December 2017 Legal Report

Legal Report by Milan Rada Esq., with John Hewson, Esq.

With the end of another year comes a time for reflection on what has transpired and changed over the course of just twelve months.  We look back at things that have happened in all aspects of our lives including our personal and professional lives.  Similarly, organizations will go through their own changes in a given year as well. 2017 has certainly been one of those years that has brought an immense amount of change to the Nassau County Police Department as well as the PBA.  One of the biggest changes has to be the number of members that have chosen to join the ranks of retirees this year.  From a legal perspective, that spurs us to discuss a few things affecting retirees in our year-end Legal Report.

We are sure that most, if not all, retirees have sat down with their chief financial planners and decision makers before deciding that retirement was both the best decision for them as well as being affordable.  That being said, one of the things that we feel is rarely discussed is the opportunity of being awarded Social Security Disability Insurance (“SSDI”) benefits as part of a retirement plan.  One of the main misconceptions about SSDI is that if a person retires on a regular, service-based pension you cannot be eligible for SSDI.  This could not be further from the truth.  In fact, for financial reasons, a person might be advised to simply take his or her regular pension despite being disabled from the duties of a police officer because the service retirement pension will pay more.  Thus, the analysis of whether this person is still disabled under Social Security’s rules can still continue despite the regular pension.  Therefore, our advice has been and continues to be that unless a retiree plans on continuing to work in another capacity after retiring from the PD, at the very least every member should consider that he or she might be a viable candidate for SSDI.

In addition, just because a member takes a service retirement does not mean that the member cannot revisit a disability pension after that point; however, the time period in which to do so is limited. For any work-related disability pension, whether it be for 3/4 tax-free or for a 50% tax-free disability pension, a member must file his or her application with the Retirement System within two years of being removed from the payroll.  Furthermore, if a member retires while he or she is on restricted assignment and although he or she can apply within two years, if that member files the application more than two years from the point they started that last restricted duty assignment, the Retirement System will use a “light duty” standard instead of a “full duty” standard to determine disability.  As you can see, the decision to pursue a disability pension after retirement is complex by itself but there are other factors that complicate the decision even further.  Clearly, this is another situation that should be analyzed and evaluated in depth and with the wisdom and expertise of legal counsel.

Not all of the changes are only for those retiring from the Department. For those members that are still active, there are a few changes that are coming up that need to be discussed as well.  The most significant on the horizon in the disability field are potentially drastic changes in the Workers’ Compensation law. Many of you reading this article have had injuries on the job in the past.  Those of you that have had extremity injuries such as shoulder, arm or knee injuries may also remember receiving settlements at the end of your compensation claims, which are called “Schedule Loss of Use” awards.  In short, the Workers’ Compensation Law puts a value on each of the extremity body parts in the form of weeks of benefits.  For example, an arm is worth 312 weeks of benefits under the Workers’ Compensation Law.  When the case is getting ready for settlement, the doctors (both the treating physician and the IME) place values on the loss of use which then sets the value, in terms of weeks, for the permanent injury that a member has suffered.  That value is then converted into dollars and cents using the maximum rate of compensation for the claim.  After the County is reimbursed for any wages paid during the lost time on the case, the remainder is payable to the injured worker as the settlement of the claim, which is why we encourage officers who have injured an extremity to return to restricted duty work as soon as possible.  Unfortunately, this system as it has existed for over one hundred years is potentially going to be changed, at the expense of injured workers.

In the 2017 New York State budget, several changes to the Workers’ Compensation system were integrated as part of the bigger budgetary picture.  One of these changes was that a panel was to be set up to evaluate potential changes to the Schedule Loss of Use guidelines.  These guidelines are used by doctors in evaluating the percentage loss of use of an injury to an extremity. Ultimately, the proposed budget states that these changes should only be made with giving consideration to improvements in modern medical technology and medical outcomes in mind.  In practicality, the proposed changes in the guidelines appear to have only one purpose, which is to reduce to reduce the value of these claims and to save the insurance carriers and self-insured entities in the state as much money as possible on settlements at the expense of injured workers.  Therefore, if these changes go through, what may have once been a 25% loss of use to the shoulder might now only be valued at a 5% loss of use.  While these changes are potentially going into effect on January 1, 2018, there has been a considerable push back on the reforms by the labor movement in New York State in addition to the orthopedic councils and the State Legislature.  If any changes do go into effect, please be assured that our office will keep both the PBA and the membership aware of them and how they will affect the members.

Once again, with the end of another year, we wish you and your families all the best at this holiday season.  Please keep in mind that every consultation with our office is a free consultation, and we are always happy to serve the members, their families, and friends in whatever way we can.  If you have any questions about these matters or any other disability-related issues, please feel free to call our office at 516-941-4403, or e-mail us at mrada@fbrlaw.com.