May 2021 Legal Report


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

As the past year has taught us, we must remain ever vigilant in protecting ourselves from the uncertainties that the world possesses. In 2019, we never would have envisioned writing articles about protecting members from the dangers of a pandemic or dealing with the aftereffects of a disease that has ravaged the entire world. With that in mind, from a legal perspective, we have stressed to our clients the importance of ensuring that they continue to focus on the things that can be controlled…because there are certainly enough things beyond that. So, for this month, we feel it important to discuss several of the things that have popped up recently and the things that are always important to know.

We have written many articles over the years about the difference between an “accident” and an “incident” for the purposes of disability pensions. Over the past year, we have also received an increased number of calls and e-mails from clients and potential clients on this same exact topic. It seems that many members are looking at the events of their careers and taking into account what we have all experienced with this pandemic; they are assessing whether or not they have viable ¾, Accidental Disability Pension claims. Unfortunately, in many of these situations, we have been the bearers of bad news for people when we look at the accident statements or simply the events that have caused their injuries in the past. Quite simply, a great Accidental Disability case can be destroyed right from the moment of that first accident/incident statement.

In general, most of the ways in which police officers become injured will not rise to the level of an “accident” as that term is used by the Retirement System. This is not surprising considering the law does include a disability pension for permanent injuries which is the Performance of Duty Disability Pension, which pays 50% of final average salary. Also, in these situations, there is no “correct” way to write up the event to make it an “accident”; events just do not fall into that category. However, when you have a situation that very well could be an “accident” based on the facts of the case, to forfeit that “accident” with a lazy accident description is brutal. As a rule of thumb, these cases often turn on the unexpected or out of the ordinary facts that make the event less routine. The Retirement System continues to argue that injuries that result from performing routine duties or that are foreseeable will not be “accidents” under the law. Therefore, injuries resulting from lifting stretchers (even the newer styled stretchers which weigh considerably more than the older models) will not be “accidents” under the law because these events are both foreseeable and result from performing ordinary duties for a police officer. Conversely, if a member falls from a chair breaking in the precinct and suffers a permanent injury, that is likely a much better case for Accidental Disability Pensions (3/4) because it is a situation that is both unexpected and out of the ordinary and not an inherent risk of performing police duties. On its face, it seems entirely unfair that a member doing his sworn duty is protected to a lesser degree than a member injured in an entirely peculiar circumstance. Unfortunately, this is the current state of the law. Therefore, the most important thing to take away from this Legal Report is to not miss the details of how you become injured. If you believe that there is an odd, unexpected, out of the ordinary fact that led to your injury, do not overlook these details in your accident statement. It very well may be the difference between 3/4 and 50% for the remainder of your life. (Both disability pensions are tax free).

Another question that has been posed more and more recently is how are older injuries from years past handled by the Retirement System. On more than one occasion, we have been told by clients that “someone” told them that if they go back to work full duty after an injury that they can never re-open their line of duty number or get a disability pension on that case. Both of these concepts could not be further from the truth. Now, we do not disagree that both ideas are out there, but you must consider the sources. Odds are the people giving out this information are correct, but they do neither understand the New York State Retirement System nor how it works. What this means is that if you are speaking to a member from the NYPD, they are probably giving you accurate information …but it is about their pension system, not yours.

In the NYPD system, the Police Pension Fund Medical Board has taken the position that if one of its members returns to work full duty, such members are basically implying they have recovered from that “accident” to the extent that any future disability for those body parts is effectively degenerative and not a direct result of the accident. Thankfully, the NYS Police and Fire Retirement System treats these situations differently. Now, the State system does not make it easy, but they do allow for a member to return to work full duty and then subsequently receive a disability pension on that same event. The key is the medical evidence though. In these circumstances we place a heavy focus and emphasis on the opinions of the treating physicians continuing to connect the disability to the accident in question. Without that direct connection, we still would have a very difficult case. However, we have won many 3/4 Accidental Disability pensions over the years for members who have injuries for many years prior. It must be noted that the police officer must be on restricted duty at the time of filing the application. If the police officer has retired and intends to file a disability application after retirement, the officer must be on restricted duty when the application is filed.

In addition, the idea that you cannot re-open the line of duty or “I” number is equally false. When you are injured in the line of duty, under General Municipal Law 207-c, you are covered for life for the injuries suffered on the job. This is also the reason we are incredibly diligent in advising people to also file for Workers’ Compensation on all of their work-related injuries because Workers’ Compensation provides that equal level of protection for life. However, there is this idea that if you do not continuously use the I-number or if you let it sit dormant for awhile that it cannot be re-opened or used. This could not be further from the truth. Once again, the key is medical support and your doctor’s opinion. If there is a treating physician who believes that the need for treatment is still “causally related” to the original injury, then you are within your rights to use and go out on that I-number for that date of injury and treat under that date of injury in Workers’ Compensation. This does not mean that the Department or Triad will make it easy or will not controvert or fight it. However, in this instance, every member has a right to Medical Review to challenge the opinion of MAO or the police surgeons denying use of the line of duty number, and we have the right to pursue your claim in Workers’ Compensation as well. We have fought long and hard for these rights and contractual provisions, so do not allow yourself to be duped into believing that your line of duty status is actually closed or cancelled when it absolutely is not.

Of course, there are many more topics and questions that pop up constantly which we will address in future articles and updates. In the meantime, please take full advantage of our services and call us anytime at 516-941-4403 or 516-606-1616, or by email at mrada@fbrlaw.com. Until next time, please stay safe and healthy!