‘Injured on duty’ can be lucrative for officers www.privateofficer.com
It’s an attractive option. In Buffalo alone, cops have hit their heads on file drawers and fallen from chairs on their way to full pay for no work.
Injured-on-duty income is not taxed, so idled police net a 30 to 40 percent raise to stay home.
And if injured officers also draw Social Security Disability Income, their employers can’t touch it.
Injured on duty doesn’t necessarily mean injured by tackling a mugger, wrestling with a drunk or stopping a bullet. Police can reach the injured roll after walking into a wall at the station house or picking up reams of copy paper – perils faced by everyday bureaucrats.
Buffalo cops have been there in droves. Just a year ago, more than 14 percent of the force was deemed unable to work while collecting full pay. Most police departments find figures north of 10 percent cause for alarm.
With salaries and benefits, those stay-at-home police were costing Buffalo taxpayers more than $200,000 a week.
“In my opinion, anybody legitimately hurt on this job deserves everything we can do for them. … It’s a very dangerous job, and they put their lives on the line every day,” said Buffalo Police Commissioner Daniel Derenda, who has cut the injured roll roughly in half from a year ago.
“I use that word, ‘legitimately,’ ” Derenda continued, “because the other ones deserve something different.”
Derenda didn’t mention retired Lt. Patrick S. O’Mara. But judging by what’s happening with O’Mara these days – a federal grand jury indicted him – he might be among the “other ones.”
O’Mara apparently worsened a bad shoulder when he picked up two reams of copy paper in March 2005. He had been back to work, on light duty, for less than a year after suffering a back strain. With the copy paper mishap, he landed on the injured list again and remained there until his retirement in March of this year – $626,000 later.
Over those years, O’Mara resisted light-duty work at Police Headquarters, even though his own words seemed to indicate he could be active. Here’s how O’Mara summed up his condition when he arrived at a local spa for his required regular therapeutic massages:
July 29, 2008: “Low back a little sore [yard work].”
Sept. 9, 2008: “Feeling good today – low back a little sore – went to state fair, lots of walking and driving.”
Nov. 18, 2008: “Low back a mess – lifted an A/C with poor body mechanics.”
March 3, 2009: “Not [too] bad – just the usual – spent the week in Las Vegas.”
December 2009: “Doing holiday decorations”; “lots of shoveling …”
The FBI obtained these statements during its investigation and revealed these details in a criminal complaint against O’Mara after Derenda and Mayor Byron W. Brown turned to the FBI and federal prosecutors for help in proving fraud by injured employees. O’Mara has pleaded not guilty.
When FBI agents told O’Mara they knew that despite his refusal to work desk duty, he’d been reporting to work as a church organist, he responded that he saw no incentive to return even at light duty.
For one thing, desk duty was demeaning, he said, according to the FBI.
Further, he took home more money when he didn’t have to pay taxes on his disability income.
City Hall has wrestled with its injured-on-duty rolls before. The Police Department list especially has swelled and receded as a string of mayors tested strategies for returning injured cops and firefighters to active duty.
“Some days in the city, 100 or 120 policemen are sick or injured on duty,” then-Mayor James D. Griffin lamented in 1993, almost 20 years ago. His idled cops created a huge cost. Replacements were brought in on overtime to fill mandated shifts. Meanwhile, the city covered the medical bills of injured police and paid their full and untaxed salary.
Mayor Anthony M. Masiello’s team decided that its centralized personnel department would monitor injured-on-duty cases with beefier enforcement.
Mayor Brown, in his second term, returned that oversight duty to his police and fire commissioners, because they are closer to the rank and file and know their departmental cultures better. Brown also denied injured cops certain job benefits, but he ran into resistance from the police union and the courts.
Meanwhile, Brown and Derenda sought help from federal authorities because, among other reasons, the FBI has more resources for surveillance and a Buffalo cop is less likely to recognize an FBI agent, as opposed to a Buffalo internal affairs investigator.
