| Richard
W. Lerner, P.C.
S.O.A.
Disability Attorney
1 Old
Country Road, Suite 125, Carle Place, New York 11514
(516)
741-4100
Email:
rlerneresq@yahoo.com
I want to thank the SOA for their
kind wishes I received while recuperating from my recent
surgery. On
February 8, 2010, I was operated on at
Memorial
Sloan
Kettering
Hospital
for a pancreatic tumor.
I am happy to say the surgery was successful, I
will need no further treatment and I have returned to
work full time.
There is no doubt that the New York
State Retirement System, in my opinion, due to the
economic situation has made it more difficult to retire
on disability pensions.
I believe that in the future you will see many
more cases challenged in the Appellate Court.
I recently reviewed a medical
report for one of my clients, who works for the Nassau
County Sheriff’s Department. This report was written
by one of the State’s main consultants.
The doctor indicated the officer would need neck
and back surgery to return to work.
In the past this would have guaranteed
retirement. I
was shocked when my client received a letter to see a
second orthopedist.
I immediately wrote a letter to the
head of the medical board indicating that the medical
board has lost credibility and is now “doctor
shopping”.
It has been three (3) weeks since that letter was
sent and I have not received a response not do I expect
to.
In addition, in a recent decision
received by my office, involved a Port Authority Police
Officer who was exiting his office, took one step to get
out of the door, and slipped on discarded food.
The officer testified that there was no way he
could have seen the food on the steps.
The Judge ruled, because there was a waste can in
the area, where the food was found, that it was not an
accident but an expected event which was an inherent
risk and therefore not an accident as required.
This case is being challenged in the Appellate
Division.
It is my opinion that some of the
Judges are picking up on the Retirement Systems tougher
policies towards granting disability pensions.
It is important to note that the hearing officers
are appointed by the Comptroller are also paid by the
Comptroller. They
are not truly independent.
Most of the attorneys who practice in
New York
State
have complained that they should be actually
independent. In
my opinion this will never change.
I must emphasize how important the
written injury report is in order for the State to
accept accident. The
most sensitive area is assault vs. restraining injuries.
A true assault is deemed an accident. Restraining
is considered an injury in the Performance of Duty and
will not yield an accidental disability pension.
THE IMPORTANCE OF A CORRECT INJURED EMPLOYEE REPORT
The
most important document you will ever fill out and sign
as a Police Officer is known as an injured employee
report.
The “report” is essential for
the following reasons:
1.
It is notice to the employer which protects your
workers compensation claim; and
2.
It is notice the New York State Retirement System
if it is filed within 30 days of injury date.
The paperwork filed post injury
must be signed by a supervisor. THE UNSIGNED REPORT
INVALIDATES NOTICE TO THE NEW YORK STATE RETIREMENT
SYSTEM.
The injury report can mean the
difference between no disability pension, a 50% pension
or a 75% tax free pension.
The Courts have already held that the initial
report has more weight than later sworn testimony.
In order to receive a ¾ pension, an officer must
be injured as a result of an accident in the line of
duty.
The term “accident”
is confusing and has been interpreted by the Courts to
mean a sudden and unexpected, fortuitous happening.
There are cases that are exceptions to the rule.
A trip and fall without an intervening factor is
called a miss-step and is not an accident.
An injury making an arrest, if you refer to
injury as “caused while restraining the perpetrator”
rather and being “assaulted by the perpetrator” you
will receive a lower pension.
Also, there are a group of causes called
“inherent risks”.
If there is a snow storm and you slip on ice when
the ground is covered in ice and snow, this will not be
considered a ¾ injury but rather a performance of
duty.
The New York State Retirement
System requires notice.
The following are ways they will be deemed proper
notice:
1.
If the member notifies the State Retirement
System within the first 30 days;
2.
If the member files a C-3 with the New York State Workers Compensation Board; and
3.
If a properly signed and acknowledged injury
report is filed within 30 days of the injury.
REMEMBER: BE VERY CAREFUL WHEN
FILLING OUT YOUR INJURY REPORT: INCLUDE ALL INJURED BODY
PARTS AND BE SPECIFIC IF IT IS AN ACCIDENT. YOU MAY
THINK IT IS A MINOR INJURY AND IT MAY TURN OUT TO BE
CAREER ENDING.
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