May 2016 Legal Report

Legal Report

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

Every case comes with its own hurdles, and even with the best set of facts, one of those hurdles can very easily destroy any chance of receiving a benefit to which an injured officer would otherwise be entitled. Our goal is to educate members of the Department in order to avoid loss of a disability pension because of failure to follow rules. Overcoming those hurdles and beating the Retirement System is quite often where we do our best and most gratifying work. Over the past several months we have written many Legal Report articles discussing the most common mistakes that are made by members before they even step into our office to discuss their potential claims. Recently, we had a case where one of those mistakes looked to possibly ruin an otherwise perfectly viable 3/4 (Accidental Disability) claim. In fact, we had several consultations with this officer wherein we discussed the possibility that a disability pension claim would not be awarded simply because the member had performed far too much overtime than permitted while on restricted assignment.

For purposes of a brief review, if an officer performs more than 100 hours of overtime in any 12 month period of time while assigned to restricted assignment and that officer then submits an application for disability retirement benefits, that officer will now have to prove he or she is incapable of performing the light or restricted duties he/she has been performing, as opposed to proving that he/she can no longer perform the full duties of the job. Clearly, it is far more difficult to prove permanent disability against the light duty standard. For this main reason, we stress the importance of minimizing the amount of overtime performed while on restricted assignment in order to avoid this nearly insurmountable hurdle later in the claim. And, unfortunately, the Retirement System still takes the position that overtime is overtime, so there is no difference between compelled or built-in overtime versus voluntary overtime. Therefore, it all counts.

In the situation we recently dealt with, the case was clearly going to be decided against the light duty standard, which tends to be a very difficult standard to overcome. But we were successful! As a result of the difficult situation presented, we were forced to develop the case in an entirely different manner with a greater emphasis on the ability to perform desk assignments rather than the commonly known full job duties of a police officer. Thankfully, the client’s doctors were able to stress the severity of the disability and explain the restrictions in such a way that the Retirement System agreed.

We absolutely would not advise doing this but as you can see, hurdles are not impossible to overcome. Far too often, we encounter clients that when told of the potential risks and hurdles in the case they immediately become conditioned to believe there is no shot at winning. Even worse, they may decide to retain an attorney who is not the PBA’s designated, official disability attorney, and who may not have the extensive experience and excellent track record of the PBA’s disability counsel. Such members may discover the case is not as easy as the other attorney made it out to be despite payment of a significant retainer. We, however, are on retainer with the PBA and provide our services to members at a fee so attractive that one of our former police clients described it as “the best buy in America.” We strive to present all the potential risks to our clients because we would not be doing our job properly if we swept those issues under the rug. We have ways of developing cases to address different hurdles, but minimizing potential hurdles in a claim to our clients is not in our clients’ best interests. We prefer to work with an “educated consumer.”

This is the perfect spot to transition to the next point that needs to be stressed – documentation is absolutely key to disability claims – Workers’ Compensation claims, Social Security claims, Personal Injury claims and Veterans’ disability claims, in addition to NYS Disability Pension claims. We see clients from many different departments in the tri-state area, and the importance of documentation is universal. Thankfully, we can see from the drafting of accident reports and the care with which they are usually, but not always, prepared that our message continues to resonate within the Nassau County Police Department. The PBA leadership and delegates have done a fantastic job of helping their fellow members when they are injured and protecting them in the best ways possible. We can comment on this with no hesitation because when we review the accident descriptions from officers in other jurisdictions, all too frequently the reports are not done with the same care as the ones completed by members of the NCPD. We take great pride in knowing that the hard working members of the Nassau County Police Department continue to be among the most knowledgeable clients that our office deals with on a regular basis. Properly drafting injury reports is crucial to these claims, so if there is any question with how to draft an accident report, in order to make sure that all the relevant issues are presented, please do not hesitate to contact your delegate or our office as soon as possible after the injury. You must be alert to the requirement that the job requires you to report an injury within seven (7) days in order to protect your I- number (line of duty) status.

The importance of documenting your injuries could not be more important given the current climate at the Department regarding injuries. We are seeing more injuries that are either questioned or denied line of duty status even to members who have legitimate line of duty injuries. Many of these disputes arise simply because the paperwork was either done too late, carelessly or submitted missing relevant information. Please keep in mind that our constant advice in the case of an injury is to document it as soon as possible after the injury occurs. In addition, we also believe that a full injury packet should be done within the seven (7) days mentioned above in order to avoid the problems that undoubtedly will occur when “non-recordables” are completed. We stress again that the Departmental Manual requires an injury to be reported within seven (7) days of occurrence, and even if believed to be minor, we want every officer to be best protected should that injury become career-threatening down the line.

Please keep in mind that we are here to answer each and every question that you may have regarding these issues or any other disability related issues that might come up. We are privileged to represent you, your families, and your friends in every way possible, and we do not stop fighting for our clients and the benefits to which they are entitled. If you have any questions or become injured, please never hesitate to contact us at 516-941-4403 or by email at mrada@fbrlaw.com.