to the PBA. To be fair the MOU does impose certain obligations on the PBA, but in the absence of the required notice from MAO, or you, the PBA has no knowledge of a request for Medical Review. In the absence of notifying the PBA, MAO and the Chief Surgeon’s Office, at the very least, should do all it can to assist you by providing ALL the medical evidence it has access to, including whatever objective test results and medical reports they already have from treating physicians; in recent cases MAO and the Chief Surgeon’s Office have not done so.

You must keep in mind that you have 30 days from the day you receive the Chief Surgeon’s determination that you are able to do RA, to request Medical Review. It is our emphatic suggestion that you use these 30 days to your advantage, because be assured that MAO and the Chief Surgeon’s office will use every opportunity to its advantage and to your disadvantage. As soon as you request Medical Review, step one (1) of the process begins: a Police Surgeon will contact your treating physician to see if they can come to a meeting of the minds regarding your ability to do RA. If both physicians agree that you can do RA, then you have lost Medical Review and you must return to work RA. If both physicians agree that you cannot do RA, then you have won Medical Review and you remain on line of duty sick time. If the Police Surgeon and your physician cannot come to an agreement regarding your ability to do RA, then the next step in the process is for you to be examined by a “third neutral doctor.”

There have been problems when you take the very short walk from the Chief Surgeon’s Office where you have just been ordered to RA and walk right into MAO to request Medical Review: the Chief Surgeon’s Office will be on the phone to speak with your treating physician before you have reached your car in the parking lot. When you request Medical Review you are asked to provide the name and telephone number of the physician you want the Police Surgeon to contact. If you do not give your physician a head’s up, if you do not review your medical condition, and treatment and meds with your treating physician before a Police Surgeon calls him, you have put yourself and your treating physician in a no win position: when the Police Surgeon calls, your doctor may be very busy handling a waiting room full of patients and completely unprepared to discuss your condition, your doctor may not have your medical file available for review or your treating doctor may be intimidated by the Police Surgeon, or all of these. However, you can only remain out of work if you request Medical Review, so it is our suggestion that you request Medical Review right away, but do not indicate who the Police Surgeon should call on your behalf until you have had the opportunity to discuss your designated physician with the PBA, until you have spoken with your physician to alert him to expect a call from the Police Surgeon, to find out when is the best time for him to discuss your medical condition with the Police Surgeon and the opportunity for you to confirm your treating physician is current on your meds, complaints, restrictions and limitations.

If at all possible make an appointment with your treating doctor within the 30 days allotted to you so that your doctor has the benefit of a recent physical exam on which to base his discussion with the Police Surgeon. However, be very certain to provide the name and telephone number of your treating doctor, or any other physician you designate, to MAO within the required 30 days; MAO will hold you very exactly to your requirements and if there is any way for giving you or the PBA tsuris, MAO will. The PBA has found that MAO has applied a very technical approach to its interpretation and implementation of the MOU.

In the meantime stay safe, but if you are injured in the line of duty may it be the result of an accident not an incident. If you have any questions regarding this Legal Report or claims involving Workers’ Compensation, Accidental Disability Retirement (3/4), Social Security Disability Insurance, Veterans’ Disability or Personal Injury Accident cases, please do not hesitate to contact us at 516.941.4403 or mrada@fbrlaw.com.

Because of our dedication to the members of the PBA we will always do whatever it takes to protect the interests of police officers, their families and friends.