March 2021 Legal Report


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

Being an attorney carries responsibilities that can entail daunting tasks when you begin to factor in all the potential issues that can crop up in a particular case. Representing clients in disability cases such as the cases that we work on share many concerns. And to a very large degree, our job as attorneys is to be issue spotters and anticipate problems before they become reality. When it comes to line of duty cases, we are doing that on a continuous basis.

As we have written about on countless occasions, each line of duty injury case begins with a moment in time, an event, that causes injury or illness. Immediately at that moment, issues can creep up that have long lasting effects on the remainder of the claim. If that accident is written up incorrectly or inaccurately, the member instantly could have written away a potential 3/4 disability claim. Similarly, if the member fails to list all the injured body parts from a particular event, they could be precluding themselves for medical treatment to that part of the body for the entire life of the claim, including line of duty status. So, what issues are some of the more nuanced ones that keep us awake at night on cases?

For starters, with so many younger members on the force, it is incredibly important for them to understand two issues that can be complicated but can destroy a disability pension case. Those two issues are being on restricted assignment for too long or performing too much overtime while on restricted assignment. In general, it is hard to see how either one of these scenarios could happen with the focus that the Department places on members after they become injured. Between the visits to the police surgeon as well as interactions with MAO, there are many people that are involved in these cases including PBA delegates, leadership, and attorneys so that things should not fall between the cracks. However, it is when the PBA and the lawyers are left out of the process that we see issues pop up.

If a member is injured in the line of duty and returns to work in a light or restricted duty assignment, a two-year clock has just begun to run. This time limit is about a potential disability pension case in the future. Typically, in a disability pension case, we need to prove that the member is “permanently incapacitated for the performance of the FULL duties” of a police officer. That standard is for both 3/4 Accidental Disability as well as 50% Performance of Duty cases. However, if a member starts restricted assignment and does not return to full duty within two years, and then files an application for disability retirement benefits, the Retirement System effectively changes the case by operation of law. In this instance we now must prove that the member is permanently incapacitated from the LIGHT duties to which he or she was assigned. Obviously, this changes the case entirely and becomes a much tougher standard because it is much harder to prove a police officer cannot do light duty as opposed to full duty.

Similarly, if a member performs too much overtime, the outcome is the same. In the same section of the NY Codes, Rules and Regulations (NYCRR), it is indicated that if a member performs more than 100 hours of overtime in any twelve (12) month period within the period of two (2) years prior to filing an application while on restricted assignment or light duty for at least one (1) year before filing the application, the standard for disability cases likewise shifts to needing to prove that the member is permanently disabled from those light duties instead of full duty. Further, the NYCRR provides that there is no distinction between mandatory or voluntary overtime. The Retirement System is also very draconian about that figure because as soon as the Retirement System finds out that the member has done 100 or more hours of overtime during the pertinent period the standard of proving disability changes from full duty to light duty. And given the results of pension claims, we can say with experience that the Retirement System is routinely getting this information from the NCPD as part of its development of disability cases.

The other thing that we have noted much more recently in our private interviews has been members’ activities outside of the police department and how they can affect their line of duty status. We have not seen any sort of considerable shift in focus on this from any agency such as more frequent investigations or things of that nature, but they are the type of things that worry us on certain cases. This can especially be true with members that might have jobs outside the Department such as in security or real estate. As a rule (and it probably goes without saying), you would never place the police job in jeopardy under any circumstances. So, if a member suffers a line of duty injury, the ramifications of that injury will affect any outside activities as well. It is almost impossible to argue that someone is disabled or needs accommodations from police work, but that person at the same time is unlimited in another capacity. The limitations should always be consistent.

For years we have dealt with the following issue regarding Social Security Disability claims. The Social Security Administration (SSA) puts heavy emphasis on what the SSA terms “Activities of Daily Living”. What we impart to our clients is that the limitations and functional restrictions that one might have at work such as no prolonged sitting or the inability to use their hands repetitively throughout the day must be equally problematic at home and elsewhere. It is simply inconsistent to argue that someone is incapable of performing sedentary desk work due to those limitations, but they can sell things on eBay all day while at home or text all day with friends and family. This is not to imply that someone who is injured absolutely should not be doing these things, but instead they need to be doing them in GREAT moderation, a rare occurrence. It should come nowhere near implying that the injured member can perform those activities on a regular and prolonged basis throughout the day. Like wise it should come as no surprise that when a claimant alleges a seizure disorder the Administrative Law Judge will inquire about the claimant’s driver’s license and driving.

As you can see, there are numerous pitfalls and issues that we worry about regarding cases that simply will not be in the forefront of a member’s mind when they become injured. What we have provided here are simple examples that pop up from time to time, but there are many more that we have seen over the years. As with any issue, we are a resource for you to take advantage of when you find yourself having sustained a line of duty injury. Also, it is very good and important practice to keep your PBA delegates, trustees, and leadership involved in the process as well. We alluded to this earlier in this Legal Report, but most of these issues creep up in situations where the injured officer fails to consult with PBA leadership. It is very hard to be an expert in these issues unless you know how to spot them. Please take advantage of the resources at your fingertips.

As always, we wish you the best and to stay safe in these trying times. We are always at your disposal and available to assist in all matters. We can be reached at (office telephone #) 516-496-0400 or by cell: Milan Rada at 516-698-2008; John Hewson at 516-946-5606; Sean Beaton who handles the dedicated Workers’ Comp number at 516-606-1616; and by e-mail at mrada@fbrlaw.com. Until next month, please stay safe out there.