Police Disability Pension

2019 Police Disability Pensions Year-in-Review

By: Sean Patrick Riordan, Esq.

2019 was a relatively slow year for Police Disability pensions, especially when compared to 2018 which brought the groundbreaking Kelly v. DiNapoli decision. The Appellate Division decisions didn’t break new precedential ground, but they did continue to illuminate what is, and will be, considered an “accident” for ¾’s purposes. They also continued to highlight two important areas of every disability application: 1) Contemporaneous Documentation of an injury is vitally important and 2) Officers are not “in service” for disability pension purposes until they start their shift or otherwise are performing their police duties.

Even more importantly, and in keeping with my theory that Kelly v. DiNapoli opened up “slip & fall” to greater ¾’s consideration, the Court found that unseen and unknown hazards that cause a slip and fall injury can be ¾’s eligible.

Accidental Nature of Injuries Cases:

The Appellate Division 3rd Department’s first case of 2019, Buckshaw v. DiNapoli, dealt with multiple accidental issues. The Police Officer testified that while he was restraining an EDP the carpet suddenly shifted under his feet due to poor installation. As a result, he fell and severely injured his leg. However, the officer’s contemporaneous documentation, and that of his fellow officer, told a different story. The incident and injury report noted that the Officer’s legs became entangled with the EDP’s, causing him to fall and become injured. The fellow officer’s report also stated these facts as the cause of his injury. Although the Court interestingly noted that the Officer’s testimony would have constituted an accident, his contemporaneous documentation did not. Instead, the restraint of an unruly individual is an “inherent risk” of a Police Officer’s duties and therefore not an “accident” for ¾’s purposes.

In Selke v. NYS Comptroller a Trooper was found not to have sustained an “accident” when he injured his back while securing a spare tire in the truck of his police vehicle. The Court found, and the Trooper had testified to, that the securing of a tire was a “routine duty” and injury incurred during such duties cannot be considered an “accident.”

In one of the more important cases of the year, Angelino v. NYS Comptroller, the Court found that although the Police Officer did not sustain an “accident” for ¾’s purposes the Retirement System must remand the case because their doctor failed to review all relevant medical testing. This is yet another case where the Officer’s testimony differed from his initial injury reports and the Court found that the Retirement System is free to give more weight to the contemporaneous documentation than the later testimony.

More importantly the Court found that the Retirement System’s Independent Medical Examiner (IME) failed to review an EMG that the Officer had undergone. The Officer’s treating doctor relied on this EMG as a basis for his finding that the Officer is permanently incapacitated. Because the Retirement System can only rely upon the opinion of its IME when such IME performs a physical examination and “reviews all relevant documentation”, the Court found that the IME’s opinion was lacking because he failed to review the single EMG report. This case represents a real procedural victory for Police Officers and will be relied on heavily by attorneys.

In the “slip and fall” case referenced above, Lewis v. NYS Comptroller, an officer reported to a motor vehicle accident after 5 inches of snow had fallen and had yet to be plowed. After his arrival on the scene 2 additional car accidents transpired. While walking over to the site of the 3rd accident applicant stepped into a snow covered pothole, calling and severely injuring himself. The Court found that the pothole represented an unseen and unknown hazard and was therefore an “unexpected and unanticipated” accident.

The State’s attorney also raised the issue of contemporaneous documentation in the Lewis case, noting that the initial injury report did not include any statement of a “pothole.” Importantly, the Court found that additional details regarding an accident are not, in and of themselves, contradictory of initial reports. Only where the additional facts contradict earlier statements does an issue of credibility arise. Further, the Court pointed out that the Officer may not have initially known that he stepped into a pothole since it was covered by snow. In this regard, the Court’s finding is extremely important; an Officer can add additional relevant facts to their disability applications as long as such additional facts do not undermine what was originally written.

“In Service” Cases:

The issue of whether an Officer is “in service” for disability pension cases arises several times a year (believe it or not). Although the rule associated with “in service” is long standing, 2 Appellate Division cases reiterated the point this year, Verille v. Gardner and Rosario v. NYS Comptroller.

