January 2021 Legal Report

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

All members should already be aware of the Medical Review procedure that exists to challenge a decision of the Department’s Police Surgeons on several issues. However, it is always important, especially at the beginning of a new year to remind you of the process. For starters, this is a right of each member of the PBA, and it warrants a reminder that simply because the Police Surgeon “orders” a member on a medical issue, that does not mean that the order cannot be challenged. Although meeting with the Police Surgeon due to an injury or illness can be an intimidating situation and a member might feel like he or she has no choice, that is obviously not the case. So, as we say on a regular basis in The Legal Report, make sure that you keep your PBA delegates and/or trustees in the loop when you are sick or hurt. They will be able to advise you appropriately regarding your rights including your rights to Medical Review.

The Memorandum of Understanding, agreed to by the PBA and the Police Department and ratified on March 25, 1993, created a Medical Review procedure to be used in several instances. These instances include (a) whether a police officer can work in either a full or restricted duty capacity; (b) an officer’s ability to work within his or her physical limitations while at work; (c) whether a specific condition constitutes recurrence of a previously sustained line of duty injury; (d) whether an illness or injury was sustained in the line of duty; and (e) the length of time it may be necessary for a member’s disability to resolve.

The starting point for any of these situations is that there be disagreement between the police officer and the Police Surgeon. Quite often we will receive a call from a member that he/she went to the Surgeon, and the Surgeon told them that they cannot give them line of duty status or that they have to put the member back to work on restricted duty. We often disagree with the idea that they “have to” do something or “cannot” do something else. It is more accurately a situation where they “will not” do or “grant” something. But that is within their rights as well. It is okay for there to be disagreement if the subsequent process is followed fairly by all parties.

If the result is disagreement, we advise all members that it is not a situation that should immediately become confrontational or adversarial. The negotiated process was put in place over 25 years ago to deal with the disagreement. We tell clients at that point to simply state that his or her doctor is telling them something different, and they want to avail themselves of the Medical Review process. This is when the formal request for Medical Review takes place with the Medical Administration Office (MAO). Also, when a member requests Medical Review, he/she should immediately inform his/her PBA delegate and/or their trustee because the process will involve the PBA as well as the Department. If we are unaware of someone going through Medical Review (which surprisingly happens more times than we like), the PBA and our office cannot advise the member appropriately. As disability counsel to the PBA, we play a significant role in the process. If we are not aware that you are going through the Medical Review process, we cannot advocate on your behalf. For example, all the medical evidence favorable to you might not be considered if we do not participate.

Once Medical Review is requested, the procedure dictated by the Memorandum of Understanding is that a telephone conversation take place between the Police Surgeon and the member’s physician to see if the two can reach agreement on the issue. Be aware that your doctor will get this call, so it is very important that your doctor is made aware of this fact. If the member’s physician and the Police Surgeon agree, then Medical Review is over. Obviously if there is agreement that the injury was sustained in the line of duty, then the officer’s line of duty status is approved. If there is agreement that the injury did not occur in the line of duty, the officer is denied line of duty status. We do not have actual statistics, but based on our anecdotal experience with these matters, often the doctors are unable to reach an agreement. The next step is that an appointment is made for the officer to visit “a neutral third-party doctor,” who after examining the officer and reviewing all pertinent medical records will make a written recommendation to the Commissioner of Police. In the absence of including us in the Medical Review process, the Police Department alone will submit medical records to the neutral third-party doctor, which is detrimental to the police officer’s case. Further, the Police Surgeon, or MAO, will provide a written report to the neutral third-party doctor of its evaluation of the case. If we are not consulted by the police officer who has requested Medical Review, or by that officer’s delegate or trustee, we cannot provide the police officer’s position of his/her case and relate the medical evidence to that position. It is obvious that if the police officer does not submit an evaluation of his/her case to the neutral third-party doctor, he/she is at a distinct disadvantage at this stage of Medical Review.

Over time, attrition left us with only one doctor remaining on the list of neutral doctors agreed to by the PBA and the Department many years ago. After some negotiation, the PBA and the Department were able to agree on a new list of doctors in a wide array of medical specialties to address Medical Reviews going forward. As compared to the Workers’ Compensation IME process whose doctor is paid for entirely by the County and is not “independent” as the name might suggest, the neutral third-party doctor is presumably completely neutral and independent because the doctor’s fee is split equally between the PBA and the Department. Thus, we can compile all the medical evidence relevant to the determination in conjunction with the Department to make sure that ALL evidence is presented to the neutral doctor, not just the Police Surgeon’s opinion and evidence.

The beauty of this contractual process is that the decision of the neutral third-party doctor should be the final determination on this issue, for better or for worse. Granted, the Commissioner can adopt the opinion of the neutral third-party doctor or not, so the reason for the MOU is to alleviate the Commissioner from making a medical determination on a medical issue. Therefore, the doctor should be making the decision, so that opinion is usually the final step in the process. Occasionally, the neutral third-party doctor’s opinion does leave some remaining questions which should then lead to further discussion between the PBA and MAO on a particular issue. For this reason, making sure that your representatives are involved in the process is important because otherwise they cannot continue to advocate for the position that best protects the member. You should be aware that recently, after the neutral third-party doctor sent a very favorable (to the police officer) report to the Commissioner, MAO then sent a video to the neutral third-party doctor to see if the video changed the doctor’s opinion in any way. To his credit, the doctor was not intimidated by the two (2) detectives that brought the video and did not change his opinion in any meaningful way. We have noted the process should be fair, which means that all existing medical and non-medical evidence is to be sent to the neutral third-party doctor prior to the police officer’s appointment. In this case the video existed well before the member went to the examination, but was not shown to the doctor until AFTER the doctor submitted his report. The Medical Review process provides that ONLY NEW is to be submitted to the neutral third-party doctor. This should clearly demonstrate the importance of our involvement in the Medical Review process.

As always, we wish you all the best and a safe beginning to the New Year. However, we know the realities of the job, and injuries will occur. The key to this article is to know that if there is disagreement with the Police Surgeon such as they tell you that they “have” to put you back to work on restricted assignment, and your doctor disagrees and believes that you need to be home entirely to recover, you absolutely have the right to push back on that Police Surgeon’s opinion and by availing yourself of Medical Review!

Please stay safe, and if you have any questions about this topic or any other topics involving injuries, such as Worker’s Compensation, disability retirement benefits, Social Security disability benefits, Veterans’ Disability benefits or personal injury negligence lawsuits, please do not hesitate to contact us at 516-941-4403 or 516-941-4404 or by e-mail at mrada@fbrlaw.com or jhewson@fbrlaw.com. Enjoy the start to what we hope will be a much better 2021and do not forget your honey on Valentine’s Day.