Judging by the way Buffalo’s injured-on-duty cops pop up in the oddest places, people might think their numbers are booming.
Injured Officer Martin Motley was spotted emerging from killer Timothy V. Jorden’s Hamburg home June 13.
Alex Benitez in 2011 was suspected of stealing from his Clarence gym. (The case was dismissed and sealed.)
When the city in 2010 hired a private security firm to work at city pools, officials learned it was run by sidelined Officer Levino Johnson.
Shrinking the rolls
But Brown’s Police Department has made a dent in the injured rolls. A year ago, in July 2011, police brass counted 116 officers unable to work and seven more on light duty, monitoring crime cameras at twice the pay of a civilian employee.
One week ago, when the city opened the books on a new fiscal year, 45 cops were on full injured-on-duty status and 22 were on light duty, Derenda said.
Those are snapshots in time, and the figures can change from week to week during a year. City Hall was unable to provide the total number of work days lost to injuries over the last two years, which is another measure of a city’s injured-on-duty problem. Still, police officials say, it’s indisputable that they have made progress.
During one pay period in 2011, June 9 to June 23, the department lost 8,343 working hours to injuries.
From June 11 to June 25 of this year, the loss was half that.
“We’ve seen nothing but a downward trend,” Derenda said.
The city retains its own doctor to review the medical records of each injured officer and to conduct an independent medical exam or arrange tests and treatment immediately, not weeks or months later. The Police Department assigned Deputy Commissioner Byron Lockwood and Lt. Dawn Kent, a registered nurse, to monitor cases. Today, the department will often challenge officers’ assertions that they cannot work or will steer them into a disability retirement.
It is akin to the strategy applied in the late 1990s, when Lt. Robert Calabrese rode herd on the enforcement effort. Calabrese and an outside medical group brought the number of long-term cases – those lasting a year or more – down to 25 from 60. Calabrese agrees that the police and fire commissioners, not City Hall’s human resources staff, should handle injured-on-duty cases.
“Obviously, there has been an improvement,” he said recently.
Turning to arbitration
This time, City Hall also has the ability to place an officer’s injury claims before an arbitrator. That’s been done in other cities for years, but Buffalo’s Police Benevolent Association only this year agreed to arbitration for injury cases. An arbitrator hears the sometimes-conflicting medical opinions and determines an officer’s fitness for light duty.
PBA President James Panus said it’s part of a collaboration in which the city became committed to quicker examination of an injury. Officers in past years waited months for the city to allow the tests required for full diagnosis, and that sometimes complicated their recovery.
“I think it’s in everybody’s interests, especially the PBA’s best interests, to get our members treated properly so they can come back to work with their brother and sister officers,” Panus said. “It saves the city money. It saves the taxpayers money. It’s a lot of money to train police and retain them. You want them back to work. But if you don’t approve and/or get them the treatment, their doctor is not going to release them to come back to work.”
More hearings are coming. The city’s doctor for its police and firefighter cases – David Hughes of Great Lakes Physician Services – has determined that 23 of the 45 officers out with injuries can return to work in some capacity, Derenda said. All 23 have requested hearings, the commissioner added.
“Our medical records are being ignored,” said one officer with a back injury, who asked to remain unidentified because he lacked the department’s approval to talk about the matter. He said Hughes does not fully consider the extent of injuries and how it can be difficult to even watch crime cameras for eight-hour shifts.
The doctor’s primary interest, the officer said, is to get cops back to work.
“Clearly, it’s to get people healthy and back to work,” Hughes told The Buffalo News. “There has been some resistance, certainly. But overall, I believe that people realize that it’s a good process, and we are finding that people are getting care quicker, and better care than they had been getting in the past, and that has resulted in a significant decrease in the number of people out injured on duty.”
Hughes said he assesses what the injured employees can do physically. It’s up to the employer to decide what to do with the worker.
As for the 23 who want to challenge his finding that they are able to work in some capacity, he said, those people say they are 100 percent disabled. But if they can go about their daily activities, they are not 100 percent disabled, he said.