In Verille, the Officer testified that he left his office before the end of his shift because he was headed to speak to a Confidential Informant. Further, the Officer alleged that the CI was related to an internal affairs investigation and, as a result, he did not inform anyone where he was going, nor did he complete any reports or write any notes about where he was heading. While heading to this alleged meeting the Officer was involved in an MVA and seriously injured. The Retirement System denied his application stating that the Officer was simply heading home and was no longer “in service” at the time of his injury. The Court upheld the determination, finding that the Officer bears the burden of proof in a disability retirement case and was unable to offer any proof that he was going to meet the CI. The moral of this story is, always let at least one person know where you are going!

In Rosario the Officer alleged that he was injured in the course of his duties while walking on Police Department property. During his testimony the Officer stated that he slipped and fell while walking into the precinct before the start of his shift. The Court upheld the System’s denial on the ground that an officer is not “in service” until they start their tour of duty or are otherwise engaged in police duties. Moral of this case is, if you are inured prior, or after, your tour of duty, make sure you specifically note how and why you should be considered to be engaging in police activity in your initial injury report.

Permanent Incapacity Cases:

Although I do not usually address permanent incapacity cases in these updates because they typically boil down to which doctor the judge believed, the Appellate Division decision in McGowan v. DiNapoli is significant for several reasons.

McGowan was a Deputy Chief of a department who applied for disability retirement and simultaneously took his service retirement. Upon retirement McGowan took a job as a government contractor, conducting back ground checks. The Retirement System’s IME stated that McGowan should be considered disabled from his Deputy Chief position only if such position required hands on police work such as arrests and field work. However, the IME stated that if the Deputy Chief position was largely sedentary, like his government contractor work, then he should not be considered disabled. The Retirement System denied the application, finding that McGowan’s Deputy Chief position was sedentary in nature.

The Court upheld the determination denying disability benefits, agreeing that McGowan’s position could be considered sedentary because he had not engaged in “regular performance of police duties, including arrests, within the year prior to his retirement.”

This case is a bit disturbing as there is no statutory or regulatory basis regarding the “1 year before retirement” that the Court references. It appears that this new standard was created out of thin air.

Just as importantly, and something that I discuss with Officers all the time, what an officer does for employment can affect their disability retirement. Here, the IME clearly found that the post-retirement work being performed by McGowan was to similar (in terms of physical demand) to his prior work. Officers should always consider this if they are planning on starting new employment while their disability pensions are pending.

Conclusion:

As always, if you have any questions or concerns regarding your Police Disability Pension, or are injured in the course of your duties, do not hesitate to contact me at (212) 612-3198 or email me at Sean@nycomplaw.com.

Be well and be safe!

2019 Workers' Compensation Trends

2019 Workers’ Compensation in Review

2019 Trends in Workers' Compensation

As 2019 comes to end it is important to look back and understand the popular trends in the Workers’ Compensation industry and look forward to what 2020 could hold. As a constantly evolving industry, it is important to stay up to date on the current atmosphere of workers’ compensation in order for our attorneys to do their job best for our clients.

One major and essential practice was monitoring programs for prescription drugs. Almost all 50 states have implemented new data bases and regulations when prescribing opioids. Doctors are now handling injuries with more precaution and are prescribing workers’ compensation patients with physical therapy and other non-habit forming remedies before resorting to opioids. Many states have seen a significant reduction in opioid related deaths and have passed official legislative rulings to maintain this reduction in opioid abuse.

In addition to reducing opioid prescriptions, states are mandating electronic prescribing of controlled substances. While New York has implemented this for both controlled and non-controlled substances since 2016, many states are following their lead in an effort to better control the prescription of controlled substances. By removing the use of paper and faxed prescriptions providers can regulate and supervise claimants’ recovery plans.

Another welcomed trend was increasing coverage for our first responders.  States recognized that the risks and hazards first responders face are above most average positions. Many states have permitted first responders to file workers’ compensation claims for exposure to dangerous substances that have led to the development of cancer and other serious illnesses and post-traumatic stress disorder from traumatic events encountered while on the job. This is a great step in providing our first responders with the rights they deserve.

