November 2020 Legal Report


There are topics that we repeatedly write about in the Legal Report, and there is a very good reason for this.  When we see many of the same mistakes or issues over and over again, it becomes apparent that these become the topics worth reminding the members about, so they can avoid these issues in the future.  Probably the biggest one that comes to mind is the description of injury statements and how they can affect claims in the future.  As we have written about numerous times, these accident reports and statements are often the biggest factor between a member getting a 75% (3/4) Accidental Disability pension or not.

The only difference between a 3/4 Accidental Disability Retirement and a Performance of Duty Disability retirement worth 50% is whether the officer was injured because of an “accident” or an “incident”.  In both cases, assume the member is permanently disabled from the full duties of the job, and the severity of the disability is not an issue in the case.  In fact, a member can have a much more severe disability with greater limitations and end up with the 50% Performance of Duty Disability retirement instead of the 3/4 Accidental Disability retirement based purely on how the injury occurred.  Therefore, any member that is injured while performing police duties must take the greatest care in how the accident description is written because the results of a poorly or incorrectly or insufficiently accident description can be dramatic.

Cases have come before the Retirement System and the Third Appellate Department on appeal for years on exactly this issue.  Over and over again, the Court has held that the initial injury report will invariably hold greater weight than a subsequent version of the events, even if reasonable, simply because the initial report is the most contemporaneous and timely report of the injury in question.  As such, a very simple and mundane writing of an accident description in the middle of the night after getting hurt will set in motion a series of events that cannot be rectified or fixed, and the financial impact will be felt for the rest of a member’s life if (s)he  misses out on the proper disability pension to which (s)he would otherwise have been entitled.  The question always is how to best protect yourself in this situation.

From our perspective, all members have at their disposal all the resources needed to avoid pitfalls when confronted with the requirement of writing an accurate and complete accident description..  Every member of the PBA always has the resources needed to best protect these situations from occurring on the job.  For starters, when and if you suffer an injury on the job, make sure that you inform your representatives of the event.  This means that you should tell a PBA delegate or trustee so that they can assist in making sure all of the paperwork and documents are completed timely and accurately to best support and protect the member.  In addition, as the disability attorneys for the PBA since 1988, we are the best positioned resource to which each member can turn for assistance to protect all of your cases. All line of duty injuries will involve timely completion of an accident/incident report, consideration of Sect. 207-c requirements, timely completion of Workers’ Compensation paperwork and filing the claim, timely prosecuting a “third party” lawsuit (i.e., suing a negligent party who is not employed the Police Department) and handling all appeals if the Department should contest your line of duty injury in any way; down the road there may be a viable claim for Social Security disability benefits if the injury should keep you out of work for a continuous period of 12 months. Obviously this number of claims can present a significant challenge, which is far better met if all the claims are placed with one (1) law firm.  In addition, your delegates and trustees have our direct office and personal cell numbers to help with any questions that arise during the claims process.  Therefore, there is no reason that when an injury occurs that the most accurate description of the event is  placed into the Accident/Incident Statement.

Also, please keep in mind that the Department Manual allows for up to seven (7) days to report the injury and complete the statement.  We have always advocated that members take their time before completing the statement and submitting it to the Department.  The same goes for the description given to the Investigating Supervisor as well.  To the extent possible, our goal always is to make sure that even that statement matches up to the most accurate description of how the injury occurred.  Of course, this requires some collaboration and understanding from the bosses on the job, but if not done in a rushed manner, we believe that the best levels of protection for the member can be achieved in just about every circumstance.

Please also keep in mind that most injuries do not happen as a result of “accidents” on the job anymore.  The Retirement System and the state have stripped the definition of the term of “accident” with every year that passes.  The statute has never changed so naturally this has occurred in the case law and years of what we believe are bad sets of facts being brought up on appeal.  As such, there are many instances where we assist in the statement process, but even despite our years of experience on these cases, there simply is not a way to make the event become an “accident”.  That may be the goal of the state at this point in time to strip this benefit down further and further, but that means the importance of making sure the truly “unexpected” and “out of the ordinary” events that cause injuries are written up the correct way to avoid problems.

The bottom line is that any member who gets hurt and does not inform their representatives, their delegates, their trustees, or the union, is taking a major risk with their future benefits.  The amount of people that we have seen over the years who come in to discuss cases for the first time with poorly written accident reports is always growing.  And from our point of view, they are our toughest conversations to have.  We will hear them lament that “they didn’t know what to write” or “weren’t told to speak to anyone” or “my boss told me to do the paperwork right away”.  All of those problems can be completely avoided.  Our goal and the PBA’s goal is to look out for the wellbeing of the member, and we promise to always do that if we are brought into the process and put in a position to protect you and your families and the benefits to which you are entitled!

Our office has over three decades of experience handling exactly these types of cases and situations.  When it comes to this area of the law, our firm has been on the frontlines fighting for your benefits and litigating these cases for years.  If we have the opportunity to protect a member, we take that responsibility incredibly seriously and have been privileged and honored to represent the PBA since 1988.  When it comes to this area of the law, we are not learning on the fly or just starting out and learning on your cases.  As we have jokingly said, if it’s happened on the job, we’ve probably seen it at some point.  So, use us as a resource to protect you and your fellow members.

As always, please stay safe out there in these trying times.  We wish you and your families a very Happy Thanksgiving.  And we can always be reached for any questions or concerns at 516-941-4403 or by e-mail at mrada@fbrlaw.com.