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.