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The Retirement System’s New Stance On Cervical and Lumbar Fusion Surgery

Posted by Sherman Federman Sambur McIntyre
Sherman Federman Sambur McIntyre
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on Monday, 14 April 2014
in Disability Pensions

 

 

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 unreasonable 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.

As always, if you have any questions, issues or concerns, please do not hesitate to contact me directly at (631) 240-0811, Sean@nycomplaw.com or toll free at the number listed below. 



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[Police Officers] The New 3/4's Slip & Falls = "Reasonable Anticipation"

Posted by Sherman Federman Sambur McIntyre
Sherman Federman Sambur McIntyre
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on Wednesday, 07 December 2011
in Workers' Compensation

By:  Sean Patrick Riordan, Esq.

Sherman, Federman, Sambur & McIntyre, LLP.

Over the last several years you have read articles, written by me and others, which outlined the slow decline of "slip and fall" occurrences as they relate to "3/4's accidents." Since 2008 virtually everyone that came into my office with these type accidents was told that "a 50% Performance of Duty Disability Retirement is more realistic." However, I am pleased to write that this article outlines the re-emergence of these type occurrences as possible "accidents" which can enable officers to get their 3/4's benefit. By no means are all slip and falls going to be awarded 3/4's, but the Appellate Division, in several recent decisions, has outlined the type of slip and falls that can be granted benefits. In short, there is new hope for those that are permanently disabled from police work as a result of a slip and fall occurrence.

The courts have paid special attention to what they believe the officer could have "reasonably anticipated" at the time of their fall. Another way to phrase this is what the Police Officer "knew or should have known" about the condition on which they slipped, prior to falling. Much of the Court's thought process surrounds officers' normal duties and the risks associated therewith.  For example, in a 2011 3rd Department decision where an officer tripped while chasing a subject through a "dimly-lit street", the officer was held to be performing his ordinary duties and should have reasonably anticipated that streets can contain various impediments to an officers safety, especially when dimly lit.  (Murray v. New York State Comptroller, May, 2011).

In Stone v. New York State Comptroller an officer was carrying a trundle to assist a heart attack victim with the aide of an EMT. The EMT suddenly pushed the trundle forward causing the officer to fall backward against an open screen door. The Court found that this occurrence was NOT an accident because the officer was performing her ordinary duties in carrying the trundle and that the risk of her peers uncoordinated movements is inherent in such duties. However, the Court goes on to give keys to what they will consider an "accident." The Court notes that the officer in Stone failed to produce any evidence that:

            (1) a hazardous condition existed

            (2) a defective condition existed

(3) that the cause of the injury was entirely unrelated to the ordinary risks of the job.

The Court thereby sets out three ways for an officer to prove he has sustained an "accident" when injured as the result of a slip and fall.  

In two subsequent decisions, the Court followed the train of though laid out in Stone. In Tierney v. New York State Comptroller, a Police Lieutenant "slipped on discarded food while stepping out of an office building where he routinely worked and fell down stairs. In his testimony the Lieutenant stated he did not previously observe food on the steps (which caused his fall) when he entered the building earlier that day and he did not see the food immediately prior to slipping on it either. In overturning the Comptroller's denial of benefits the Court noted that the State failed to show that the hazardous condition (i.e. the garbage on the steps) could have been "reasonably anticipated."

Lastly, in Murphy v. New York State Comptroller, a Police Officer "slipped on black ice" as he exited his vehicle onto an airport taxiway in the month of January. Murphy had testified that on the day of his fall the weather conditions were cold and clear with no precipitation. The Officer also stated in testimony that he had not seen any ice prior to exiting the vehicle and had never before experienced ice in the area in which he fell unless it had recently snowed. In overturning the Comptroller's denial the Court wrote:

 

"the Comptroller's decision relies on the premise that encountering slip or icy surfaces was inherent in petitioner's performance of his job during winter. While this Court has held that a fall occasioned by a slippery surface is not an accident when that condition could have been reasonably anticipated, a denial upon such ground must be supported by the record and not rest merely upon speculation...we have never countenanced a doctrine...that would hold that any slip and fall during the course of work performed outside during winter renders that event foreseeable."

