SOCIAL SECURITY DISABILITY [“SSD”]
ONE–Members must meet certain medical and non-medical rules to qualify.
TWO–Medical evidence is important but is NOT the “be all and end all.” The best medical evidence identifies a member’s residual functional capacity [“RFC”], that is, work-related tasks (job specific and general to all work) that they can and cannot perform.
THREE–Social Security considers the member’s age, education, work history (last 15 years) AND RFC resulting from their physical and emotional problems.
FOUR–A member will NOT get SSD unless we show they cannot work as a police officer AND that there are NO other jobs in the national economy that they can perform given their age, education, work history and RFC.
FIVE–The SSD benefit amount depends on how much the member paid—and how much the employer paid on the member’s behalf–into the Social Security system.
SIX–Minor children of the member—and in some cases the member’s spouse–can collect an auxiliary Social Security benefit over and above what is paid to the member if they are approved for SSD.
SEVEN–Social Security has what is known as the 80% rule. This rule can reduce the amount of SSD paid to the member (and his/her family) if they stand to collect more than 80% of their pre-disability wage when adding together certain specified benefits to the amount of SSD they otherwise would be owed.
EIGHT–Lost income benefits paid under the New York Workers’ Compensation Law ARE subject to the 80% rule. Lost income benefits paid under New York General Municipal Law 207-c (or under an equivalent law like the Rochester City Charter) are NOT subject to the 80% rule.
NINE–Members approved for SSD may participate in Medicare no earlier than 24 months from the first month that they are entitled to collect a SSD benefit. No one is paid a SSD benefit for the first five full months they are unable to work due to disability. Members who wait more than 17 months to apply for SSD may lose money and months of Medicare eligibility
TEN–Members should hire a qualified law firm to represent them in a SSD case. If the member does not win, no legal fee is owed. If the member wins, the legal fee fixed by law is 25% of any lump sum of back benefits paid to the member (and the member’s family) but NOT more than a maximum fee set by law. Right now, the maximum legal fee permitted in a SSD case is $6K.
INDIVIDUAL & NEW YORK STATE POLICE & FIRE RETIREMENT SYSTEM DISABILITY BENEFITS
ONE–Members may have purchased disability insurance on their own or may be eligible for similar benefits as a member of another organization. They also may be entitled to defer or waive their obligation to: (1) repay a student loan; (2) pay personal life insurance policy premiums; and (3) make automobile, mortgage, credit card or other payments. Encourage members to investigate and apply for these benefits ASAP.
TWO–If a member is unable to work as a police officer—and is NOT collecting their full salary under New York General Municipal 207-c or an equivalent law–encourage them to apply for disability retirement benefits from the New York State Police & Fire Retirement System [“PFRS”].
THREE–For members who joined PFRS before January 1, 1985, the two most common disability retirement benefits available are: (1) Section 362 Ordinary (cause of disability does NOT matter) and (2) Section 363 Accidental (cause of disability matters).\
FOUR–To qualify for a Section 362 Ordinary benefit (up to 33.33% of the member’s final average salary), we must prove that the member is “physically or mentally incapacitated for the performance of duty [as a police officer]” AND has (10) or more years of credited pension service.
FIVE–There is no minimum period of credited pension service needed to qualify for a Section 363 Accidental benefit (75% of member’s final average salary). The law does NOT define “accident” as we commonly think of the term. Thus, few members will qualify for this benefit. The Section 363 Accidental benefit is reduced by the amount of WC lost income benefits the member collects.
SIX–For members who joined the PFRS on or after January 1, 1985, there is an additional disability retirement benefit available, that is, Section 363-c Performance of Duty (cause of disability matters).
SEVEN–To qualify for Section 363-c Performance of Duty benefits (50% of member’s final average salary), we must prove that the member is “physically or mentally incapacitated for performance of duty as the natural and proximate result of a disability not caused by his own willful negligence sustained in such service.” This standard is MUCH more liberal than the standard to collect Section 363 Accidental benefits.
EIGHT–The amount of the member’s benefit depends on several factors including their Tier of participation, the amount of money they earned in public service, the type of disability pension they collect and whether they want their loved ones to collect disability retirement benefits after they die.
NINE–THE DEADLINE FOR APPLYING FOR THESE DISABILITY BENEFITS ARE COMPLEX AND CONFUSING. Encourage members to investigate and apply for these benefits ASAP.
TEN–Tread carefully when the member is collecting their full salary under New York General Municipal Law 207-c. If the member is granted a Section 363 Accidental or a Section 363-c Performance of Duty disability retirement benefit, the employer may STOP paying the full salary to the member.
NEW YORK WORKERS’ COMPENSATION [“WC”]
ONE–If your employer participates in the New York WC system, the member is covered for a work-related: (1) injury (aka accident); (2) illness (aka occupational disease); or (3) consequential injury.
