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Involuntary disability retirement
Rockland Co. PBA v Collins, USDC SDNY, 97CIV7827
Burns v Collins, NYS Supreme Court, 258 A.D.2d 692

Anyone familiar with police and fire disability issues in New York State is aware that the finances of many municipal governments are strained by the obligation to pay disability benefits to injured fire and police officers while at the same time maintaining public safety services with able-bodied personnel. Municipal employers would prefer that disabled employees seek accidental or performance-of-duty disability retirement benefits, which would result in all or part of the costs of its disability benefits obligations being transferred to the state retirement system.

Disabled police officers are reluctant to do so, however, because their benefits would drop from full salary to the retirement benefit level. Disabled fire firefighters have less reason to resist involuntary retirement.*

As a result of these conflicting financial interests, employers may seek to involuntarily retire disabled officers. Employers are authorized by General Municipal Law Sections 207-a, 207-c and the Retirement and Social Security Law to make retirement applications on behalf of disabled public safety officers for accidental and performance-of-duty disability.

Invariably, the disabled police officers are opposed to this process. Historically they have refused to sign the retirement system?s medical waiver, Form RS-1009. [Ordinarily, applicants sign this form to enable the state comptroller?s medical board to obtain the officer?s medical records. The comptroller presides over disability retirement decisions for most state public officers and employees, including police and fire officers.]

Refusal to sign the medical waiver does not completely derail the involuntary retirement process, however; the comptroller is empowered to subpoena medical records, and began invoking this right at the urging of the Town of Clarkstown beginning in 1997.

Two cases involving Clarkstown resulted in confirmations of the comptroller?s right to subpoena records and are viewed as a significant gain by one municipality in its efforts to reduce its GML 207-c costs. [Clarkstown at one time had as many as 14 officers on GML 207-c; it currently has seven.]

The Rockland County PBA Case

Rockland Co. PBA v Collins concerned a sergeant who suffered a broken neck in an accident while responding to a call. Granted 207-c benefits, he had no interest in filing a disability retirement application. The Town of Clarkstown filed an application on behalf of the sergeant. He refused to sign the state?s medical release form.

The town could not voluntarily turn over such records to the comptroller because a State Supreme Court justice had barred such release. At the urging of the town, the state comptroller issued a subpoena duces tecum [an order to ?produce the papers?] in an effort to obtain the medical records.

The PBA sought to block the comptroller?s access to the sergeant?s medical records by filing a civil rights action pursuant to 42 USC 1983. This effort failed. After commenting that there was no federal statute or federal Constitutional right implicated in the controversy, U.S. District Court Judge Charles L. Brieant said the state comptroller has the express power to issue subpoenas in such situations under New York Law.

Judge Brieant said: ?[I]t borders on the frivolous to suggest that a state official such as the Comptroller, given the discretion to rule on whether a public employee is permanently disabled or not, could not use his lawful subpoena powers to get the medical records which would shed light on that issue.?

The Burns case

In another decision involving a disabled Town of Clarkstown police officer, a State Supreme Court action refused to quash subpoenas issued by the comptroller. Robert Burns, a disabled police officer, was receiving Section 207-c benefits. Clarkstown filed an application for involuntary retirement based on disability on his behalf when he refused to do so. He objected to having his medical records released to the comptroller because ?it would violate his physician-patient privileges,? which he declined to waive.

Justice Joseph C. Teresi refused to quash to the comptroller?s subpoenas, commenting that ?subpoena power is allowable to obtain medical records without consent because the intent ... is to allow [the comptroller] to obtain all the necessary information regarding the proposed action even though it may not be condoned by [Burns].?

Another point made by Justice Teresi: ?by receiving benefits such a Workers? Compensation or Social Security Disability benefits, [Burns] has put his physical condition in controversy thereby waiving? any claim to any privilege within the meaning of Section 4504 of the Civil Practice Law and Rules.

The Appellate Division ruled that Supreme Court properly rejected Burns' claim that CPLR 4504 protects his medical records from disclosure. The Comptroller is vested with exclusive authority to determine applications for retirement benefits and incidental thereto has explicit statutory authority to issue subpoenas for the production of records required for such determinations. To exempt medical records essential to a determination of whether the disability resulted from an in-service injury would vitiate the purpose of Retirement and Social Security Law § 363-c (c) (2), expressly permitting a municipal employer to seek the involuntary retirement of a disabled officer.

Citing Furch v Bucci, 245 AD2d 749, leave to appeal denied, 91 NY2d 95, the Appellate Division said that by applying for benefits under General Municipal Law §207-c and contending that his injury was work related, Burns affirmatively placed his medical condition in issue and effectively waived the physician-patient privilege.

* A unique provision in General Municipal Law Section 207-a requires municipal employers supplement any retirement benefits, effectively guaranteeing firefighters full salary until the mandatory age of retirement; A firefighter, however, loses his or her eligibility for this ?supplement? if he or she becomes ?employed? while on such leave.

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