What trends can we expect in 2020?

In looking forward to 2020, experts expect to see states follow and mimic New York’s compensation drug formulary as a guideline for new legislation. This process requires doctors to get pre-authorization and sufficient documentation on why opioids prescriptions are needed for treatment. Another trend to look for in 2020 is Medical Marijuana prescribed over opioids. While many are looking for better alternatives than opioids for treating pain, New Hampshire Supreme Court ruled in favor of an injured worker using medical marijuana to help treat their injuries. With New York’s compensation drug formulary it may prove difficult to get such prescriptions authorized by the carriers.

The attorneys at McIntyre, Donohue, Accardi, Salmonson & Riordan are committed to staying up to date on the latest Workers’ Compensation trends to best serve our clients’ needs. Our firm strives to provide aggressive representation combined with creative legal solutions to protect injured workers against those that would deprive them of their legal rights. If you have any questions, please call our office at 866-557-7500.

https://www.iwpharmacy.com/blog/looking-back-at-2019-workers-compensation-legislative-trends

First Respnoders at Ground Zero

Exposure at Ground Zero and Aggressive Prostate Cancer Linked?

Here at McIntyre, Donohue, Accardi, Salmonson, & Riordan we have had the distinct honor of representing many first responders who heeded the call of duty on September 11, 2001 in obtaining Workers’ Compensation, Social Security Disability, and/or Accidental Disability benefits associated with their service.

One of these claimants was a Suffolk County Police Officer of the Motorcycle Unit assigned to various World Trade Center sites including Ground Zero. It was during this period that he was exposed to toxic debris and carcinogens for 11 hours at a time without any respiratory protection. This brave officer was subsequently diagnosed with a nearly fatal prostate cancer 17 years later that was deemed related to his earlier exposure at Ground Zero.

Unfortunately, our claimant is not alone in his diagnosis. There is a growing body of evidence which suggests that there may be a link between an increased risk of aggressive prostate cancer and exposure to the fallout from September, 11 2001 as documented by the writer Janet Farrar Worthington:

“’The dust was an inflammatory insult to the body,’ says medical oncologist William Oh, M.D., of the Icahn School of Medicine at Mount Sinai in New York.  Oh and Mount Sinai epidemiologist Emanuela Taioli, M.D., Ph.D., recently published a study in Molecular Cancer Research showing that one of the inflammatory responses within the prostate was an increase in an inflammatory T cell, called Th-17, in men exposed to the toxic dust.

Oh believes that exposure to the toxins ‘increased the inflammatory cascade within the prostate, and this may have contributed to the risk of developing more aggressive prostate cancer,’ particularly in first responders and volunteers who spent a lot of time searching for victims in the rubble.”

This research only highlights the absolute necessity for all first responders to follow up with their physicians on a regular basis to ensure their health and safety.

Additionally, if you or a loved one qualify as a first responder suffering from a similar 9/11- related illness, you may be entitled to compensation. Please contact our office at (866) 557-7500 or visit our website to schedule a free consultation.

Shane L. Farrell

Associate Attorney

shane@licomplaw.com

Janet Farrar Worthington, Ground Zero and Prostate Cancer Prostate Cancer Foundation, (September 11, 2019) https://www.pcf.org/c/ground-zero-and-prostate-cancer/.

New York’s Medical Marijuana

New York’s Medical Marijuana Outlook

New York’s Medical Marijuana program has provided doctors with a new tool to help claimant’s deal with debilitating pain. Nevertheless, the legality of the treatment option does not mean that Workers’ Compensation carriers will accept paying for it.  The question then turns to whether the Workers’ Compensation Board will authorize that treatment over the objection of the carrier.

