October 2017 Legal Report

Legal Report by  Milan Rada, Esq. with John Hewson, Esq. With yet again another recent anniversary of the September 11th tragedy, it is an ever-present reminder of the aftermath of those attacks and the injuries, disabilities, and deaths that it has left behind.  From respiratory conditions to cancers, the number of conditions that the World Trade Center Health Monitoring Program evaluates, treats and certifies continues to expand.  Our goal has always been to make sure that the members whom we represent are always informed of their rights and protections under the various claims that we handle on their behalf.

The most important thing that any member can do to protect himself or herself is to timely file notice with both the New York State Police and Fire Retirement System as well as the Workers’ Compensation Board for participation in the rescue, recovery, or clean-up operations connected to the World Trade Center terrorist attacks.  The notice period has been extended on several occasions throughout the years, but you can’t be certain that the time period will be extended once again.  Currently, the notice period is open once again.  You must file a timely notice of your participation by September 11, 2018.  As we have stated several times in the past, if you are unsure whether you have submitted your notice to either of these agencies, please do not hesitate to file another one.  Without proper notice, you cannot avail yourself of the protections given under the World Trade Center Presumption Law for the purposes of an Accidental Disability Retirement or for Workers’ Compensation benefits. As we have also repeatedly emphasized, you do not need to be sick in order to file a notice of your participation in the rescue, recovery or cleoperationsations following the attacks on the World Trade Center.

On April 20, 2017, the PBA (and other Nassau police unions) entered into a Memorandum of Agreement with the Police Department regarding 9/11 injuries and illnesses, which will be granted Line of Duty status to those members affected by 9/11 certified illnesses.  As of that date, any member that meets the “qualifying conditions and eligibility requirements” of the WTC Presumption Law should request a line of duty number with the Department so that any future lost time attributable to those illnesses will be covered under the Line of Duty salary protection of General Municipal Law  Section 207-c.  This is particularly important for those members of the Department that were members of the NYPD or any other law enforcement agency on September 11, 2001, because these members would not have been covered under the Line of Duty protections afforded to Nassau County Police Department members on that date.  This MOA provides blanket protection for current members of the Department that, at the time of its signing, no other Department in the state had afforded its members and proved to be the basis for recent legislation that was signed into law by the Governor, providing the same protection for all other law enforcement personnel throughout the state.

WTC diseases and disabilities have been treated much more favorably by the Retirement System in recent years as compared to the past.  In the past, we found our cases were denied because the Retirement System used unreasonable medical opinions of doctors who examined and evaluated applicants on behalf of the Retirement System; then, after a denial the cases would be tried in front of Hearing Officers, appointed and employed by the Retirement System, who would simply affirm the underlining findings of the Retirement System itself.  Although these cases continue to be some of the most difficult and emotionally challenging cases that we handle, we have thankfully seen some softening on the part of the Retirement System in its evaluation of our arguments and positions. We recently had a member who had been retired for several years be approved for reclassification of his service pension to that of a WTC Presumption Disability (75%, tax free) pension on the basis of a WTC related condition that he was diagnosed with several years post-retirement.  Although the Retirement System attempted to downplay the severity of our client’s disability, the Retirement System considered and credited our arguments; ultimately the Retirement System had the member evaluated by a physician who specialized in our client’s medical condition and found our client to be permanently disabled from the full duties of a police officer, agreeing with the opinion of the treating physician in this case.  In years past, the Retirement System likely would have simply denied this claim and forced the member to spend thousands of dollars litigating his disability claim with no guarantee of approval.  In this instance, the Retirement System sent our client to four (4) IMEs and relied upon the last IME report in support of an approval of the application.  In another instance, the Retirement System has agreed to re-evaluate a denied claim pending at the hearing level because our office made an argument persuading the Retirement System that an incorrect standard was applied to the claim; the case has been sent back to the disability adjudication level for re-evaluation using the proper standard that we argued should apply to the claim. It is now possible that our client will get a fully favorable determination without the need to go through a very time consuming and expensive hearing process.

As with any disability matter, the key to these September 11 claims is proper documentation and support for the claim from medical professionals.  If any member believes that he or she has a condition that is potentially leading to the end of his or her career, getting under the care of a medical professional who can help treat and document the disability will be crucial to the successful outcome of the claim.  Further, despite the protection of the “presumption” that the disability has been caused by WTC exposure, we find that claims possessing  medical opinions that strongly connect the illness or injury to WTC exposure have the greatest chance in many instances to inhibit the ability of the Retirement System to rebut that “presumption”.

Keep in mind that September 11 disability claims with the Retirement System and the Workers’ Compensation Board can also encompass disabilities caused by post-traumatic stress disorder or psychological impairments.  Once again, if a member’s treating psychiatrist or psychologist believes that the member is permanently incapacitated from the full duties of his or her position due to a mental impairment and the member has properly documented his or her participation in the WTC rescue, recovery, or clean-up operations, that member can be entitled to a WTC Accidental Disability pension paying three-quarters of final average salary, tax free.

As always, it is our honor and privilege to represent police officers, their families and friends in any legal matters that might arise. The greatest compliment and recognition we can receive is the referral of a client. If you have any questions , concerns or suggestions contact us anytime at 516-941-4403 or by e-mail at mrada@fbrlaw.com.

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