October 2020 Legal Report


To say that it has been a tough year on many fronts would be a total understatement.  From pandemics to protests to the general battles that members are always facing, 2020 will go down as probably the most trying year in most of our lives.  Coming in to any year, most people face the upcoming 365 days with optimism for growth and change, and this year was no different.  In fact, with ongoing contract issues and medical insurance rumors clogging the gossip mills, we heard for awhile that there may be an influx into the ranks of retirees as members with enough time would be ready to hang up their gun belts for greener pastures.  When COVID struck, it only became more of a likelihood.  With that as the back drop, we felt that it was important to remind members of many of the rights that they are may be entitled to as they go off into their well deserved retirement years.

For years we have been speaking about the fact that we believe that members have been working with the common misconception that if they did not receive a disability retirement on their way out the door that they may not be a good candidate for other benefits such as Social Security Disability.  That could not be more wrong.  Now, not every retired member that walks through our door will have a viable claim, but in general, the vast majority of retirees, especially those over the ages of 50 and 55, will have injuries and degenerative issues that are as a result of years of wear and tear on his or her body doing this very tough job.  However, Social Security Disability does not require the injury or disability to be related to any on the job accident or event.  So, if a member has years of wear and tear that would now prevent them from performing the job of police officer due to the rigors of the job, that member is likely an excellent candidate for SSDI benefits.  This especially true for members over 50 where the Social Security rules dictate that someone in that category becomes less likely to be retrained for other work in the national economy.

Right now, the typical member who becomes SSDI eligible is receiving roughly $3000 per month from Social Security.  That number is based on the amount of money paid into the Social Security system over your working years, but with most members reaching the Social Security contribution limit each year, our members are consistently near the top of the monthly check amounts that we see in our office.  As such, we help members get paid his or her Social Security checks as if they have already reached their full retirement ages of around 67 years old.  That amount is in addition to your pension amounts as well, so that is roughly an additional $36,000 on top of your pension.  Further, if that retired member has children under the age of 18, they may be entitled to an additional payment known as “auxiliary payments” which are an additional amount of roughly half the member’s check.  So, it is definitely something worth looking into as you reach the decision to retire.

Social Security requires a person to be disabled from all substantial gainful activity or work activities in order to be eligible for the benefit.  However, that rule does change as someone gets older and is unlikely to find a new career in the national economy, so in those cases, Social Security puts an added emphasis on the skills already mastered by someone who has a long work history and career that they have had for many years.  It is for this reason that members retired from this job can be such good candidates for this benefit.  The only reason, in our opinion, why someone would not look into this benefit would be because they have another job lined up for their post-retirement life.  In that case, we would definitely advocate for that retiree to work as long as they want and can, but that retiree should also consider the benefit they might be leaving on the table in the interim.

It has certainly become more difficult to win Social Security over the past two to three years however.  The government has tightened the rules that we would often use to win these benefits for members, but that window is far from closed.  The vast majority of cases that we handle are successful with many now having to be won at the hearing level before Social Security judges because of the most scrutinizing analysts being used on the application level.  The good news is that although some cases are taking longer than they would have a few years ago, the benefits are paid retroactively so often times the members are owed years of back money by Social Security when they are successful.  As always, every consultation with our office if free so there really is no reason for any retiree to not take advantage of evaluating their case or their situation unless they are planning on going back to work or simply want the government to keep that extra $36,000 every year until they turn 67.  It is also important for members to also remember that if their plan is to take Social Security at 62 then that “early retirement” benefit at that age comes with a 25% reduction which carries for the remainder of that person’s life.

As with any type of claim, there are deadlines.  With Social Security there are not the typical hard “statutes of limitations” that typically exist however.  Social Security is an insurance program, and thus, in order to be eligible, you must be insured to be covered.  What that means in the Social Security context is that in order to be paid SSDI, you typically must prove that you became disabled within 5 years of the last time that you paid into the system.  So, for retirees, that gives you a basic 5 year window within which to establish you became disabled.

Beyond Social Security Disability, members obviously also have the opportunities to pursue disability pensions after retirement as well.  For any on the job accidents or incidents, a member must file the application within 2 years of being removed from payroll or the effective date of the retirement.  The only exception to this would be in the case of disability pensions under the World Trade Center Presumption where members can request their pensions to be re-classified into World Trade Center Accidental Disability pensions even if they have been retired for well over 2 years.  In fact, in our office now we have several cases pending for members that have been retired for well over 10 years, but they are now suffering with the debilitating effects of their 9/11 disabilities.

As always, if you have any questions or thoughts, do not hesitate to contact us at 516-941-4403 or by e-mail at mrada@fbrlaw.com.  We are always available for the members to assist in whatever way that we can, and please keep in mind that these consultations are free, so there is no reason not to get the answers to the questions you may have.  Until next month, please stay safe and healthy!