TWO–WC provides lost income and medical benefits. THERE IS NO PAYMENT FOR PAIN AND SUFFERING. If the member is unable to work at all due to the injury or illness, the amount of the tax free lost income benefit depends on their: (1) average weekly wage; (2) severity of injury or illness; and (3) date of injury or illness (law sets a maximum lost income benefit depending on that date, e.g., person injured on 07/01/2016 cannot collect >$864.32/week).
THREE–If the member is working (e.g., light duty) but is earning less than their average weekly wage due to the injury or illness, they can collect a “reduced earnings” tax free WC lost income benefit of two-thirds of the wage loss but NOT more than the maximum amount in the law.
FOUR–Average weekly wage includes ONLY the member’s regular earnings in the 52 weeks before the injury or illness. It does not include pension and other employee benefits.
FIVE–WC pays 100% of the cost to treat the illness or injury suffered by the member FOR THE REST OF THE MEMBER’S LIFE. They should incur NO out of pocket expenses for medication or to travel to get medical treatment.
SIX–Unless the member is TOTALLY disabled (100%), they must look for work within their restrictions to remain eligible for WC lost income benefits.
SEVEN–Unless a Judge has ruled that they have a permanent disability, the member must get medical treatment at least once every 90 days to remain eligible for WC lost income benefits.
EIGHT–As part of the WC case, the member will be examined by one or more medical professionals selected by the employer or WC insurance carrier. These doctors can comment on just about any issue in the case, including the severity of disability.
NINE–If the member’s injury or illness is permanent, they may be entitled to additional WC lost income benefits. More specifically, the member may: (1) be classified as having a permanent total or permanent partial disability (usually applies to back and neck injuries); or (2) have a lump sum schedule loss of use award (usually applies to extremity injuries such as carpal tunnel syndrome).
TEN–Members should hire a qualified law firm to represent them in a WC case. If no WC lost income benefits are paid to the member, no legal fee is owed. If WC lost income benefits are paid to the member, the WC Judge determines the amount of legal fee.
PERSONAL INJURY LAWSUITS
ONE–Members injured at work may not sue their employer or a co-worker for a work-related injury or illness, regardless of whether the employer or the co-worker were negligent or acted intentionally.
TWO–Members injured intentionally or by the negligence of a third-party (someone other than their employer or a co-worker) may pursue a personal injury lawsuit against the third party.
THREE–There are strict deadlines about when such lawsuits must be filed. The deadline can depend on the legal theory and who your member is suing.
FOUR–A member injured in an automobile accident usually must file a lawsuit within three years from the date of the accident. However, if the vehicle that injured your member was owned by a governmental entity (not the same entity who employs your member), your member would have to act as soon as 90 days after the date of the accident.
FIVE–In contrast, a member who is assaulted usually must file a lawsuit within one year from the date of the assault. If the member fails to file the lawsuit timely, the case will be dismissed no matter how strong it may be.
SIX–A member who wins a personal injury lawsuit may collect some or all of the following damages: (1) lost wages and benefits from the date of the accident until the date of the verdict; (2) lost wages and benefits from the date of the verdict until the future date when the member would have retired; (3) medical expenses from the date of the accident until the date of the verdict; (4) medical expenses from the date of the verdict until the future date when the member would be expected to die; (5) pain and suffering from the date of the accident until the date of the verdict; and (6) pain and suffering from the date of the verdict until the future date when the member would be expected to die.
SEVEN–There is NO tax owed by a member who wins a personal injury lawsuit regardless of whether they settle the case or get a verdict.
EIGHT–New York General Municipal Law 207-c and WC lost income and medical benefits are provided regardless of whether the member or someone else were at fault for the work-related injury or illness. If the member wins a personal injury lawsuit, they stand to recover lost income and medical benefits that they received already. To avoid a double recovery, your member will have to pay back a portion of the lost income and medical benefits that they received if they win a personal injury lawsuit. This is known as lien rights.
NINE–Winning a personal injury lawsuit can affect the member’s right to collect lost income and medical benefits in the future. This is known as holiday rights
TEN–Lien and holiday rights are VERY complicated. Members should hire a qualified law firm to represent them in a personal injury lawsuit, preferably one who understands WC and New York General Municipal Law 207-c.
HELPFUL WEB RESOURCES FOR POLICE UNION LEADERS
Social Security Administration [“SSA”]: www.ssa.gov
SSA Handbook–SSD Chapter: https://www.ssa.gov/OP_Home/handbook/handbook.05/handbook-toc05.html
SSD Practical Advice: http://modicalawfirm.com/social-security-disability/
PFRS Generally: http://osc.state.ny.us/retire/
PFRS Practical Advice: http://modicalawfirm.com/nys-retirement-system-disability-pension-benefits/
New York WC Board [“WCB”]: http://www.wcb.ny.gov/
WCB–Injured Workers: http://www.wcb.ny.gov/content/main/Workers/Workers.jsp
WC Practical Advice: http://modicalawfirm.com/workers-compensation-advice/
Personal Injury Practical Advice: http://modicalawfirm.com/personal-injury-litigation-advice/