March 2017 Legal Report

Legal Report by Milan Rada, Esq. with John Hewson, Esq. Recently a police officer called to tell us that he tweaked his back getting out of his police car one morning when he lost his footing on some ice. He had an older line of duty aided number for a prior back injury and he was unsure of what to do regarding this new aggravation. He called his delegate who gave him our number, and the police officer called for some advice a few hours later. By this time, he told us that his back was tightening up and he was considering doing a “non-recordable” report and playing the “wait and see” game. This is an example of what can be done after a line of duty injury but it is definitely not the best action to take. It is far more preferable to complete a full aided packet.

The member did the perfect thing seeking advice. In this situation, especially in light of the fact that trying to claim a recurrence on the older aided number might be difficult because of the current climate of the Police Surgeon’s office, the member should file a new full aided packet, not a “non-recordable” one. Filing a full aided packet will generate an aided number and will also compel the Department to complete required Workers’ Compensation forms and will also assure that the police officer gets prompt medical attention,  including all tests required to make a proper diagnosis.

Of course, concerns were raised by following the procedure of filing a new aided packet for an injury to a part of the body that was previously injured.  First, the officer was under the misleading impression that by filing a new packet it would require him to miss work. Just because a new aided packet is filed does not mean that the officer is advising the Department that he or she plans on missing time due to the injury. Rather, an aided report simply puts the Department on notice that an injury occurred and is, in fact consistent with the requirements set forth in the Department Manuel. Second, and definitely very significantly, the discussion turned to whether this would be an “accident” or an “incident” and whether filing the new packet would jeopardize a prior “accidental injury.” This is a legitimate concern and the answer is complicated.

It is obvious that an officer may sustain a line of duty injury at any time. Some injuries are career ending, but the vast majority of them, fortunately, do not cause an injury that permanently incapacitates the officer from performing full police duty. Whether a line of duty injury ends an officer’s career or does not, the officer will get all the medical treatment he or she requires, and in the case of an injury that is not career ending, treatment geared to returning the officer to full duty. However, if later on the officer suffers another injury to the same body part, the officer is most likely predisposed to having a much more serious condition, or one from which it is more difficult to recover. In this scenario, if the officer were to file for a disability retirement, it is far more likely that the Retirement System will rely on the second event as the causative reason for the disability as opposed to the first bonafide “accident” years earlier. If that second event was an “incident” as opposed to an “accident”, then the officer would almost assuredly receive only a Performance of Duty or 50% of final average salary disability retirement pension.

So the question that comes up often is should that officer even file a new injury report if it puts the initial “accidental” event in jeopardy? Unfortunately, the answer in the vast majority of circumstances is that the officer should file a new injury packet if a new event occurred regardless of whether it is an “accident or “incident”.

The logic for this comes down to a realistic approach to the different types of cases that we handle in our office. Obviously, we would prefer that every officer receive a “3/4,” Accidental Disability Retirement pension for any career-ending injury suffered on the job, as opposed to a “1/2,” Performance of Duty Disability Retirement pension. As you well know, the Retirement System does not share our preference. But, for practical reasons, it is in the officers’ best interests to make sure they cover themselves sufficiently at the time any injury occurs. In the scenario noted above, the officer could try to file his new back injury as a recurrence of the older line of duty claim. In all likelihood, the Police Surgeon would deny that recurrence as being too remote to be connected to the older claim. At this point, the member would have the right to file for Medical Review with the hope that he or she prevails on that issue. In the meantime, the officer might be going without the medical treatment he or she needs in the short term to avoid any long-term damage caused by the injury and any delay in diagnostic testing and medical treatment. In addition, the reality is that the officer DID suffer a new event, a new injury. We might not like how the Retirement System characterizes it as an “incident,” but losing one’s footing on ice and aggravating an underlying back condition is a new event.

The other point to be made under this scenario is that regardless of the method of the new injury, Workers’ Compensation and General Municipal Law (GML), Section 207-c will always treat the new event as a new injury. So, if the member loses time from work due to an aggravation of a pre-existing condition, he or she will receive full salary under GML Section 207-c, and if he or she ultimately ends up with only a 50% Performance of Duty Disability Retirement pension because of the event, we would also obtain Workers’ Compensation benefits for the officer on top of the 50% pension. Once again, a Performance of Duty Disability Retirement pension is not the ideal reward for the officer, but protecting his/her rights under the new injury does take many of the risks off of the table such as losing Medical Review and having to burn his or her own sick accruals due to the injury.

As always, our goal is to make sure our clients are best informed of their rights before making these career-defining choices. This scenario illustrates perfectly how a relatively minor event in the early morning can set an officer down several different paths. As your PBA disability counsel, we are a resource for each and every officer to use whenever these situations arise. As the officer discussed above, who slipped on the ice did, call your delegates when something occurs. Further, call us if you have any questions. Every consultation, always, is free and we are happy to meet with any member any time to discuss the best available options. There is no reason not to take advantage of our firm as your best resource for disability and injury matters.

If you have any questions about this article or any other disability-related legal issues that may be on your mind, contact us anytime at 516-941-4403 or by e-mail at mrada@fbrlaw.com.