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.