February 2016 Legal Report

Legal Report

Milan Rada, Esq. with John Hewson, Esq.

As much as we hope that the information that we provide will filter its way to each and every member of the Nassau County Police Department, we are often struck by how many times we have consultations with clients that unfortunately end with bad news for the member because of a very clearly avoidable mistake being made. Whether that mistake is a poorly drafted injury report or performing too many hours of overtime while on restricted assignment, any mistake is potentially devastating to a disability claim. The goal of each Legal Report is to provide the necessary information that can help avoid these pitfalls and mistakes.

Recently, at one of the holiday parties we were approached by a retired member who indicated that he did not realize that he could be receiving Workers’ Compensation benefits in addition to his service retirement pension. Especially in situations where the member is taking a pension other than a ¾, accidental disability retirement pension, the effects of a work related injury and the opportunity to also receive Workers’ Compensation benefits may be overlooked. Coincidentally, the situation also arose within a few days later when a client consulted us on a possible accidental disability retirement, ¾ claim. In both cases, the members made mistakes that were potentially fatal to their claims for benefits that otherwise might have been available to them.

Following a line of duty injury the goal of the injured officer is to recover from his injuries as quickly as possible and return to full duty with as few restrictions as possible. We assist the officer in navigating the disability legal processes so that he/she gets all the medical care and treatment, as quickly and seamlessly as possible, needed to achieve this goal. Despite the enhanced protections provided by General Municipal Law (GML) Section 207-c, we file a Workers’ Compensation claim in order to protect the police officer’s future rights to any medical treatment, settlements for permanent injuries, and possible bi-weekly payments in certain situations. As we have written in the past, without the protections of GML Section 207-c, line of duty injuries for Nassau County Police Officers would be covered exclusively through the Workers’ Compensation system including the limitations on bi-weekly payments. The current maximum rate of Workers’ Compensation payments is $844.29 as of July 1, 2015. Instead of this maximum rate, officers are paid their full salary when they are out of work due to a line of duty injury.

However, when a police officer comes off payroll and is no longer covered under GML Section 207-c, the cop may still be entitled to receive Workers’ Compensation payments despite no longer being employed by the Police Department. This entitlement to Workers’ Compensation is tied directly to whether or not the reason the cop has stopped working for the Police Department is because of a work related injury. Despite how obvious this fact may appear, the unfortunate reality is that without taking some specific steps, any officer could very easily jeopardize his/her right to these benefits.

In the case of a police officer who retires with an accidental or performance of duty disability retirement pension, the officer has obviously had a line of duty injury that has resulted in injuries and impairments that prevent him or her from ever again being able to perform the full duties of a police officer. If the event is an “accident”, it qualifies for a 3/4 disability pension. If the event is an “incident”, it qualifies for a performance of duty disability pension worth 50% of final average salary. Both of these benefits are tax-free. In both of these cases the retiree is also entitled to receive Workers’ Compensation payments when retired from the Police Department. In the case of a police officer receiving accidental disability retirement benefits the Workers’ Compensation payments are offset from the check received from the Retirement System. However, recipients of performance of duty disability retirement benefits receive Workers’ Compensation payments in addition to their pension checks.

Not only can retirees who receive a disability pension also qualify for Workers’ Compensation payments, but even those members who take a regular service retirement pension can qualify as well. That might be news to many people reading this article, but it’s a fact. In certain scenarios, a member might be injured on the job, yet it may not be in his or her best interests to receive a disability pension. This is especially true if the injury clearly is not an “accident” and would only be a 50% disability claim. A regular service pension may very well be worth more than the 50% tax-free performance of duty disability pension, despite the tax implications. Nevertheless, the police officer is still retiring due to a work related injur and under these facts, not only can the officer begin receiving his or her service retirement, but we are also able to go to the Workers’ Compensation Board and request payments of compensation once the officer is off payroll.

The key to all of these scenarios is connecting the line of duty injury and the ongoing inability to work. In order to make certain that this nexus is protected, the officer’s doctors must be fully aware of the situation and be able to provide medical opinions regarding both the inability to continue working and that causal relationship between the injury and disability continues. Unfortunately, this step is often where major mistakes are made. If an officer retires, even due to an obvious injury, without having his doctor provide an opinion indicating that his or her career is over as a result of that injury, then all future benefits may be compromised because the insurance carrier on the Workers’ Compensation claim will allege that the police officer voluntarily retired from the labor market as opposed to being retired due to the injury. Of course, once retired, it is nearly impossible to put that genie back in the bottle, and a judge may very well rule that the member retired of his own accord rather than on the advice of a medical professional that retirement was in the officer’s best medical interest due to line of duty disabling injury.

As you can see, in preparation for retirement, especially because of a line of duty injury, consulting with us and getting proper, expert and thorough legal advice is the best way to protect any other benefits to which you may be entitled. Before doing or saying something that may damage any of your claims, know what’s at stake, ask the important questions and make sure your doctors know your plans. As always, we will do our best to ensure your benefits are protected. If you need our office for any questions or concerns, feel free to call us at 516-941-4403 or by email to mrada@fbrlaw.com.