Court Sends Disability Spat Back to P.D. Pension Fund Ex-Cop’s Fitness At Issue

 

July 27, 2011 at 12:31am

 

Posted: Friday, February 26, 2010 12:00 am | Updated: 1:45 am, Thu Mar 3, 2011.

By RICHARD STEIER | 0 comments

 

A case in which a cop who received an accident disability pension was ordered to return to active duty after he was discovered doing construction work, then was barred from doing so after he failed a drug test, has been referred by an appellate court back to the NYPD Board of Trustees for reconsideration.

 

An attorney for 12-year veteran officer James J. Seiferheld submitted new court papers following the ruling arguing that the NYP Medical Board received misleading information about the extent of his client's "recovery" from the disabilities that resulted in his being granted a tax-free pension equal to three-quarters of his salary in May 2004.

 

Attorney: Not Fit for Full Duty

 

Mr. Seiferheld suffers from "an orthopedic condition which did not suddenly improve," attorney Robert A. Ungaro said in a phone interview Feb. 16, five days after the ruling by a fivejudge Appellate Division panel that the suspension of his disability benefits was ordered "without statutory authority," because the Police Pension Fund's Board of Trustees never ruled this should be done.

 

The panel also, however, dismissed the portion of Mr. Ungaro's appeal seeking it to reinstate the disability pension, instead sending the case back to the Board of Trustees for further consideration.

 

The lawyer said Mr. Seiferheld "looks forward to that injustice being corrected" in that review.

 

An injury to the cop's right shoulder and "neck pain that radiated down to his right hand" were the basis for the original disability pension ruling, the appellate panel noted. But a month after the benefit was granted, the Medical Division's Absence Control and Investigations Unit ordered an investigation after a complaint was made to the NYPD's Internal Affairs Bureau that Mr. Seiferheld was performing construction work.

 

'Carrying Heavy Objects'

 

Surveillance videotape of him at his job showed him "lifting and carrying heavy objects and hammering siding materials above his head," the court stated in its ruling, and in May 2005, the Medical Board concluded his physical condition had "improved dramatically" and he was capable of returning to full duty as a police officer.

 

Further surveillance in the spring of 2006 led to an investigator testifying that Mr. Seiferheld was observed "loading scaffolding onto a truck, assisting a truck driver to remove a large bay window from a delivery truck, and installing a frame on the front windows of the second floor of a residence while standing on a roof."

 

As a result, in April 2007, the Pension Fund's Board of Trustees voted to rescind the accident disability pension and have him placed on a special preferred list so that he could be rehired. Before he returned to active duty, however, Mr. Seiferheld tested positive for cocaine use in a hair drugtest sample. That led to his being disqualified from consideration for his old job, and without the disability pension as of the end of October 2008.

 

Questions Board's Findings

 

Following the Appellate Division ruling that sent the case back to the Board of Trustees, Mr. Ungaro stated in his court papers that the finding by both the board and the Medical Board that he was fit for full police duty "was contrary to the competent medical evidence establishing that the petitioner was disabled [and was] predicated on flawed, misunderstood or misinterpreted investigative reports . . . "

 

The fact that Mr. Seiferheld was able to do some construction work, he argued, did not mean he could handle the full physical demands of a police officer's job, and absent that ability, "he cannot be placed on patrol in an enforcement role."

 

While the Medical Board said that an investigating Sergeant observed him on 20 occasions during the summer of 2004 at work and found him "working overhead and lifting heavy objects," Mr. Ungaro said these statements were misleading because there was only one time when Mr. Seiferheld was engaged in somewhat strenuous physical activity "cutting and handing off some pieces of lightweight vinyl siding to another person." This was not sufficient, he wrote, to establish that he was physically capable of performing patrol duties.

 

No Bar on Physical Labor

 

Nor, he said, is there a bar on disabled uniformed employees performing physical labor after receiving special pensions.

 

And the city, his court papers stated, failed to offer Mr. Seiferheld alternative employment, as it is required to do when suspending a retiree's pension benefits for medical reasons.

 

Mr. Ungaro contended that the drug screening which came up positive was improper because the NYPD Medical Board had insufficient grounds for ordering his client to return to police duty, without which the test would not have been conducted. He also pointed out that even a criminal conviction is not sufficient to affect a retiree's entitlement to pension benefits.

 

Mr. Seiferheld said through his lawyer, "My personal conduct as a retiree was my own business and of no consequence to the public or the Police Department's rules of conduct."

 

The attorney said the city's treatment of Mr. Seiferheld was motivated "by bad faith and an attempt to reduce respondent's financial obligations."