Legally speaking, the New York Workers’ Compensation Board has expressly noted that they have the authority to compel a New York State Workers’ Compensation carrier to pay for medical marijuana under the liberal construction of WCL § 13(a). Whether the Board finds that a doctor’s request meets the threshold to trigger that action is another matter. The Board has made it clear that a treating provider that requests the use of medical marijuana must satisfy a number of prerequisites before a finding is made that the treatment is appropriate.

The first hurdle for patients is to seek out a medical provider specifically licensed and registered by the Department of Health to prescribe medical marijuana. The provider then must certify that their patient has one of the qualifying conditions under the Public Health Law.

New York’s Public Health Law permits the use of medical marijuana to be recommended to treat severely debilitating or life threatening conditions such as cancer, HIV, ALS, Parkinson’s disease, spinal cord injury with spasticity, epilepsy, inflammatory bowel disease, neuropathy, and Huntington’s disease (see Public Health Law § 3360[7]). The regulation also allows for the use of medical marijuana to treat severely debilitating pain as an alternative to opioids use as long as the underlying condition is expressly noted on the patient’s medical marijuana certification. To complicate matters further, the patient must also have an associated condition: cachexia or wasting syndrome, severe or chronic pain, severe nausea, seizures, or severe or persistent muscle spasms (see Public Health Law § 3360[7][ii]; 10 NYCRR 1004.2[a][9]).

If the treating provider finds that the claimant does qualify for the use of medical marijuana, the next step is getting it authorized by the carrier. Provider’s must adhere to the New York State medical treatment guidelines when seeking a specific treatment option. If that option is not covered by the guidelines, the doctor must then file a MG-2.0 variance form specifically noting that the patient/claimant adheres to the use of medical marijuana and explain why treatment options covered by the guidelines are not appropriate or sufficient. The doctor must also provide proof of his registration to prescribe medical marijuana as well as a copy of the claimant’s certification to legally obtain medical marijuana in New York. Only then will the Board consider the merits of the doctor’s request.

Unfortunately for injured workers in New York, carriers have been overwhelmingly successful in overturning Law Judges’ decisions to approve the use of Medical Marijuana on appeal. That does not mean it is impossible to obtain approval for medical marijuana, but only that any request by a doctor must precisely adhere to the Board requirements if they expect the Board to authorize the treatment over the objection of the carrier.

In the event you are seeking the use of medical marijuana as a treatment option in your claim, consult with an experienced Workers’ Compensation attorney to help navigate this process.

Timothy Finnegan

Associate Attorney

Suffolk County PD – Heart Attack in the Line of Duty

It is now widely recognized that cardiovascular issues are nearly 1.7 times higher amongst police officers when compared to the general population [1]. These “heart” issues may vary in severity from mild hypertension to a fatal stroke and can be found in officers of all ages. [2]

Therefore, it becomes vitally important for all Suffolk County police officers to be aware of what may be available to them by way of Worker’s Compensation benefits, and NY General Municipal Law (GML) 207-c benefits, should they sustain a cardiac injury while in the line of duty. These are two distinct legal remedies that may be available to an officer under particular circumstances. They are not the same, and should not be treated as such:

Workers Compensation:

Worker’s Compensation is essentially an insurance required for nearly all employees in New York State including Suffolk County police officers. This insurance provides medical coverage and partial monetary compensation for injuries sustained as a result of their employment. The medical coverage extends only to the job-related injury, and the monetary amount for each officer is determined by the date of the injury in question, and the injured officer’s average weekly wage at that time. Essentially in order for a police officer to successfully obtain Worker’s Compensation benefits for a cardiovascular condition, he must provide medical evidence from his treating physician which shows how it relates to his/her employment.

In Employer: City of Schenectady, a police officer suffered a heart attack while at home after coming back from a strenuous training program required by his department. This officer was able to get Worker’s Compensation benefits because the medical experts agreed that the stress of his job duties as a police officer played a role in causing the heart attack, “It would be certainly appropriate to conclude that his severe job stresses that were present immediately prior to his myocardial infarction would have been a significant contributing factor to this event.” The officer had shown how his heart attack was due, at least in part, to his employment as an officer. Thus, he was able to obtain Workers’ compensation benefits.

