WALSH, MARKUS, MCDOUGAL & DEBELLIS, LLP Counselors at Law 229 Seventh Street, Suite 200 Garden City, NY 11530 Phone: 516-408-9000 Fax: 516-747-0825 Dennis Barry, of Counsel Kevin Walsh (516) 317-2024 (516) 860-7592 Dbarry4@gmail.com Kwalsh@walshcounsel.com Dennis Barry: Retired Deputy C.O. of Homicide Squad, after more than 35 years of service with the Nassau County Police Department. Counsel to the Nassau County DAI Kevin Walsh: Managing Partner Counsel to NCPD Federal Credit Union General Practice Firm with focus on Real Estate, Zoning, Wills-Trusts & Estates, Personal Injury and Business Matters. FREE HOUSE CLOSINGS AND WILLS FOR ACTIVE DAI MEMBERS. 28
By: Milan Rada Esq., with John Hewson, Esq. LEGAL REPORT For many of you who have spoken to me after getting injured or after speaking with Chris Muchow or anyone on the D.A.I. Board after getting injured, you can see how diligently we take the process of writing accident reports and the language that is included (or not included) in them. You have also seen me write in the past about the importance of having comprehensive and fully accurate accident descriptions in the initial injury packets that will get submitted to the Department. This, of course is not by accident. It is simply because on a virtual daily basis, I am questioned about whether this injury or that injury can get a member 3/4 pension benefits. And the sad answer seems to always be – what does that initial accident report state? And then the next discussion turns into a lecture about accident vs. incident, and the way the Retirement System looks at cases especially after the 2018 Court of Appeals decision in Matter of Kelly. In Kelly, the Court of Appeals took up the situation of an Orangetown police officer who was injured while performing incredibly heroic, lifesaving rescues when a tree collapsed onto and into a house during the height of Superstorm Sandy. A tree landed onto the house, partially collapsed the structure, and impaled one of the homeowners driving the person into the basement of the house where other family members also became trapped. As he passed the house, the officer sprung into action with the help of another passing officer. Together they ran into the home in order to rescue the remaining members of the household. The police officer held up falling beams and debris in the house as the other officer helped pull people from the debris until the fire department arrived to complete the rescue. As a result, the police officer suffered career ending injuries to his shoulder and neck. For those of you who have been at D.A.I. open meetings, you have heard me speak about this case on several occasions. Clearly, under those circumstances, we can all agree that this police officer should be entitled to Accidental Disability benefits. In fact, at a different level in the claim, the hearing officer for the Retirement System also agreed, but the Comptroller overruled the Hearing Officer and denied the “accident”. No one would dispute that these events would constitute something “unexpected, out of the ordinary, and injurious in impact” as required under the case law that every court cites to in these cases. However, this officer was denied his 3/4 Accidental Disability benefit by the Court of Appeals. How could this possibly happen? The Court of Appeals attempted to address this issue and draw comparisons to past cases where it had denied “accidents.” The Court stated that the officer must have been injured as a result of a precipitating accidental event that was not a risk of the work performed, and that the officer was acting within the scope of his ordinary job duties. Further, the Court believed that the standard on “accident” cases for the future would be whatever those ordinary job duties are for a given job title. Based on this logic almost nothing would be an “accident” for a police officer. With Kelly, the Court stated that responding to emergencies is an “ordinary duty of a police officer” and being directed to respond to life-threatening emergencies is a part of such ordinary police duties. Interestingly however, the majority decision also notes that the opposite outcome finding this to be an accident would also have been a reasonable, and thus logical, conclusion. As we noted in a prior article after this case was decided, there was a lengthy and articulate dissent in the case as well. The dissent quite pointedly called out past decisions as essentially arbitrary and seeming to operate in a “Wild West” environment. They are not wrong. As your disability counsel, decisions such as Kelly always resonate and cause us to have major internal discussions as to how we can best protect the members of the DAI going forward. Unless there are significant changes to the way an “accident” is defined under the statute, we unfortunately must operate on these cases in a landscape where the Kelly decision looms. But, we do believe there are major lessons that need to be taken away from the Kelly decision, and most of those lessons are ones that we have shared in the past and topics on which we have lectured for a long time. Quite frankly, despite our position that what occurred should very often be considered accidental, we respectfully believe that many of the problems that occur on cases such as Kelly start initially with the accident report and description of the events. As we have written for years, documentation and accurate, detailed descriptions of injuries are the heart of any of these cases. A poorly drafted accident report can easily turn a viable 3/4 claim into one that leads to a 50% Performance of Duty claim instead. That is the exact reason why, when a member is injured, we continually remind you of the fact that the Department Manual provides you with seven days to file your accident report. Regardless of how much pressure is placed upon you by a supervisor, it is very rarely in your best interest to file a report right away after the event in question. If that report is rushed, it is very easy to overlook many of the important details that might make the injury the result of an “accidental” event as opposed to being determined to result from an “ordinary job duty” incident. Without knowing the inner workings of the Orangetown Police Department and its accident reporting procedures, it would not surprise us to find out that the accident report filed by Officer Kelly was done quickly and without much review by Officer Kelly, his delegate, or their legal counsel. While not every event is going to constitute an “accident”, a better drafted accident report might have led to a different result. If the report was drafted simply with the extreme, exigent circumstances as the backdrop to Officer Kelly’s injuries, but he was hurt while lifting debris and holding up rafters in the house, then the actions that caused his injury are exactly the same as a Nassau Detective that might be injured lifting evidence at a scene or back in headquarters. And as we know, lifting injuries are typically not an “accident”. However, if Officer Kelly was really injured as a result of being struck by falling beams and debris, or the house collapsing around him caused further aggravation of his injuries, not only should those facts be in the accident report, but, if true, would most likely have led to a different outcome. As you can see, we are incredibly passionate about the fact that the accident report is most likely the single most important piece of information that goes into an accidental disability claim. Please do not allow a simple oversight to be the reason that you do not protect your ability to get a 3/4 disability benefit after an injury. Speak to your trustees or delegates when you are injured so reports are drafted timely, accurately and comprehensively. Further, I have recently also started to emphasize the importance of the accident description on the initial C-3 forms for Workers’ Compensation as well. This came from experience where a member was at a hearing for their pension claim and the attorney for the state attempted to purport some discrepancy between the Incident/Accident Statement of the member and the initial description on the C-3 form for the accompanying compensation claim. That line of questioning went nowhere simply because the two forms essentially matched up perfectly because the member contacted our office and we were involved from step one in drafting both of them. That fact completely undercut the state’s position on the member’s credibility. After the hearing, I had a discussion with the attorney for the state who had indicated to me that he had caught other applicant’s with discrepancies in the reports and it was an area that the Retirement System was focusing on because they found that applicant’s that either did their own compensation forms or were using representatives that were unaware of the importance of that initial wording were using oversimplified accident descriptions that were acceptable to compensation but simply would not be 3/4 “accidents” in the pension system. So those forms have come back to haunt those applicants unfortunately, and it is yet another example of the importance of those initial documents. And, of course, we are always available to trustees, delegates and injured members to assist in any way, particularly if you’re not able to reach DAI members. But if you have any questions about this article, or any other disability related topic, please never hesitate to call us at 516-941-4403 or by e-mail at mrada@ fbrlaw.com. It is always our honor to represent the brave, hard working members of the Nassau DAI. Please stay safe and enjoy the summer. 29
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