Correction Officers' 3/4's Disability

2019 Correction Officers’ 3/4’s Disability Pensions: Year-in-Review

By: Sean Patrick Riordan, Esq.

Although there were only three cases involving Correction Officers’ ¾’s disability rights decided by the state’s highest courts in 2019, it was an important and impactful year. The Court of Appeals (the highest court in New York State) decision in Walsh v. DiNapoli expanded the Comptroller’s interpretation of “act of an inmate” and, therefore, expanded the disability coverage provided to Correction Officers when they are injured in the course of their duties. Contra-positively, The Appellate Division 3rd Department's decisions in Echevarria v. DiNapoli and Elrodt v. DiNapoli affirm some of the more difficult procedural hurdles faced by Correction Officer’s attempting to prove their cases for Correction Officers' 3/4's Disability benefits.

Walsh v. DiNapoli:

Certainly the most important case of the year, the Court of Appeals decision in Walsh v. DiNapoli has clearly expanded the disability rights of Correction Officers. Admittedly, I was very concerned about this case and its potential outcome, but am ecstatic about the Court’s final, and proper, decision.

To understand the Court’s decision one must understand the language of the ¾’s statute itself. The Performance of Duty Disability (“POD”) statutes call for payment of a ¾’s disability benefit to a correction officer who becomes “permanently incapacitated by, or as the natural and proximate result of any act of any inmate or any person confined in an institution under the jurisdiction of the” Department of Corrections. Prior to 2016 the Comptroller interpreted the term “act” to require that an inmate intend to harm a Correction Officer with their “act.” In Traxler v. DiNapoli the 3rd Department found that the Comptroller’s interpretation was unreasonable and that as long as the inmates act itself was “volitional”, the resulting harm to the Correction Officer did not need to be intended. In other words, as long as the inmate intended to perform “an act” they did not need to intend to hurt the Officer. The question that was raised in Walsh v. DiNapoli was: What if the inmate’s “act” itself was not intended? Can an Officer obtain disability benefits if they are injured by an inmate’s non-intentional actions?

In Walsh an inmate was removed from a courthouse by a Correction Officer transport team due to the inmate’s unruly, and likely substance induced, behavior. Officer’s observed the inmate to be unsteady on her feet when they walked her out of the courthouse and loaded her into the transport van. Upon arriving at the correctional facility Officers instructed the inmate to exit the van. Following “one or two” steps the inmate tripped and fell out of the bus, landing on Officer Walsh and causing substantial injury to her back, neck and shoulder. Upon filing for disability benefits from the Retirement System, the Comptroller denied her claim with a finding that the occurrence described was not the “act of an inmate” because the inmate’s actions were “non-volitional.” Said another way, because the inmate did not mean to fall no inmate “act” was performed.

On appeal the Appellate Division upheld the determination denying benefits, finding that the legislative intent of the Correction Officer’s ¾’s bills was to provide disability benefits to Officer’s due to their daily interactions with violent and anti-social inmates. Therefore, if an inmate does not “intend” to perform their “act” they are acting neither violently nor anti-socially and benefits don’t apply. This is the thought process that the Court of Appeals overturned.

The Court found that the “plain meaning” of the word “act” encompasses both voluntary and involuntary actions. Where unambiguous words are used by the legislature, the courts will, and must, apply their plain meaning. Therefore, the plain meaning of the statute calls for coverage even when the inmate did not mean to perform the act. In Walsh, the inmate did not intend to fall, but her “act” of falling still affords disability coverage to Officer Walsh.

Further, and probably even more important for future appeals, the Court took issue with the Appellate Division’s interpretation regarding legislative intent. The Court notes that the legislature used broad terms such as “any act” when it wrote the ¾’s statutes. Further, the legislature was intentionally expanding disability coverage for Correction Officers when they wrote the statutes; a reading of the statute in a manner that limits that intent would undermine what the legislature was purposely doing.

While the vast majority of Correction Officers’ injuries are incurred by volitional inmate actions and not un-intended inmate actions, the Walsh decision is an excellent decision for Officers state wide. In addition to the expansion of coverage for “involuntary actions” I plan on using the language of the decision to attack other Comptroller interpretations of the Correction Officers' 3/4's Disability statutes. Stay tuned.

Elldrodt v. DiNapoli:

A short and to the point decision regarding the Correction Officer’s “Heart Bill”, the case is a good reminder of a basic premise of the law that applies to all disability bills. In 2013 Officer Elldrodt applied for ¾’s Heart Bill alleging disability due to a heart impairment. Later in 2013 the Retirement System sent the Officer for an examination with its Independent Medical Examiner (“IME”). The IME found that the Officer did not have a permanently disabling heart condition and could return to work as a CO. On appeal, the Officer (and his attorney) relied on his treating cardiologist’s opinion that he is disabled from Correction Officer work. However, such cardiologist did not start treating the Officer until 2016 and admitted in his testimony that he could not state that the Officer was disabled at the time he filed his application in 2013.