While the above statements of the Court seem obvious to us, their power and importance cannot be understated. What does it all mean to officers? First, as we have said for some time, it is important to be detailed in your initial Injured Employee Report. If you believe that you are injured due to an "unforeseeable" event, describe in such report why the condition that caused your injury was unknowable and the facts and circumstances that made it unknowable. The Court is making clear in their recent decisions that not everything an Officer encounters during their work is "foreseeable", so be clear from the outset why it wasn't in each particular occurrence. We don't want to have to wait for you to testify in order for the State to understand why this occurrence is unexpected.

Second, where there is a hazardous or defective condition that causes your injury, take pictures immediately after the event. The cliché that "pictures speak a thousand words" cannot be truer than in disability proceedings. It is important that we show the State the condition that caused the injury. The pictures will enhance the credibility of the claim. Many of these cases will now come down to our documentation, so we should and must produce all evidence possible.

As always, if you are injured in the course of your duties and need assistance filing the necessary paperwork, please do not hesitate to call or email and discuss the matter with our firm.

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Additional Information Relative to Filing a Worker's Compensation Claim - English

Sherman, Federman, Sambur, & McInture, LLP is a Long Island, NY based workers’ compensation firm. We provide services to the greater New York area including but not limited to Brentwood, Garden City, Hempstead, Islip, Manhattan, Riverhead, essentially all of Long Island (Nassau and Suffolk county), Sysosset, Bay Shore, Hampton Bays, East Hampton, West Hampton, the North Fork, New Jersey, Connecticut, Pennsylvania, Massacheusetts the South Fork, Down Island, the North Shore, the South Shore, Mattituck, Jamesport, Cutchogue, Commack, Wyndanch, Longbeach, Queens, the Bronx, Brooklyn, etc. We cover all urban, suburban and rural areas alike (i.e., the entire Tristate area).

Services include workers accident, workers compensation, social security disability, and veterans disability. We have worked with and represent heart attack patients, herniated discs, those injured on the job, pertaining to occupational disease illness for bread winners, the elderly/old, exclusive remedy requires, death benefits, fraud, office related injury, posttraumatic stress syndrome, abogado, lesions, compensation, laborales, en mass, section 32, HEP C, hepatitis, permanent disability, pre-existing conditions, 3rd party injuries, neck injury, sue worthy, employer induced, 32 settlements, WCB permanent-partial, carpal tunnel, car crash, arthritis, CRPS, temporary partial, TPD, complex regional pain syndrome, etc.

We are the best law attorneys/work injury lawyers/SSI and SSD attorneys, located in New York City. We can provide a free consultation for your case. Simply fill out our NY state intake form. There is also a printable version available via that same new client intake form link.

Where can I file a workers comp, SSD (social security disability), veterans claim in New York? Please contact us to set up an appointment!

Please view our testimonials above via the top-most navigation menu. You may also view our frequently asked questions (FAQ) pertaining to your SSI/SSD/Worker's Comp claim.

Moreover, please contact us with any questions related to: withdrawal, workers comp forms relative to NY/NJ/CT, NY workers compensation laws, Suffolk County and Nassau County WC Laws, questions regarding doctors in Long Island who may be able to assist with your comp case, "When should I get an attorney for NYS WC case?", filing for benefits, repetitive motion, all WC related forms and, potential fees and awards for your case, questions related to the WC board, questions relative to changing your reward, average weekly wage, reopening a workman’s comp case, SSI Attorneys and assistance, questions regarding making/filing another application whilst you have a pending appeal, reopening post-decision cases, voluntary withdrawal from the workforce, "Who pays for workers comp?", judge(s), spine stimulators, how to begin your WC case with SFSM via www.nycomplaw.com, wages and wage estimates, claiming your rewards for a filed case and the respective guidelines to winning.

Regardless of the outcome, Sherman, Federman, Sambur, & McIntyre, LLP is here to help. And our success is driven by our combined passion to help you!