GML § 207-c

GML § 207-c provides for the payment of an officer’s full salary and the cost of all medical treatment and hospital care for an individual injured or taken ill as the result of the performance of his/her job duties. This extends to medical bills that are not even part of the injury which the officer sustains in the line of duty.  Under the current standard, an employee is eligible for the benefit as long as they have an injury while in the performance of or takes ill as a result of, any duty within the range of their duties. The focus here is what duty a police officer is engaged in when the cardiac injury occurs. The injury must emanate from the officer’s performance while in the line of duty for GML 207-c to qualify. Therefore, an officer may sometimes be entitled to both GML 207-c and Worker’s Compensation benefits, but not always.

The application of these benefits can best be understood using the following example:

A police officer has a stroke while subduing a criminal who attempted to assault that officer. The officer’s treating physician cites the strenuous activity of restraining the criminal as the contributing factor which caused the heart attack. This stroke was caused by the officer’s employment with the police department, and it emanated from the performance of his duties. Therefore, he would also be entitled to benefits under GML 207-c.

However, if the heart attack occurred once the officer was off duty then that officer may only be entitled to Worker’s Compensation benefits because it did not occur during the performance of his duties.

In the event that an officer receives both Worker’s Compensation and GML  207-c benefits there are some nuances to keep in mind:

  • The Department may be entitled to reimbursement of the salary paid under GML 207-c from the Worker’s Compensation claim associated with the cardiovascular injury.
  • If an officer is receiving Worker’s Compensation benefits associated with the cardiovascular injury the Department is only obligated to pay the difference in salary if GML 207-c applies.
  • GML 207-c would cover all medical expenses not associated with the Worker’s Compensation claim.

Please follow up with your treating physician if you feel that your work as a police officer is contributing to a cardiovascular problem. Given the increased risks of cardiovascular issues posed to all officers, we would encourage you to make sure that you are well versed in these benefits should the worst occur. Feel free to contact our office at 631-665-0609 if you would like to learn more.

[1] Zimmerman FH Cardiol Rev. 2012 Jul-Aug; 20(4):159-66.

[2] Id.

NY's Raise the Age Law Crossroads Detention Center

NY’s Raise the Age Law Creates Obstacles

NY’s Raise the Age Law progressed to its’ next phase on October 1st by raising the age of adult criminal responsibility to 18 years old. This means that the juvenile detention system will be taking on 17 year olds who have potentially committed dangerous crimes.

Previously, 16 and 17 year olds facing felony charges were tried at criminal court and were sent to Rikers. With this new law they will be processed through family court and new youth courts and be sent to Crossroads detention center run by the Administration for Children’s Services (ACS) or the Horizon juvenile center, run by the Correction Department.

After the first phase of Raise the Age centers saw a rise of assault on staff members and more than 25% rise in contraband, including weapons and illegal substances. David Hansell, ACS chief believes that the rise in contraband is in part due to their increased supervision in hopes to avoid violent situations that could occur due to weapons and illegal drugs.

ACS has plans to implement a new behavior management plan that rewards good behavior with perks such as more phone time. The Administration for Children’s Services will also be assuming management over the Horizon juvenile center, with plans to implement these new behavior tactics.

Another issue, one not expected, was overcrowding at ACS’s Nicholas Scoppetta Children’s Center as teens were sent there for housing needs and not detention as their families refused to take them back in.

Officials have been preparing for a year for this shift but still worry about potentially violent 16 & 17 year olds in less-restrictive environments and what that could mean for the safety of staff and other children in the facilities.

Sean Riordan Honored by NYCD Emerald Society

Sean Riordan Honored by NYCD Emerald Society

MDASR Partner Sean Riordan was honored by the New York City Correction Department Emerald Society as 2019 Honorary Member of the Year. Sean is an outspoken advocate for First Responders, having joined with advocacy groups and Congressional leaders to help pass legislation that affords greater health care and benefits to men and women that respond to emergency situations. Mr. Riordan is also very involved in the Irish-American community. As Past-President of the Nassau County Brehon Law Society, Board Member of the NYC Brehon Law Society and a member of The Society of the Friendly Sons of St. Patrick of Long Island, Sean has been an advocate for human and civil rights in Northern Ireland and a proponent of the continued peace process. We are proud of Sean’s commitment to fighting for the rights of injured workers in need.