The Court points to this basic fact in its decision and re-affirms the legal point that an applicant for disability must prove that they are disabled at, and from, the date that they submit their application for disability benefits. In other words, at the moment an Officer submits their claim for disability benefits they are asserting that they are disabled and have the burden of proof to establish this point. If you can’t prove that you are disabled from your full duties from the date you submit your application, you are not entitled to disability benefits pursuant to regulation.

This often arises with officers that come in for initial consultation and are frustrated by my opinion that their case is not yet ready to file, despite the officer’s “feeling” that they will never again be able to perform their full duties. While the officers’ feelings may well be warranted and prove to be true, it is extremely important that we be able to prove that the disability is “permanent” and that the officer has undergone all remedial measures at the moment of filing. The timing of a filing is extremely important and should never be underestimated.

Echevarria v. DiNapoli:

The Echevarria decision is one that I hesitate to discuss simply because its finding is as confusing and poorly explained as any I have seen in recent memory. In short, Echevarria claimed to be permanently incapacitated due to a knee injury incurred during inmate relate occurrences in 2001, 2006, 2007 and 2010. Prior to becoming a CO the Officer had reconstructive surgery to the same knee in 1995. The Officer’s treating orthopedist testified that the inmate related occurrences were the cause of Echevarria’s disabling knee condition and that each occurrence had aggravated or exacerbated an underlying, pre-existing knee condition.

Although the System’s IME stated that Echevarria is disabled, he placed the cause of such disability on the 1995, pre-employment, surgery. He opined that the 1995 surgery caused osteoarthritic development in the knee and such osteoarthritis is the cause of the Officer’s current disability.

The reason that I question this decision is that the Court points out that the IME testified on cross-examination that the subsequent inmate related injuries “aggravated or exacerbated” the underlying condition, and in fact stated that each of the inmate related events were a “contributing factor” in Echevarria’s disability. This testimony mirrored the testimony of Echevarria’s treating doctor.

This goes to the heart of a long-standing legal rule that when “an injury permanently aggravates or exacerbates an underlying pre-existing, asymptomatic, condition, the injury is the legal cause of the permanent disability.” Essentially, if you have a pre-existing condition but such condition is not causing any symptoms, and then an injury occurs which causes permanent symptoms to exist, the injury is the cause of the disability.

The Hearing Officer disregarded the findings of both doctors that the inmate related events aggravated or exacerbated the underlying osteoarthritis and found that the disabling knee condition was entirely due to the 1995 surgery. The Appellate Division upheld such decision as rational. The Court grounds such rationality in the Hearing Officer’s finding that Echevarria was able to keep working for another 9 years after his first inmate related occurrence and that osteoarthritis is a progressive condition.

Because the Hearing Officer found that there was no aggravation or exacerbation caused by the subsequent inmate related injuries, the case can’t be read as directly attacking the previously explained legal rule of “permanent aggravation or exacerbation” but it certainly raises some serious concerns. First, how is the Hearing Officer’s decision grounded in “substantial evidence” if both doctors agree that the inmate related occurrences “aggravated or exacerbated” the underlying osteoarthritis? Is the Court saying that a Hearing Officer can simply disregard the opinions of medical experts and insert his own, un-trained, medical opinion into the decision? Further, what legal difference does it make that Echevarria kept working for another 9 years post the first inmate related occurrence if he sustained other inmate related occurrences, especially one in the last year he worked?

While the decision of Echevarria v. DiNapoli clearly raises some genuine concern, I am choosing to read this decision (perhaps optimistically) as simply a poor recitation of the testimonial evidence. Although I have never seen the hearing transcripts in this case, and the Court never says this, I have a sneaking suspicion that the IME actually testified that the inmate related events only “temporarily” aggravated the underlying knee condition, not causing permanent damage. If the aggravation or exacerbation is not “permanent” then the legal rule does not apply. I certainly hope that this proves to be an accurate hunch, otherwise the Echevarria decision may be as important to Correction Officers' 3/4's Disability cases as the Walsh decision.

Conclusion:

As always, if you have any questions about your disability rights don’t hesitate to call me at (212)612-3198 or email me at Sean@nycomplaw.com.

Have a healthy and safe 2020!

 

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!

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.

New York Social Security Disability Lawyer, NYCERS State Disability Pensions

The NYS Light Duty Standard & NYS Disability Pensions:

When does my job become my Light Duty Responsibilities in the Eyes of the Retirement System?

By:  Sean Patrick Riordan, Esq.

In the course of the last week I have encountered 3 different officers who wished to apply for their disability pensions but had worked in a light duty position for more than two years, and thus faced what is commonly called the “Light Duty Standard of Review” if they choose to file at this time.  The Light Duty Standard of Review almost always ensures denial of a disability pension application, so it is vitally important that officers understand the rules associated with this regulation.

