Another Reminder That Initial Injury Reports Matter, Do Them Properly!

ANOTHER REMINDER THAT INITIAL INJURY REPORTS MATTER, DO THEM PROPERLY!

By: Sean Riordan, Esq.

Each and every time that I speak to union members throughout New York I harp on the importance of properly filling out the initial injury reports following an on-the-job occurrence. Recently a member said to me that they had “heard me give this speech a hundred times” to which I replied, “it’s as true today as it was the first time you heard it.” Helping me prove my point, just last month the Appellate Division again affirmed the tantamount importance of a Correction Officer’s initial injury report in the case of Hernandez v. New York City Employees’ Retirement System (“NYCERS”). While the lesson may be old and repetitive, it bears repeating.

In Hernandez v. NYCERS a NYC Correction Officer claimed to have been injured when an “inmate pushed her.” Ordinarily, this “act of an inmate” is sufficient to qualify a Correction Officer for a three-quarters (3/4’s) disability pension. However, as we have seen many times, NYCERS denied the Officer’s ¾’s application because the “contemporaneous documentation”, i.e. the initial injury reports, did not mention that the officer had been pushed by the inmate. The Court specifically wrote:

“Contrary to the [officer’s] contention, [NYCERS] was not required, as a matter of law, to credit her testimony that her injury occurred when she was pushed by an inmate. Indeed, her testimony conflicted with the account of the accident that was given in written reports that were prepared in connection with the incident. Inconsistencies between a petitioner’s sworn testimony and written documents present a credibility issue for the factfinder to resolve.”

Put plainly, this means that NYCERS does not have to accept as truthful a later, not previously documented description of how an injury occurred. It also means that the Court gives NYCERS extreme deference in determining which version of events they choose to believe, the initial injury report descriptions or a subsequent description of the occurrence. It is no secret which of these two choices NYCERS will choose. In fact, the NYCERS Summary Plan description for NYC Correction Officers explicitly states:

The NYCERS Medical Board and Board of Trustees are likely to believe that disability reports filed as soon as possible after an accident or other event have greater credibility than reports filed after a delay.”

Importantly, the credibility that NYCERS gives these reports is not contained to the inmate’s actions, but also to injury sites. NYCERS will look to these initial injury reports to determine what was injured during the inmate occurrence. If the initial reports do not contain the injury site that now disables you, NYCERS will not consider the injury related to the occurrence. Far too often officers feel extreme pain in one area of their body following an occurrence and only “minor” pain in others. Although the officer fully documents the area that is causing them a lot of immediate pain, they fail to include these other “minor” areas in their reports. Unfortunately, these other “minor injuries” frequently become more severe over time but NYCERS will not consider them related to the occurrence because they were not documented at the time of the injury.

Hernandez also makes clear that the “action” of an inmate is important when determining if an officer qualifies for ¾’s. The Court stated that “the mere fact that the [officer] was injured while she was in the presence of an inmate, or while she was engaged in providing a service for the benefit of an inmate, is insufficient” to qualify for ¾’s coverage. The courts have held that an inmate must perform an “affirmative act” that leads to an officer’s injury in order for coverage to apply.

Two simple rules emerge from the Hernandez case and other cases like it:

1) If an inmate was involved in your injury, fully document what action the inmate took that led to your injury. Fully describe what the inmate did that caused you harm;

2) Take a physical inventory or your body following an occurrence and document each and every body part that hurts in the initial paperwork, don’t overlook an injury site simply because you believe it is “minor.” If it hurts, put it down.

Lastly, if you fail to fully describe how the inmate caused your injury, or failed to put an injury site down on the initial injury report, you can and should use your filings with the NYS Workers’ Compensation Board to correct the record. Understandably, immediately after an injury officers are consumed by the pain they are feeling and/or are anxious about the events that just transpired. This can lead to mistakes/omissions in the initial injury report filled out for the Department. This is why filing your NYS Workers’ Compensation Forms as soon as possible after an occurrence is so important. If filed immediately after an injury, these reports can also be viewed as “contemporaneous documentation” of an event or injury. Use these forms to also fully explain the events that led to your injury and any additional sites of injury which you may have neglected to put down on the initial reports.

As always, if you have any problems, issues, concerns or questions I am always here to discuss the case with you. You can reach me any time at (212) 612-3198 or Sean@nycomplaw.com

Stay Safe!