Nassau COBA

Nassau COBA Retains MDASR as Disability Counsel

On Wednesday, September 25, 2019 Nassau COBA‘s Board of Governors unanimously voted to retain Sean Riordan and the Law Firm of McIntyre, Donohue, Accardi, Salmonson & Riordan to act as disability counsel for Nassau Corrections Officer Benevolent Association.

MDASR has represented Nassau COBA members in their claims for Workers’ Compensation, Disability Pensions, and Social Security Disability benefits for well over a decade. Over the years we have worked hand-in-hand with Nassau COBA to create a “visitors ¾ bill”, successfully opposed unfair Workers’ Compensation law changes and lobbied for additional benefits for 9/11 First Responders. During this partnership MDASR has been at the forefront of litigation that has expanded the parameters of coverage for Officers claiming ¾ injuries under 607-C of the Retirement & Social Security Law and has created legal precedent which helps Correction Officers throughout the State of New York.

Effective October 1, 2019, as Disability Counsel MDASR will:

  • Waive representation fee ($2,000 savings) for Nassau COBA members for on-the-job occurrences that have a NYS Workers’ Compensation claim
  • Waive representation fee ($2,000 savings) for COBA members who have a permanent injury or illness unrelated to their employment.
  • Help draft and lobby disability legislation on the federal, state and local levels.
  • Provide COBA members 24-Hour Access to an MDASR attorney in the event of an emergency related to the injury of a member.
  • Provide Nassau COBA members free disability consultations.

MDASR looks forward to working with Nassau COBA and providing them with Workers’ Compensation, Social Security Disability and Disability Pension representation.

2019 African Union Day

MDASR Sponsors African Union Day Celebration

MDASR was proud to sponsor and attend the African Union Day Celebration held at Mercy College on September 9th. The event marked the inaugural “Daylight of Africa” celebration and was dedicated to Captain Mbaye Diagne of Senegal and US Soldier Private Emmanual Mensah of Ghana for their exemplary leadership and sacrifices. The African Union Day Foundation’s mission is to encourage investment, socio-economic development, and innovation in Africa. We were proud to sponsor this event and look forward to continuing our relationship with this great organization.

Line of duty officers

New Bill to Protect Families of Line of Duty Tragedies

Partner Sean Riordan has worked closely with State Sen. Andrew Gounardes, NYC DEA VP Paul DiGiacomo and line of duty widow, Pai Xia Chen to pass a new bill that would ensure the children of uniformed personnel born after their death, with reproductive technology, are covered under their Social Security Benefits.

Detective Wenjian Liu was fatally shot in 2014 in an ambush that resulted in his and his partner Rafael Ramos untimely death. Det. Liu’s wife of three months had his sperm preserved the night of the incident. She gave birth to his miracle child with the help of in-vitro fertilization in 2017. After applying for Social Security benefits to support their daughter, she was denied under federal law. Currently, New York’s inheritance laws do not include children that are conceived this way and do not recognize the child as his “biological” child. Det. Liu did not give written consent for the use of his sperm or file with the Surrogate Court within 7 months of his death. Therefore, his daughter is not legally protected under his benefits.

The Detectives Endowment Association, Sen. Gounardes, Sean Riordan and Paul DiGiacomo worked tirelessly to create a bill that would include children born this way to be covered under their parents’ benefits. They argue that the federal law must change and evolve with the technology that is now available in reproductive assistance. Allowing widows to create the family with their deceased spouses and legally acknowledging them as biological children who automatically receive benefits.

We thank Senator Gounardes for working with us on this legislation and making it a priority to protect uniformed personnel and their families. We look forward to working with Assemblyman Abbate to pass the bill and fight for the rights of these line of duty children.

To read the full article click here