November 2017 Legal Report

Legal Report by Milan Rada, Esq. with John Hewson, Esq. We have written many Legal Reports explaining and describing what constitutes an “accident” so as to qualify an injured police officer for the more generous pension of ¾ of final average salary, tax free for life as opposed to a performance of duty disability pension of ½ of final average salary, also tax free for life. We have not devoted any significant number of Legal Reports to the question of the degree of disability needed to qualify for a disability pension, whether ¾ or ½ since the disability requirements for both are the same.

A police officer is entitled to a disability pension if he (or she) is “Physically or mentally incapacitated for the performance of duty” (among other requirements). Here are autopsies of two (2) disability cases we handled to a successful conclusion. These are the actual medical facts and circumstances in each case with names withheld to protect privacy.

The first case was a claim for World Trade Center Accidental Disability Presumption, which provides that “. . . any condition or impairment of health . . . caused by a qualifying World Trade Center condition . . . shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident . . . unless the contrary be proved by competent evidence.” So, if as in this case, a member suffers metastatic esophageal cancer it is not necessary to prove causal relationship because cancer is a “qualifying medical condition” and therefore is presumed to be the result of participation in World Trade Center rescue, recovery or cleanup.

To prove the medical condition we submitted a SUNY World Trade Center Certification for malignant neoplasm of the esophagus, a PET Scan showing distal esophageal cancer and records from Memorial Hospital for Cancer & Allied Diseases, which included various objective medical tests documenting the existence of “moderately differentiated invasive adenocarcinoma.” Typically the Retirement System arranges for claimants applying for disability benefits to be examined by a physician of its choosing. However, the medical evidence marshaled on behalf of our client so convincingly established the condition and the disability that the Retirement System did not bother to get an opinion from its own medical consultant.

In another case, our client filed for Accidental Disability Retirement benefits stating that he was permanently disabled from performing the full duties of a police officer because of injuries to his neck and back. Because there is no presumption of causal connection between the disability and the injury, in this case, we had to prove not only that our client was permanently incapacitated from performing the full duties of a police officer but also causal relationship. In this case submitted medical evidence included records of treatment such as epidural steroid injections, a course of trigger point injections, strong pain meds and PT. An MRI of the cervical spine demonstrated very significant findings: reversal of the normal cervical lordosis (suggesting spasm); moderate central canal stenosis at C3-4 with compression of exiting C4 nerve roots (pressure on a nerve root causes pain); and, moderate central canal stenosis at C6-7 compressing exiting C7 nerve roots. An MRI of the lumbar spine showed: progressive multilevel degenerative disc disease with an L5-S1 small right paracentral disc protrusion;  L4-5 progressive left-sided disc herniation pressing upon the exiting left L5 nerve root; L3-4 diffuse degenerative bulging disc with moderate left foraminal stenosis; and, at L2-3 a left lateral disc protrusion compressing the exiting left L3 nerve root.

Additionally, this client underwent neck surgery: anterior cervical decompression via discectomy at C5-6 and C6-7 with partial corpectomy at both levels. Surgery included implants with anterior fixation using two (2) screws at each level and bone graft for fusion.

This client also had at least one (1) ER admission for severe pain of the lower back and an inpatient hospital stay for cervical and lumbosacral pain. On physical examination he had numbness of the left hand, pain with motion, i.e., bending, squatting, reaching and carrying. He had a paraspinal muscle spasm. An EEG was abnormal, showing bilateral pathology, representing either peripheral neuropathy or myelopathy. An NCV was also abnormal showing moderate to severe bilateral median neuropathy at his wrist along with C7 radiculopathy. Our client’s treating neurologist documented significant muscle spasm and radicular pain down the left arm.

An additional challenge, in this case, was the necessity to causally relate the current disability to the accident which occurred in 2002 and subsequent periods of full duty work. To accomplish this we obtained opinions on the question of causally related disability from our client’s treating neurologist as well as from a medical consultant we sent our client too. In this case, also, the Retirement System opted not to have our client examined by a medical specialist of its choosing.

No two disability cases are exactly alike. The medical evidence cited in this Legal Report is presented to give you an idea of how the Retirement System will look at and evaluate a case for severity and disability. Since pain is a subjective complaint and cannot really be proven directly, the Retirement System will look to indicators of severe pain to establish its existence: are pain meds being taken, if yes – name, dose, and frequency of use and prescribing doctor. If pain meds are not being taken then complaints of severe pain will be met with skepticism. Have there been PT and trigger point/steroid injections and how has the patient responded? Has there been continuous medical treatment? What objective tests (MRI, CT Scan, etc.) have been performed and what are the results? Have there been ER visits and inpatient treatment? Are work and activities of daily living consistent with complaints of severe pain? What is the opinion of the treating doctor(s)? It’s important to keep in mind that the Retirement System (or the Workers’ Compensation Board or the Social Security Administration) will carefully scrutinize the medical documentation for consistency in showing a severe and disabling impairment. Any inconsistency can and will be held against you.

Please do not hesitate to contact us with any questions or concerns regarding ¾ disability retirement, Workers’ Compensation, Social Security Disability, Personal Injury or Sec. 207-c cases. We welcome the opportunity to serve you, your families and friends. Milan Rada can be reached at (516) 941-4413 or mrada@fbrlaw.com.

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