May 2019 Legal Report

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

We recently met with a client who retired on a regular service pension with over 25 years on the job. He had an existing Workers’ Compensation case for an injury he sustained in the late 2000s for which he was still treating, but it likely was not going to be severe enough to prove a permanent disability for purposes of a disability pension.  What we discussed was getting weekly Workers’ Compensation benefits, tax-free, in addition to service retirement benefits.  And based on those injuries and the date of the accident, this member could be entitled to over $700 per week tax-free.  Obviously, that would be a huge boost on top of any service pension.  In addition, the member also wanted to know about submitting an application for Accidental Disability Retirement benefits.

Under certain circumstances, the County will almost always defend against a claim for Workers’ Compensation, citing “voluntary retirement” or  no “attachment to the labor market.” When someone voluntarily retires, the argument is that the person has removed herself or himself from the labor market for reasons other than disability or a work-related accident. The reason could be that it is just plain time to pack it in; the reason could be that the individual has a heart condition (unrelated to work and unrelated to the on the job injury) and her/his doctor is recommending retirement; or, the reason may be to play golf to one’s content. Whatever the reason may be, Workers’ Compensation benefits will be payable only if the line of duty injury is a substantial cause of retirement and ongoing disability. And, it is the applicant’s burden to prove that the line of duty injury caused or contributed to retirement.

How is this burden of proof met? It can only be met with acceptable, competent and relevant medical evidence. The doctor’s office notes should reflect the complaints that are playing a role in retirement. If there is neck pain, the notes should show that. If the neck pain is constant, the doctor’s notes should show that. If the neck pain is frequently severe, the notes should show that. If a collar has been prescribed, the notes should show that and also show the usage of the collar, i.e., always, only when walking, etc.  Further and most important, if the doctor feels the applicant should retire, the notes should show that.  It should also be noted that although not suitable for use within the Department or with the Police Surgeon, evaluations and statements from chiropractors can constitute medical evidence in the Workers’ Compensation system.

This can sound very basic and self-explanatory or to be basic common sense. But, all too often, we have run across situations where a client finds it far easier to speak about her/his disability to friends, and maybe their lawyer than to the doctor.   It is very disheartening to get copies of a doctor’s notes only to find that subjective complaints of pain are not documented; that problems with a range of motion are not mentioned; that claims of sexual dysfunction are not verified; that episodes of incontinence are not noted. It is extremely important for a disability applicant to be open and honest with his/her doctor. Openness with your attorney is essential and important, but without full disclosure to your doctor, you are courting an invitation to disaster in a disability claim.

The term “disability” is a legal concept and term of art, not a medical opinion. Disability means one thing for Workers’ Compensation, another in the Retirement System, and yet another for a Social Security Disability claim. Many people who meet with us confuse “injury” or “impairment” with “disability.” In an Accidental Disability claim (3/4)  “disability” means being permanent “physically or mentally incapacitated for the performance of duty as the natural and proximate result of an accident not caused by his own willful negligence sustained in such service and while actually a member of the policemen’s and firemen’s retirement system.” Compare this definition with the definition of disability for Social Security Disability purposes: “The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted for a continuous period of not less than 12 months.”  There is obviously a major distinction and difference in the disability definitions.

            Another major difference is the level of severity of the disability and how it reflects on the benefits to which a member might be entitled.  For both the Retirement System and Social Security Disability, a member is both disabled and approved, or they are not.  There are no temporary benefits in those systems or a sliding scale of severity such as “partially disabled.”  The Workers’ Compensation system is entirely different.  In comp, you can absolutely have a mild or moderate partial disability which still entitles the injured party to not only medical benefits and coverage but also a bi-weekly check from the insurance carrier in the case.  In the situation of the member that recently came to our office, we are not going to be arguing that the member is “totally” disabled from work under the Workers’ Compensation guidelines because the member’s own treating physician is not saying that.  But, instead, we can still achieve a successful result for the member based on their retirement being caused by or contributed to by the partial disability caused by the work-related accident several years ago.  They will still take their regular service-related pension, but in the comp system, we will look to get them partial comp payments, which are payable for several years into the future based upon that partial disability.  Also, as opposed to Accidental Disability pensions (3/4) where the comp benefits are offset against the pension check, these compensation benefits would be in addition to the member’s regular pension.

            It is also important to note how much the Workers’ Compensation rates have changed over the years.  Slightly over a decade ago, the maximum rate of weekly benefits would have been $400 tax-free.  For injuries occurring after July 1, 2018, the maximum rate of compensation is currently is over $900 per week tax-free.  That means for a member at top pay, even a partial disability rate might be worth as much as approximately $45,000 per year, tax-free, on top of his or her service or performance of duty (50%) pension.  These are the benefits for which we fight for our clients, and obviously, you want to make sure you protect them to the best of your ability.  One misstep, one mistakenly mentioned comment, one comment in a doctor’s report about retiring voluntarily to go travel or go golfing could cost a member several hundred thousand dollars of benefits into the future.  Sitting down with a professional who can protect these benefits before retirement should be part of every member’s retirement plan!

Should you have any questions, or need our services in the areas of Workers’ Compensation, Social Security Disability Benefits, Disability Retirement Benefits, or Medical Review/GML Sect. 207-c benefits or lawsuits against third parties for their negligence in causing you injury, then please call us at 516-941-4403, or e-mail at mrada@fbrlaw.com. Stay safe and let’s resolve that we meet at retirement and holiday parties only. But, in the event of injury, we will provide the very best service and legal representation to protect you and your families.