March 2016 Legal Report

Legal Report

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

We are experiencing significant changes in every area of life: technology, transportation, entertainment, communication, and law enforcement, to name just a few. The practice of medicine is no exception as changes, for example, in the delivery of medical care are directly impacting disability cases and line of duty injuries. However, despite fundamental changes that we see in our everyday lives concerning the evolution in the practice of medicine, we need to stress the lack of fundamental change in the world of disability cases.
As you are aware, when a police officer suffers an injury while on duty and that injury leads to the officer missing time from work, the Police Department will require that member to provide a “physician’s” note documenting the injury as well as the diagnosis, prognosis, and treatment provided. Similarly, if a member suffers a recurrence of a prior injury, the Department also requires a “physician’s” note in order to document the recurrence. However, the term “physician” is not defined in the Department Manual, or in the March 25, 1993 Memorandum Of Understanding or in the collective bargaining agreement.

In the context of the medical world today, the term “physician” may be murkier than ever.It is common for an officer who suffers an injury on the job to call up his treating doctor’s office, most usually an orthopedist or neurologist, to schedule an appointment for evaluation and treatment, only to be told that the earliest appointment might not be for several weeks. This is especially true with the most accomplished and recommended doctors in the area. This dilemma is further exacerbated by the fact that the Department will require a “physician’s” note as soon as the member will miss his or her third tour of duty due to the illness or injury. As an alternative, we learn that members visit their own primary care doctor, usually an internist or family doctor, in order to get that note, but more and more frequently those family doctors’ offices are staffed by physician assistants (PAs) or nurse practitioners (NPs). Incredibly, although the use of PAs and NPs is recognized for providing excellent care and is becoming more and more widespread, these medical professionals do not constitute “physicians” for the purposes of providing medical evidence to the Department for line of duty injuries or recurrences. Thus, if the only evidence that can be provided is a note from the treating PA or NP, who work under the supervision of a physician, the Department will deny line of duty status or recurrence status to the police officer, necessitating the member to burn his or her own accruals as opposed to being granted GML Sec. 207-c or line of duty pay status. In this scenario the member would then request a Medical Review/Sec. 207-c proceeding, during which time the member will not lose any sick time from his/her accruals. Although it sounds grossly unrealistic, despite the explosion of PAs and NPs throughout modern medical practices and that they can, and do, provide quality care to their patients, they do not satisfy the Department’s definition of a “physician.” The Department’s position is that a “physician” is a doctor of medicine (M.D.), which is an extremely narrow and short sighted definition in light of how the practice of medicine is rapidly changing.

Podiatrists and chiropractors are also in the same boat as PAs and NPs. Despite having hospital privileges and a noted specialty in the care of ankle and foot injuries, and performing surgeries, podiatrists are treated with the same broad brush, and as a result, members need to keep in mind that the care of an orthopedist (M.D.), will be required (often times in conjunction with that of the podiatrist) in order to satisfy the Department’s evidentiary requirements. The same holds true for chiropractors, but this has been more commonly known for years.
This dilemma is not only centered with the Department or with line of duty injuries. Other areas of disability law are just as slowly evolving on this issue. In Workers’ Compensation, the notes or forms of a PA or NP must also be signed by a supervising medical doctor in order to be valid. Further, proposed amendments to the Workers’ Compensation Law would only now acknowledge the medical specialty of podiatry as suitable for medical opinions although they have provided treatment under the compensation system for years. These same facts hold true in other disability disciplines such as Social Security Disability and New York State Disability Pensions where these systems also put a premium on the opinions of a medical doctor (“physician”) while giving less weight and credibility to the opinions of a PA, NP, chiropractor, or podiatrist.

The moral to this issue is this: until the Office of the Chief Surgeon and MAO enter the 21st. century and come to grips with the changes in the way medicine is being practiced, any member who is injured must have that injury documented by a medical doctor (an M.D., a “physician”) in order to best protect his or her line of duty or recurrence status. This means that in the event of an injury or recurrence where your treating doctor’s office tells you that you cannot schedule an appointment for several weeks, you should seek care with your primary care doctor (M.D.) as soon as possible, and if this is not feasible, you should visit an urgent care facility or hospital emergency department and make sure that you are seen and evaluated by a medical doctor, not a nurse practitioner, not a physician’s assistant and not a podiatrist. Most likely, there will not be any chiropractor in the emergency room.

For a change, in a turn of good news from the Appellate Division, an excellent decision was recently made that will have ramifications for all police officers throughout New York State. The further good news is that this case involves a Nassau County Police Lieutenant who was unable to perform the full duties of his job title but was capable of doing the restricted duties of the position. In short, this case is about a supervising, administrative Police Lieutenant whose duties involved both patrol duties in addition to his administrative and supervisory duties. Unfortunately, the Retirement System took the absurd position that although the member was definitely disabled from the patrol duties of his job title, his role was really mostly administrative in nature, and thus, the application should be denied on medical grounds, ie., that he was not disabled from performing his admin duties. The Retirement System’s position was further bolstered by an equally shocking decision from the Hearing Officer in the matter, despite compelling testimony from both the member as well as the Chief of Patrol as to the extensive and sometimes dangerous patrol functions that the Lieutenant would encounter. To its credit, the Appellate Division saw through these unreasonable nuances and further cemented the precedent that if a police officer’s position requires him/her to be engaged in full patrol duties at any time, if that officer can prove within a reasonable degree of medical certainty that he or she cannot perform those full duties ever again, then the application for ¾ disability benefits should be granted regardless of the other functions that officer may be able to perform. It is truly an overwhelmingly positive, correct and just decision for police officers throughout New York State.

As always, if you need our office for any questions or concerns, feel free to call us at 516-941-4413 or by email at mrada@fbrlaw.com.