March 2018 Legal Report

Legal Report

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

An interesting position has been percolating in the evaluation of injury and disability by the Police Department and the NYS Police and Fire Retirement System over the past year to year and one-half: this position involves connecting injuries and disabilities to a specific (and usually older) date of injury. In the world of disability law we call this issue “causal relationship”.  Causal relationship is an issue that permeates Workers’ Compensation claims, disability pension claims, and claims for line-of-duty injury status with the Police Department. Therefore, it is obviously an issue that needs to be addressed, especially in light of the litigation that we have been involved in because of the issue of “causal relationship.”In claims for ¾ or ½ of final average salary the Retirement and Social Security Law presents the issue as follows: “[Being] Physically or mentally incapacitated for performance of duty as the natural and proximate result of an accident [or incident, respectively] not caused by his [the applicant’s] own willful negligence . . . .”

Causal relationship is the connection between a work related event and the ultimate injury.  If you are in a motor vehicle accident and, as a result, injure your back, then there is a causal relationship between your back injury and that car accident.  In order to qualify for line-of-duty injury status under General Municipal Law, Section 207-c, there must be a causal relationship, or causality, between the event and the injury.  If there is no causality, then the line-of-duty injury will be rejected and the member will need to burn his or her own sick accruals if out of work due to the injury.  As it relates to line-of-duty claims, there must also be causality between an injury and any recurrence claim as well.  This is where we have seen the biggest pushback by the Police Surgeons and the Department.  In the example above, if that member has the car accident, injures his or her back, and then goes back to work, the causality still exists.  However, what if the member wants to go back out on that back injury and that “I” number four (4) years later?  If the member wishes to do so, he or she still must prove that the back injury is still causally connected to the car accident from four (4) years earlier.  And, of course, the Department and the Police Surgeons will not take the member’s or our word for it.  Thus, in that case, we need the treating doctor to provide as much medical evidence and medically supported opinion as possible to show that the recurrence of the back injury is still related to the car accident from four (4) years earlier.  This does not guarantee that the Police Surgeons will accept the treating doctor’s opinion (and, in fact, typically they do not), but without that treating physician’s opinion, the member will have no grounds to stand on when they request medical review or a GML Sect. 207-c hearing.

Our recent experience has also shown that this issue has become almost the pet topic of the past year or two with the Retirement System as well.  On many occasions, we are seeing the Retirement System’s medical experts, or the State Doctors, concede that the member is permanently disabled from the full duties of the job of a police officer. Despite this finding of permanent disability by its own medical experts, the Retirement System does an end run around this opinion and manages to deny the disability application on the basis that the disability is not causally related to the injury claimed on the application, or that the disability is merely related to age-related degeneration over time. Further, in the vast majority of cases, the State Doctor provides almost no alternative explanation for the disability, stating simply that the disability is not related to the accident or incident.

Unfortunately, the Retirement System, despite perhaps knowing that this opinion might be hollow in many ways, still rejects the application and adopts the opinion of its own medical consultant.  At this point, we request a hearing on this issue and challenge the determination of the Retirement System before a hearing officer.  Thankfully, there have been several cases decided in our favor on this issue, but the time and expense (and frustration) can be taxing.

Therefore, the point of this discussion is to make the membership aware of another potential pitfall that exists with an injury claim.  Unfortunately, what seems obvious to both you and us, very rarely seems obvious to the agency or Department.  Also, they very well may be turning a blind eye to it simply because it is not in their best interests to accept the claims or the recurrences.  So, the best way to combat this issue is to make sure that you are always discussing with your doctors whether or not they will be supportive that an ongoing injury is still related to the event or accident in question.  If we can make sure that our own treating sources are in our corner, then we can better combat the issues that the job and the Retirement System will raise later on.

In addition, it is also worth mentioning that simply because a period of time has passed between an event and the recurrence does not mean that they are no longer related.  It simply comes down to what the perspective of the person making the decision might be.  Thus, it is not entirely unexpected that the Police Surgeon and the Department would not find the injury to still be related.  However, despite questionable information that has been reported by some sources, there is no hard and fast rule as to how much time must pass before a line of duty claim goes “stale”.  We have been told many times by clients that they have been told that if you do not use the “I” number for two years then the claim is dead.  This is not true.  The issue is still whether the injury is still causally connected to the event that first caused the problem.  Therefore, if there is no intervening accident, and there has been intermittent treatment, the treating doctor can offer an educated opinion on why it is still connected and the member will always have an argument that the claim should still remain open. The intermittent treatment must be provided by a physician, an M.D., since the Department does not recognize chiropractors, nurse practitioners or physician’s assistants as “physicians.” However, if the member has had an intervening accident(s) between the claimed accident and the recurrence, of course questions will be raised about the continuing connection between the first event and the injury.  There simply is no hard and fast rule on this, and each claim must be taken on a case by case basis.

For this reason, and for many others, we are always available to help and answer any questions.  Every consultation is without charge, and we are always honored and privileged to assist every member and his or her family and friends with their legal needs.  Please contact us at 516-941-4403, or by e-mail at mrada@fbrlaw.com, if any of our services are needed.  Until next month, stay safe . . .  .