Hughes also determined that idled Officer Robert Quintana was able to work light duty. But it was surveillance work, not medical findings, that led to the federal indictment of Quintana, also a former City Council member, with mail fraud, just as occurred with O’Mara.
The FBI implied in its criminal complaint that Quintana’s doctor, Raul Vazquez of Urban Family Practice in Buffalo, was just going through the motions as Vazquez upheld Quintana’s stand that he was physically unfit for duty.
“Dr. Vazquez’s progress notes are often two to three pages long, contain several headings with very brief notes afterward, do not provide much specificity about what happened during the actual visit, and give the impression that they are simply templates that Dr. Vazquez makes minor adjustments to from visit to visit,” an agent wrote.
“For example,” the complaint continued, “the majority of the reports submitted by Dr. Vazquez contained the same sentence which appears to have the identical typographical errors and spacing irregularities in it.”
The FBI noted that Vazquez reported that Quintana had “back herniated disc disease.”
But another doctor interpreting an MRI taken just months after Quintana fell down stairs while on the job in March 2005 indicated his discs were normal.
Vazquez, who is active in improving the medical care available on Buffalo’s West Side, said he could not comment about the FBI’s statements because of federal laws guarding the privacy of patient information. But an attorney for Vazquez, John Elmore, called Vazquez an honest physician.
“FBI agents aren’t medical doctors,” Elmore said, “and Dr. Vazquez is.”
After an examination by Hughes, Quintana was ordered to light duty, triggering a hearing. But by then, an FBI agent and internal affairs officers had already seen Quintana stocking coolers, chipping ice, clearing tables, carrying boxes of food and serving drinks at the Niagara Cafe on Niagara Street. While unable to work as a police officer, he had been working at the restaurant.
Quintana collected more than $500,000 in injured-on-duty pay over the years.
Similarly, dozens of officers on injured-on-duty status can be considered long-term cases. Two-thirds of the officers who in June were either unable to work or worked on light duty had cases that stretched back more than a year. The longest went back eight, nine and 10½ years.
For nearly all of the cops, it was not their first time on the injured list. An exception: Patricia Parete, the officer left paralyzed from the neck down after she was shot while making an arrest in December 2006. City records indicate she had never before been on the injured roll.
30% of cases in Buffalo
Barbara Van Epps is deputy director of the state Conference of Mayors, which in 2010 conducted a study that suggested ways to limit the cost of injured police and firefighters. The researchers estimated that about 30 percent of all the injured police in the 61 cities outside of New York City could be found in Buffalo.
“Some of these people are collecting these payments for years and years,” Van Epps said. “A lot of the municipalities we represent are very personnel-driven. Seventy-five percent of their budgets is personnel. While we are in a period of time where we are doing everything that we can to reduce property taxes … this area of disability benefits for uniformed employees is just spiraling out of control.”
By contrast, state government treats its own police differently. Injured-on-duty state troopers are limited to two years of stay-home status.
For a few years, roughly from 1999 to 2003, government employers drew a line between officers injured in “non-performance” duties and those hurt during periods of “heightened risk.” Cops who slipped on ice while walking through the parking lot were steered into workers’ compensation rather than injured-on-duty status. But a state Court of Appeals decision in December 2003 changed all that.
In a case brought by injured employees against three government employers, the judges determined that the section of General Municipal Law that has given injured cops full pay since 1961, and then full pay to corrections officers and other types of law enforcement officials since the 1980s and ’90s, allowed no distinction between so-called performance injuries and simple on-the-job accidents.
As the state’s highest court saw it, the officer who hurt himself picking up copy paper should be treated the same as one with a gunshot wound.
And in one of those quirks of state law, an officer with the gunshot wound will receive less of a disability pension, should that time come, than the officer who slipped on ice.
That’s because an officer with an accidental injury receives 75 percent of his final average pay, while an officer injured during the heightened risk of police work (like a high-speed chase or tackling a mugger) receives 50 of final average salary.