El pariente adicional de Información para Archivar una Pretensión de Indemnización Laboral - Espanol

Sherman, Federman, Sambur, y McInture, LLP es una Larga Isla, Nueva York basó a la firma de compensación por accidentes de trabajo. Le proveemos los servicios al mayor área de Nueva York incluyendo pero no limitado a Brentwood, la Ciudad Jardín, Hempstead, Islip, Manhattan, Fuente de Un Río, esencialmente todo Sysosset Bastante Isleño,, Costa Baya, Hampton Bays, Hampton del este, West Hampton, el North Fork, Nueva Jersey, Connecticut, Pensilvania, Massacheusetts lo Al Sur Tenedor, la Isla Caída, el North Shore, lo Al Sur Costa, Mattituck, Jamesport, Cutchogue, Commack, Wyndanch, Longbeach, las Reinas, el Bronx, Brooklyn, etcétera (Nassau y condado Suffolk). Cubrimos todas áreas urbanas, suburbanas y rurales por igual (i.e., el área entero Tristate).

Los servicios incluyen accidente de trabajadores, compensación de trabajadores, incapacidad de seguro social, e incapacidad de veteranos. Hemos trabajado con y representamos a los pacientes de ataque al corazón, los discos herniados, esos heridos en el trabajo, relacionado con la enfermedad de enfermedad profesional para ganadores de pan, las personas de edad/viejas, el recurso exclusivo requiere, beneficios por muerte, fraude, la oficina relató lesión, síndrome postraumático de estrés, abogado, lesiones, compensación, laborales, masa en, sección 32, HEP C, la hepatitis, la incapacidad perpetua, condiciones preexistentes, lesiones 3 de fiesta, la lesión del cuello, entable demanda digno, el empleador inducido, 32 acuerdos, WCB parcial en la permanente, el túnel del carpo, el accidente automovilístico, la artritis, CRPS, el empleado eventual parcial, TPD, complique síndrome regional de dolor, etcétera.

Somos los abogados de ley de mejor abogado /trabajo de la lesión del abogado /Ingreso Suplementario de Seguridad y SSD, localizado en la ciudad de Nueva York. Podemos proveer una consulta libre para su caso. Simplemente llene nuestra forma de la toma del estado de Nueva York. Hay también una versión imprimible disponible por ese mismo nuevo enlace de la forma de la toma del cliente.

¿Dónde puedo reportar a unos trabajadores comp, SSD (la incapacidad de seguro social), pretensión de veteranos en Nueva York? Aquí mismo en Sherman, Federman.

Por favor mire nuestros testimonios arriba por el menú que se sobrepasa más de navegación. Usted también puede mirar nuestras preguntas preguntadas (el archivo de preguntas frecuentes) frecuentemente relacionado con su la pretensión Comp DE SSI/SSD/Worker.

Además, por favor contáctenos con cualquier preguntas con las que se relacionó: El retiro, ¿ las formas del comp de trabajadores referente a NY?, Solicitando beneficios, moción repetitiva, todo WC formas relacionadas y, premios y retribuciones potenciales para su caso, las preguntas se relacionaron con el pizarrón WC, preguntas referente a cambiar su recompensa, salario medio semanal, reabriendo un trabajador Abogados comp de caso, de Ingreso Suplementario de Seguridad y la asistencia, tiene objeciones acerca de referente a la confección /limadura otra aplicación aun mientras usted tiene una súplica pendiente, reabriendo casos de postdecisión, retiro voluntario de la población en edad laboral, ¿ "quien paga para trabajadores comp"?, El juez (s), los estimuladores de la columna vertebral, cómo empezar su caso WC con SFSM por medio de www.nycomplaw.com, sueldo y salario estima, pidiendo sus recompensas como demanda por un caso archivado y el respectivo conjunto de directrices a ganar.

Sin tener en cuenta el resultado, Sherman, Federman, Sambur, y McIntyre, LLP es aquí para ayudar. ¡Y nuestro éxito es conducido por nuestra pasión combinada para ayudarle!