January 2020 Legal Report

LEGAL REPORT

By:  Milan Rada, Esq., and John Hewson, Esq.

As we begin 2020, there are always a few things that we think are worth mentioning and  providing a few friendly reminders at the start of another happy and healthy New Year. So, we are using this month’s Legal Report to go over some of the most common questions and issues that have come through our office throughout the past year.  Of course, as with any topic, there should not be any questions that go unanswered since we are always happy and available to help in whatever way that we can.

For starters, we wrote about this topic several times over the past years – the biggest reminder has to be that the initial accident reports and paperwork are extremely crucial to any of the claims on which we represent our clients.  We recently saw yet another situation where the member in question was injured in what should have been a bonafide “accident” while on duty, but he was denied simply because the initial statements that he provided, as well as the initial accident descriptions provided to the supervisor who took the report and to the police surgeon, did not match the Retirement System’s definition of the word “accident.”  The officer simply filled out the report on the day he was injured without consulting either his union delegate or our office, and despite the fact that we believe that he actually suffered an “accident” on the job, after a hearing, the Retirement System’s Hearing Officer affirmed the Retirement System’s denial on the basis that he did not believe the initial report constituted an “accident” for 3/4 purposes.  However, the Hearing Officer, surprisingly, wrote in the decision that if he accepted the applicant’s description of the event as written on the application and as described during testimony that it would have constituted an “accident”. The Hearing Officer relied on years of case law, which provides that an initial report carries greater weight than subsequent reports or testimony because the more contemporaneous report is considered more reliable. Thus, the member will be approved for his disability pension, but it will only be a Performance of Duty pension worth 50% of his final average salary.  Once again, the lesson to be learned is that when you are injured, every member should reach out to his or her delegate or trustee before drafting an injury report that may or may not be the difference between an Accidental or Performance of Duty disability retirement, ie., the difference between 75% of final average salary or 50% of final average salary over the officer’s lifetime. Executive Board members, trustees and delegates have our cell numbers so we can be reached any time.

Another issue that needs clarification is appreciating the definition of a line of duty injury or illness for members of this Police Department.  According to a Memorandum of Understanding dated March 25, 1993, entered into by the Nassau County Police Department and the PBA, a line of duty injury or illness is defined as follows: 

1. An injury or illness received while the member was on duty (while not on meal period, except if in a Departmental building or vehicle), if the member was not acting illegally; or
2. An injury or illness received while the member was acting pursuant to the duties and responsibilities of a Police Officer; or
3. An injury or illness received while the member was acting in response to the direction of a Superior Officer.

Line of duty status given to an injury resulting from “acting pursuant to the duties and responsibilities of a Police Officer,” is completely in synch with the Department Manual, Department Policies, POL 4001 Duty: “In furtherance of the Department’s Mission, it is the duty of the Police Department and the Members of the Force, at all times of the day and night, to protect life and property, prevent crime, detect and arrest offenders, preserve the public peace, and enforce all laws and ordinances over which the Police department has jurisdiction.”

A Member of the Police Force acts within the scope of official duties when (s)he performs any “legal act or activity either on or off duty, pursuant to the duties and responsibilities of a Police Officer” (see Department Manual, Glossary, “Scope of official duties”; emphasis added). In such a circumstance a member of the force should complete a line of duty packet whether the member has identified himself as a police officer or not. If circumstances permit, identifying yourself as a police officer is the preferable action, but if not possible the injury will still be line of duty if conditions as described above are met. For instance: if an off duty police officer runs into a burning building to rescue any people that might be trapped inside, this is an example of acting “within the scope of official duties”; if an off duty police officer stops at the scene of a traffic accident and assists in extricating someone from the car, this is yet another example of acting “within the scope of official duties.”  In both of these examples line of duty status will be accorded and whether or not the police officer identified himself as a police officer is not the determinative factor. However, if a police officer becomes involved in a bar fight, whether or not the police officer identified himself as a police officer might be a key factor.

The most important thing to remember is accuracy: if you did identify yourself as a police officer all documentation should say so. Likewise, if you did not identify yourself as a police officer, all documentation should so state. There must be complete, truthful consistency on this matter.  The accident report to the Police Department, the Workers’ Compensation Form C – 3, and any documents completed in connection with a criminal prosecution must all be completely accurate and consistent on the issue of police self-identification, as well as all other factors relating to the event. The important take away is that it is not necessary to self-identify as a police officer to make a claim that an off-duty event is entitled to line of duty status. 

As a reminder, be aware of Department Manual Article 7, Rule 7, which provides as follows:

“Full pay will be granted to Members of the Force for injuries received while acting within the scope of official duties when such injury has been reported to the member’s Commanding Officer within seven (7) days after the injury was sustained and it can be conclusively shown that the disability was actually received while the member was performing police duty and that no negligence on the member’s part contributed thereto.  THIS TIME LIMIT MAY NOT BE EXTENDED EXCEPT BY APPROVAL OF THE COMMISSIONER OF POLICE (emphasis added).”

Two things to appreciate from that clause and to clearly understand is that (A), notice of the event must be given within seven (7) days to the Department per Departmental Rules; and (B), the member has up to seven (7) days to provide the notice of that event.  The seven (7) day deadline differs from the Workers’ Compensation Law which provides for notice to be given up to 30 days from the date of the injury; obviously the Departmental Rule is the one to follow regarding line of duty claims. But, as we noted earlier in this Legal Report, accurate statements might be the difference between a 3/4 Accidental Disability Retirement or getting a 50% Performance of Duty Disability pension, so having to do an accident statement is required.  Take the time to accurately review your initial statement because it is crucial to protecting yourself, as long as it is provided within seven (7) days. And, we make ourselves available to all members and their delegates and trustees in order to help make sure those statements are accurate and that they thoroughly protect each member.

Finally for this Legal Report, we feel it is important to mention Social Security Disability Insurance benefits, which are available to anyone who has accumulated the required number of quarters of coverage (i.e., paid FICA tax) and can demonstrate that (s)he is “ [unable] to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” One of the requirements to establish entitlement to SSDI benefits is that the applicant must not be engaged in “substantial gainful activity,” which means essentially that the applicant is not working. In determining whether work activity amounts to “substantial gainful activity,” an applicant’s earnings will be considered. Payments of other disability benefits (i.e., accidental disability retirement benefits, performance of duty disability retirement benefits, Workers’ Compensation benefits) or accumulated sick/vacation time or royalties or interest on investments or sick pay do not constitute “earnings” so as to disqualify an applicant from receiving SSDI payments. So, if an applicant is disabled within the meaning of the Social Security law and is receiving any of these payments, including the receipt of even full GML Sect. 207-c tax free wages, SSDI benefits may be payable.

As always, you are encouraged to contact Milan Rada, Esq. or John Hewson, Esq.of Fusco, Brandenstein & Rada, P.C., at 516-941-4403 or by e-mail at mrada@fbrlaw.com with any questions, concerns or suggestions, we are always available and happy to assist. We hope that everyone had a very happy and healthy start to the New Year.  Stay safe, but if you do get hurt, let’s hope it’s not serious, but if it is, let it be an “accident” and not an “incident.”