The Light Duty Standard of Review is not found within the NYS Retirement & Social Security Law (RSSL), the law that provides the statutory retirement benefits. Instead, the rule is found within the New York Codes Rules and Regulations (NYCRR), the Retirement System’s rules for administering the benefits provided by law. The specific rule can be found at NYCRR 364.3.

Paraphrasing the law, the Light Duty Standard of Review is applicable when:

  • An officer works 2 years or more in a light duty position without returning to his/her full duty responsibilities;
  • Works greater than 100 hours of overtime in a Light Duty Position in any 12-month period.

The majority of the confusion arises from rule 1 above and the amount of time that an individual has been assigned to a light duty standard. The regulation states that the Light Duty Standard of Review applies when an officer “has been continuously assigned to light, limited or restricted duties for at least 2 years.” In Vicks v. Hevesi, an applicant for disability retirement argued that he had not worked a light duty position for more than 2 years because his injury forced him to miss days from work. In other words, he had not “continuously” worked in such light duty position for the required 2-year period.

The Court rejected Vicks’ argument, finding that although he missed days from work due to his impairments his “assignment” to light duty was indeed continuous and therefore the amount of days Vicks actual worked in that post were irrelevant. The Court looked to the assignment to the duties, not the number of days worked.

For several years attorney’s operated under this “assignment” ruling, looking towards an employer’s roll-call for an officer’s actual duty assignment. However, in 2015 the goalposts once again moved suddenly. In Lamb v. DiNapoli applicant argued that the Light Duty Standard of Review should not apply because he had not been “assigned” to a light duty job for over 2 years. Lamb argued that when he missed time from work due to his injuries his “assignment” actually changed and he was taken off of light duty assignment and assigned to a “no duty” status. The Retirement System argued that the continuous assignment to light duty is not interrupted by absence from work and therefore the Light Duty Standard of Review continued to apply.

The Court upheld the Retirement System’s interpretation of the law as a “rationale, reasonable reading of the regulation” and therefore denied Lamb’s appeal. “The record establishes that petitioner’s absences from work were due to his injuries and not as the result of any reassignment of duties by the employer.” In short, the Court did not consider a “no duty” assignment as an interruption to an officer’s assignment to light duty.

So, where do we stand now? The easiest way to calculate your light duty assignment time is to keep track of the very first day you are assigned light duty following an injury. From that date, you must file an application for disability retirement before 2 years or the Light Duty Standard of Review will apply to your application for retirement benefits.

A simple hypothetical will help illuminate the rule:

Officer X is injured in-the-line-of-duty on December 25, 2019. Following a brief absence from work his department places him on light duty assignment beginning January 1, 2020. After only 2 weeks in this light duty assignment Officer X goes back out of work to have surgery. Following surgery, Officer X never returns to any assignment due to his disabilities and remains in a “no duty” status.

In the above hypothetical Officer X must file his application for disability benefits before January 1, 2022 or the Light Duty Standard of Review will apply to his application. The fact that he did not actually work a light duty post for more than 2 years is irrelevant, his “assignment” to light duty was not interrupted by his mere absence from work for disability pension purposes. Instead, the Retirement System will calculate Officer X’s light duty time from the first date that he is assigned to such a post.

The only way that the light duty time can be interrupted once an officer is assigned to such a post is to return to work in a full duty capacity. Otherwise, an application for disability benefits MUST be filed with the Retirement System before the two-year period elapses or the Light Duty Standard of Review will apply. If an officer files an application before the two-year period passes, the fact that he/she remains in such position during the processing of the application is irrelevant, the full duty standard would still apply to such officer because he filed his application before the two-year period ran out.

Lastly, there is also a false rumor that mandatory overtime is not considered in the calculation of the 100 hours of overtime. In Koenig v. DiNapoli the applicant sought to deduct from the overtime calculation “mandatory overtime for medical evaluations, court appearances and contractual travel overtime benefits.” The Court sided with the Retirement System by finding that its interpretation of the regulation as having included such mandatory overtime as “rationale and reasonable.” Therefore, such overtime is considered in the calculation of overtime for the 100 hours within any 12-month period.

The bottom line is, keep track of the first date you actually are assigned to light duty AND keep track of how many hours of overtime you are being credited for during the year. It could mean the difference between a disability pension or not.

As always, if you have any questions call me any time – (212) 612-3198 or email me at Sean@nycomplaw.com.

Be well and be safe!

NYC COBA Newsletter Features MDASR

MDASR featured in COBA NYC's April 2019 Newsletter

McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP is happy to report our recent successful Workers' Compensation and Pension Disability cases representing New York City Correction Officers (NYC COBA) MDASR works closely with the NYC Correction Officers' Benevolent Association and its' Officers. We are proud to be featured in their April 2019 Newsletter. The attorneys at MDASR are committed to providing their expert experience to advocate for injured and disabled workers and receive the best possible outcome for our clients.