January 2017 Legal Report (Part 2)

Legal Report by Milan Rada Esq., with John Hewson, Esq. There are several recurrent themes that we see over and over again when we do appointments with members.  Thankfully, most of these issues are easily dealt with. The troubling part is that several are so important that they continuously warrant discussion and need to be stressed because the failure to understand these important issues can be the difference between a claim that goes very smoothly and a claim that is constantly bombarded with obstacles.

For starters, with so many new and young members on the force, we must discuss what you need to do when you get injured on the job.  Every claim begins with an event that causes an injury to a member.  In many cases, these initial moments are the most important on the case, and they can be the difference between a claim that is properly documented and protected, and one that has a fatal flaw that cannot be repaired.  When a member gets injured on the job, the proper documentation and reporting of the injury are crucial.  Under the Department Manual, a member who is injured in the line of duty has seven (7) days to report the injury to the Department.  This step is crucial.   Countless times members have told us that they were told they needed to submit an accident report (aided packet) immediately or as soon as possible, otherwise it will not be accepted.  This is not correct.  The seven (7) day reporting rule exists to protect both the member and the Department.  The Department will not be prejudiced by a member waiting one week to report an injury because in most cases, the Department already has verbal reporting of the injury to a supervisor, and in instances where the member is so badly injured that he cannot work he will have already reported the injury to the Police Surgeon, if physically possible.  This rule should be utilized by the member to protect himself and make sure that he or she has ample time to produce a fully complete and fact-specific report documenting the injury.  Proper documentation of an injury matter when it comes to the New York State Police and Fire Retirement System, and a lazy or inaccurate description of an event can be the difference between a 3/4 or accidental disability pension and one that results in only 50% or a performance of duty disability pension.

We have seen too many injuries go unreported or not properly documented over the years.  If you have read this Legal Report in the past, you have also seen that we are not necessarily fans of “non-recordables”.  Though we certainly understand their value from a certain point of view, we have also seen many times over the years where members start a claim with a non-recordable but the injury turns out to be much worse than they initially thought.  When they filed the “non-recordable”, they failed to take the time to properly document all of the specific set of circumstances that caused the injury, particularly giving short shrift to the description of how the injury occurred and then, when the Retirement System evaluates the initial injury report, the Retirement System sees no distinction between a “non-recordable” and a full injury packet. The “non-recordable” is a shortcut, a time saver, which typically does not command the attention to detail as does a full aided packet. Therefore, that initial report, the non-recordable, will be the first description of the injury and the one that the Retirement System typically will use when making its determination as to whether or not the injury was the result of an “accident,” as this term is defined in the Retirement and Social Security Law.

These initial reports can either make or break a claim that may not be filed until years later. Attention to detail is a must. Thus, we also advise our clients to tell their delegates and trustees about their injuries as soon as possible.  Not only are the PBA delegates incredibly knowledgeable about how to handle this process, but they also will contact our office if there are any issues that need clarification.  So, if there is any discrepancy or question as to how to draft a report or describe the accident, we can assist in making sure the report is thorough and accurate, even if the injury first appears to be relatively minor and not expected to have any negative impact on the officer’s career.

The reporting process is not only important to the Department itself, but it is also required for both the Workers’ Compensation claim as well as for the Retirement System. Under the Workers’ Compensation Law, an injured worker has two years to file a claim with the Board itself but must report the accident to his or her employer within 30 days of the occurrence.  If the injury is not reported, the employer can essentially controvert the claim on the basis that it was not timely reported, thus costing the injured worker the medical coverage that he or she is entitled to for the injury as well as the monetary benefits that he or she might be entitled to while out of work.  In the case of an extremity body part such as a knee or shoulder injury, that can also mean missing out on a schedule loss of use settlement that might be worth thousands of dollars.  In addition, under the Retirement and Social Security Law, a member must report the injury to the Comptroller’s office as well in order to be protected under the disability statutes.  For those who have had injuries in the past, you are likely thinking that you have never filed an accident report with the Comptroller before.  You would be absolutely correct.  The reason is that a properly and timely filed accident claim with the Workers’ Compensation Board satisfies the filing requirements of the Comptroller and a timely filed accident report with the Police Department satisfies the 30-day notice requirement of the Workers’ Compensation Law. It is a domino effect: file your full aided packet (or “un-recordable” if you absolutely must) with the Department within the required seven (7) days and you have protected the filing requirements for Workers’ Compensation and disability retirement pensions.

Please keep these documentation requirements in mind the next time you suffer or hear about another member suffering an injury on the job.  Our goal is to make sure these concerns and problems are eradicated so each member is fully protected both with the Department and any other claims that might arise because of the line of duty injury.

We wish you, your families and friends a very safe, happy and prosperous New Year. Keep in mind that every consultation with our office is at no charge 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 or injury related issues, please feel free to call our office at 516-941-4403, or e-mail us at mrada@fbrlaw.com.