Law Office of Jeffrey L. Goldberg P.C . in the Press

 

Injured by Inmate
Overrule Denial of CO's Disability Pension Bid
The Chief-Leader

Posted: Monday, July 20, 2015 4:45 pm | Updated: 4:54 pm, Mon Jul 20, 2015.

By MARK TOOR  

A Correction Officer injured in a struggle with an inmate must be given a three-quarters disability pension because the New York City Employees’ Retirement System erred when it said her injuries were not related to contact with prisoners, a state judge ruled June 30. “She was ordered to get the pension as a matter of law,” said Jeffrey L. Goldberg, attorney for former officer Minerva Hernandez. He said the city still has the right to appeal.
‘One Stabbed the Others’
Ms. Hernandez, who became a Correction Officer in 1987, said in an interview that she was escorting an inmate on Sept. 29, 2012, when three other prisoners were allowed out of their cells for transport to court. “They got into a fight,” she said. “One had a weapon that he used to stab the other two. I go in and try to stop him.”
When the inmate ignored her voice commands, she said, she grabbed him. He struggled with her, and she banged her shoulder into the door frame of the housing unit’s dayroom. “I kept hold of him, and he surrendered the weapon,” she said.
“She hit the door frame with enough force that she never went back to work,” Mr. Goldberg said. More correction officers arrived on the scene to end the fighting, Ms. Hernandez said, and she was taken to the hospital to begin a long course of treatment. “I went through a lot,” she said. “Surgery, therapy. I got screws in my neck and screws in my shoulder. I never got better.”
Med Board Went Too Far?
After being turned down for a disability pension, Ms. Hernandez filed an Article 78 petition. The opinion by State Supreme Court Justice Richard Velasquez said the NYCERS Medical Board “determined that the contemporaneous documentation did not support the claim that the disability resulted from a volitional act of an inmate and recommended that her application for disability retirement be denied.”
Justice Velasquez ruled that the Medical Board is authorized to determine whether an employee is disabled, but ultimately the NYCERS Board of Trustees “must make its own evaluation as to the Medical Board’s recommendation regarding causation.”
NYCERS did not dispute that she was disabled and could no longer perform the duties of a Correction Officer.
Questionable Conclusion
Ms. Hernandez argued that the Medical Board’s verdict on how she became disabled was a “conclusion of law” that differed from a medical finding and “should be overruled as it is not based on medical evidence, but, rather, on a questionable reading of the incident report.” NYCERS argued that Department of Correction reports on the incident did not indicate it was caused by an inmate’s assault. Mr. Goldberg said his client’s case was complicated by the fact that the Captain responsible did not file a use-of-force report and did not sign off on a general report until 13 months after the incident.
NYCERS and Ms. Hernandez disagreed on whether the law’s wording on the “volitional act of an inmate” covered her situation. Judge Velasquez said the language of disability law covering correction officers employed by counties was identical to the law for officers working for the state. The legislative justification for both was the rise in physical conflicts between officers and inmates, the Judge said.

Ground Zero Officer Wins Appeal in Bid For Disability Payout
The Chief-Leader
 

Posted: Monday, June 1, 2015 5:45 pm

By MARK TOOR 

A police officer has won her seven-year battle for a disability pension for fibromyalgia she contracted as a result of exposure to Ground Zero debris, her attorney said last week. The state’s highest judicial body, the Court of Appeals, May 14 rejected the city’s attempt to appeal a February decision by the Appellate Division sending the Police Pension Fund decision on Annemarie Sheldon’s case back for reconsideration. May Not Change Board The refusal to hear the appeal means that Ms. Sheldon will receive her disability pension, said attorney Jeff Goldberg. But, he said in an interview, it does not guarantee that future applicants citing Ground Zero-connected fibromyalgia will receive a more-sympathetic hearing from the board. The Sheldon case was based on the World Trade Center amendment to city pension law, which says first-responders should be given the benefit of the doubt about illnesses developed after 9/11. Such illnesses should be presumed to result from exposure to Trade Center-area debris, the law says. If a pension board disagrees that the illness was related to 9/11, it must offer credible medical evidence of some other cause, the amendment says. Otherwise, the applicant must get a tax-free disability pension equal to three-quarters of his or her final average salary. Ms. Sheldon was a first-responder on 9/11 and served more than 300 hours at the site, according to the Appellate Division opinion. On Oct. 4, 2001, she was assigned to a security post a block from Ground Zero and subsequently suffered shortness of breath, dizziness, nausea and severe chest pains. She was diagnosed the following March with fibromyalgia.
Board Rejected Claim
She filed for disability retirement in 2008, but the Police Pension Fund’s medical board concluded that while she was indeed disabled by fibromyalgia and chronic fatigue syndrome, neither of those conditions was related to 9/11. The medical board cited no evidence for its conclusion. She was forced to retire on an ordinary half-pay pension.
Ms. Sheldon reapplied for a disability pension several months later. The medical and pension boards both reaffirmed their previous findings. She filed an Article 78 petition in State Supreme Court challenging those decisions, but she lost. The trial court “did not discuss the WTC presumption or analyze petitioner’s claims pursuant to the presumption,” the Appellate Division said.
The appeals judges noted that the medical board focused on questions about whether the evidence she presented—specifically, studies positing a link between heavy (toxic) metal poisoning and fibromyalgia—was “speculative and conjectural.” The judges said that issue didn’t matter. They quoted a previous decision saying the World Trade Center presumption means that “unlike ordinary [disability-pension] claimants, first-responders need not submit any evidence—credible or otherwise—of causation to obtain the enhanced benefits.”
‘A Good Precedent’
Mr. Goldberg said the Sheldon case was “a good precedent” for future cases involving fibromyalgia, but “I’m not sure the medical board will accept it” as a guideline. In drafting the law, the State Legislature listed several specific conditions of the respiratory tract, gastroesophageal tract or skin, plus some psychological diseases, which were covered. It also included “new-onset diseases (resulting from exposure as such diseases may occur in the future including cancer, asbestos-related diseases, heavy metal poisoning, musculoskeletal disease and chronic psychological diseases),” according to the State Comptroller’s website. Mr. Goldberg said that medical boards have favored a more-restrictive interpretation of the law. “I think they’ll continue resisting conditions that are not listed in the statute,” he said.

Late NYPD detective, 9/11 responder, awarded pension after cancer death
The NY Daily News

Posted: November 15, 2013

By JOHN MARZULLI

Famed NYPD Detective Thomas Weiner, who died of pancreatic cancer after heroically serving more than 60 hours in the poisonous World Trade Center ruins, has been posthumously awarded a line-of-duty pension, the Daily News has learned.

Weiner was promoted to detective second grade on his deathbed in 2003 by Police Commissioner Raymond Kelly. But later, the department’s medical board and city bureaucrats argued Weiner must have developed the deadly disease before 9/11 because some studies show it takes six years to metastasize.

Lawyer Jeffrey Goldberg convinced the medical board to change its findings and the NYPD Pension Board approved the tax-free pension on Wednesday. “They did the right thing,” said Goldberg of Port Washington, L.I., who produced medical documentation that showed there was no sign of cancer when Weiner had bariatric surgery in 2002.

Weiner was half of the storied crimefighting duo “Tom and Jerry” with partner Jerry Dassaro, who waged war on graffiti vandals and felons in the transit system.

Weiner’s widow will receive three-quarters of her husband’s salary at the time of his death instead of the 30% which was subject to taxes.