By: Sean Patrick Riordan, Esq.
The New York State Retirement System has recently, and radically, changed its disability program and this change comes at the expense of its members. Based on an internal Medical Board decision, the Retirement System can now require a member to undergo a single-level cervical or lumbar fusion surgery prior to being approved for a disability pension. This position can and will have a major impact on disability applicants moving forward.
For many years, the Retirement System, confirmed by the state’s highest courts, has required members applying for disability retirement to undergo “reasonably safe” medical procedures which can restore them to full duty. Traditionally, this standard applied to areas of the body such as knees, shoulders, hands, etc. Frankly, this standard was never previously considered unreasonble by members or their attorneys. If a relatively routine and safe surgery, which could remedy a member’s condition, existed, the member was expected to have the surgery and proceed back to work if post-operative care went well.
Until last year, the Retirement System did not consider cervical or lumbar fusions to be “reasonably safe” procedures and, therefore, members applying for disability benefits did not have to fear being denied by the Retirement System because they did not want to undergo these highly invasive procedures. Unfortunately, this has been officially changed.
Following the Retirement System’s decision to consider spinal fusion surgery to be “reasonably safe” procedures, I, along with three other respected disability attorneys, petitioned the Retirement System to re-visit and reconsider its decision. While the System did re-visit the issue, it has remained steadfast in its determination.
We must now litigate this matter on a case-by-case basis before the courts over the next several months and determine whether the judges agree with the Retirement System. However, if you suffer from a cervical and/or lumbar spine impairment, your doctor has recommended or discussed spinal fusion surgery with you and you do not wish to undergo such surgery, you should consider the following:
• Have your doctor clearly document the risks associated with the surgery and that your physician has discussed these risks with you.
• Clearly document the risk factors you have considered in making your decision not to undergo the surgical procedure.
• If you are not a surgical candidate, this should be clearly documented in your treating physician’s notes. (This can include any medical condition which precludes surgery).
• If you have an adverse personal experience with surgery, this should also be documented at the time of your application for disability retirement benefits. (Did you have a negative physical reaction during a prior surgery? Did your close friend or family member have a fusion surgery with an adverse outcome?)
• If there is an extraneous reason you do not wish to undergo fusion surgery, this should also be documented (single parent, sole caregiver to children and do not wish to face the risks of surgery)
While we may not like the Retirement System’s stance on the spinal fusion issue, we must start to deal with it and protect our members. In that vein, just because the Retirement System “generally” considers single-level spinal fusion surgery to be reasonably safe, that does not mean that it is specifically safe for you. Nor does it mean that you are necessarily “unreasonable” in refusing such a surgery. Documenting why you would refuse the surgery is now paramount.