 

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Information for Tier 4 NYC Workers

Most employees of the City of New York are members of the New York City Employees’ Retirement System, or “NYCERS”. Most workers think of NYCERS in terms of their “Service Retirement”, when they have enough years of credited service and are the necessary age to retire from their positions. However, there is a special retirement benefit available to those that can no longer perform their full duty position as a result of an injury or illness. This “Disability Pension” is an economic life saver for many injured workers, allowing them to meet their financial obligations while facing the debilitating nature of their injury/illness. Read below for information concerning information on Tier 4 eligibility for New York City workers.

When is a Disability Retirement Available?
Disability Retirement is available to workers that that can no longer perform the full duties required of their specific title. This legal standard means that you must no longer be able to perform your job, it does not require that you be disabled from all jobs in the United States like Social Security Disability. If you, and your treating doctors, believe that your injury/illness will not allow you to return to your previous work an application for Disability Retirement should be filed.

When Should I file a Disability Retirement Application?
The Retirement & Social Security Law has various filing deadlines for disability retirement depending on the pension “Tier” the member has been assigned. Tiers are determined based on one’s original membership date with NYCERS. Although the law sets guidelines on the latest date a member can apply for a disability pension, the basic rule of thumb is that an injured worker should apply for a disability pension as soon as they and their physician determine that they are no longer able to return to their prior work, but not later than 6 months after an injured worker has been absent from work on an approved medical leave.
The need for early application in disability cases emanates from the New York State Civil Service Law (“CSL”). Section 71 of the CSL allows a municipality to “medically separate” (a nice phrase for “terminate”) an employee who has been out of work for 1 year due to a workers’ compensation injury/illness. Section 73 of the CSL allows for the medical separation of an employee when they have been out of work for that same 1 year period. This means, as soon as you miss one day of work due to an injury or illness the one year clock for return or termination begins to run. The NYCERS disability process generally takes approximately 6 months to fully adjudicate a disability application and render a decision. Therefore, in order to avoid medical separation and possible interruption of medical insurance coverage and other benefits, it is in a workers’ best interest to file as early as possible.

Statute of Limitations for filing Disability Pension Applications Tier 4 Members:
Within 3 Mons of the date a member was last paid on payroll; OR
Within 12 Mons of when the member received notification that their employment has been terminated as long as the member was on an employer approved medical leave of absence immediately prior to termination.

Do I need a Specific amount of Credited Service Time with NYCERS in order to apply for a Disability Retirement?
No, any member can apply for a disability retirement benefit if they are permanently incapacitated from the full duties of their employment. However, if a member has less than 10 years of Credited Service with NYCERS the member must establish that their injury directly results from a “legal accident.” A legal accident varies greatly from what we would generally call an “accident” in ordinary conversation and adds greater burden in establishing entitlement to this benefit.

How Does NYCERS determine if I am Disabled?
NYCERS has established a “Medical Board” to hear each application for disability retirement. This three doctor panel is charged with reviewing all the evidence a member submits in support of their claim for benefits and is also required to psychically examine the injured/ill worker. Once examined, the Medical Board will “recommend” to the NYCERS governing body, the Board of Trustees, whether to approve or deny your claim. By law the Board of Trustees cannot overturn the Medical Boards determination regarding a members fitness for duty, but must make its own determination on issues regarding the “accidental” nature of your injury and “causal relationship”, that is, whether your injury was caused by the specific accident alleged in the application.

If I am Approved, What Benefit Will I Receive from NYCERS?
Your benefit amount depends on your Tier and the benefit a member applies for.
The benefits amounts are:
Tier 4 Members Applying for Article 15, Section 605 Benefits:
1/3 of a Members Final Average Salary; OR
1/60th of a Members Final Average Salary multiplied by the Members Credited Service Time

NOTE – Tier 4 members DO NOT HAVE ¾’s Disability Pensions. Only NYC uniformed personnel have such a benefit.

If I am Approved, Will I Receive Medical Benefits from NYCERS?
Technically, the answer is No because NYCERS does not administer medical benefit coverage. Instead, medical benefit coverage is a contractual issue. Rest assured, almost all contracts today treat disability retirees the same way as “service retirees” and provide the same medical coverage in both situations.

Can I Work in Another Job as a Disability Retirement Recipient?
Yes, however you will be subject to income limitations which change annually. Whenever you decide to take new employment you should contact NYCERS to find out the current income limitation.

Can I Receive a Disability Pension, Social Security Disability and NYS Workers Compensation together, without offset?
Yes, Tier 4 Disability Pension benefits are not offset by the receipt of either SSD or NYS Workers’ Compensation and a member can receive all 3 benefits payments under the law.