January 2016 Legal Report

Legal Report

By Milan Rada Esq. with John Hewson, Esq.

Even though we start 2016 with the hopes of health and prosperity for all of our friends and clients, we recognize the reality that many will unfortunately suffer injuries over the course of the next 12 months and beyond. Therefore, we are taking this opportunity to discuss several issues that should be second nature to every officer, but regrettably are not: we continue to confront questions and issues concerning line of duty injuries, on a regular basis when meeting with our clients. Accordingly, this month’s Legal Report is a basic primer for what to do if you are injured in the line of duty and what rights you have after you suffer a line of duty injury.

As the Legal Report has frequently cautioned in the past, once an injurious event occurs several important timelines begin. Most importantly, every injury must be reported to the Department within seven (7) days of the injury, per the Department’s Manual.

Keep in mind that the initial accident report may very well become the basis for a future claim for Workers’ Compensation benefits or for Accidental Disability Retirement Benefits (75%), so despite this relatively short period of time to notify the Department, it is incredibly important for this initial report to be thorough and accurate, both in the description of the injury as well as how the injury occurred. Far too often we have seen otherwise solid and viable Accidental Disability Claims disintegrate simply because of poor, incomplete, ill informed or lazy descriptions on the initial report of injury. Further, it is for this same exact reason that we very rarely suggest using “Non-recordables”. Recently, we met with a client who filed a “Non-recordable” accident report only to realize several days later that the injury was far more serious than when it occurred. As you can imagine, within the Department’s current climate of dealing with injuries, the validity of whether any injurious event even occurred is questioned. Although we believe this officer will eventually be covered entirely, it is most likely that this issue might have been avoided if a full and detailed packet was completed right from the beginning.

At the point in time that an officer suffers an injury and then needs to miss work due to that injury, the Department requires that officer to be evaluated for duty fitness by a physician from the Police Surgeon’s Office. Although in the majority of circumstances the Surgeons actually come to reasonable conclusions that validate the opinions of the treating physicians, there are those occasions where a dispute may arise between the Police Surgeon and the treating physician. It is important to know the rights that an officer has in this situation pursuant to the Memorandum of Understanding between the Department and the PBA. Both parties are entitled to due process rights that need to be protected and respected. In a situation where there is a dispute between the treating physician and the Police Surgeon, the Police Surgeon must contact the treating doctor to see if there is any common ground that can be agreed upon in terms of allowing the member to return to work, whether at full duty or restricted assignment. Most of the time this will occur where the treating doctor lists the member on “no duty” status while the Police Surgeon believes the member can return on restricted assignment. If no agreement can be reached between the medical professionals, the Police Surgeon will render an opinion regarding the duty fitness of the officer. If the member still wishes to dispute the opinion of the Surgeon then the member must request Medical Review in order to settle the dispute. Medical Review involves the member being seen by an independent third party doctor whose opinion regarding duty capability will become binding on all the parties when accepted by the Police Commissioner. Under only extremely limited circumstances, will the Police Commissioner reject the opinion of the independent third party doctor.

Although the Police Surgeon will offer an opinion regarding the duty status of an officer, that opinion may differ entirely from that of the treating doctor. Medical Review has existed since 1993 to resolve this difference of opinion. Despite the existence of this procedure for all these years, the Police Surgeon’s office, as well as MAO, have become lax in advising the right to Medical Review to the members when they are seen either in the Police Surgeon’s Office or at MAO. All members must realize their right to Medical Review, which must be requested in writing within 30 calendar days of personal receipt of the Chief Police Surgeon’s determination regarding duty status ability. If any questions arise after being examined in the Police Surgeon’s office, contact your PBA trustee or delegate, or our office immediately for advice.

In addition to the contractual rights that members have when being examined by the Police Surgeon’s office, there are also statutory protections. Over the course of the past several months we have heard complaints of members’ rights to the privacy of their health information being violated by the Police Surgeon’s office, which is subject to HIPAA compliance in the same manner that a treating physician is. Therefore, any disclosure of private medical information by the Police Surgeon constitutes a clear violation of the HIPAA statute. Although medical disclosure to MAO of pertinent health information relating to a police officer’s ability, or inability, to perform police duty is clearly allowable, the types of violations that have occurred involve open discussions of members’ medical conditions and illnesses within direct eye and ear-shot of other members in the office and waiting area of the Police Surgeon’s office. These types of invasions of privacy are completely unreasonable and can be the subject of EEOC complaints against the Police Surgeon’s office.

As always, our advice to members is that when injured in the line of duty, contact our office as soon as possible either by calling us directly or by making contact through your PBA trustees/delegates. Our goal is to make sure each member is protected as much as possible, both in the most minor of injuries as well as in major ones.

We wish all the members of the PBA, their families and friends, as well as all the other members of the Nassau County Police Department, a safe and prosperous New Year. We much prefer to see you at holiday and retirement parties, as well as other pleasurable events, instead of in our office concerning an accident or injury. Yet, since injuries are an inevitable part of police work, it is imperative that your rights are protected when an injury is suffered.

It is always our greatest honor and privilege to represent those that keep us safe. And, we will always do whatever we can to ensure your safety and protection. 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.