BETRAYED!

On October 19, 1981, I joined the N.Y. State Police. After attending their 26-week Police Academy, I was assigned to the State Police station in Fulton, NY which is in Troop D. I later transferred to SP Elbridge. I served my entire career in Troop D.

In the Academy you get intense training in the various laws of NYS, emergency vehicle operation, firearms and defensive tactics, and more. There is also extensive use of psychological tactics by instructors and counselors to test the mettle of recruits. One of the key elements they attempt to instill is that being a Trooper is a brotherhood and it is imperative we support each other. Along with the aforementioned training, recruit Troopers are also advised of the benefits available as a member of the State Police.

During my career with the State Police, I endeavored to be the best NY State Police officer I could be. I accepted every opportunity to advance my training and police skills. I was trained in hostage negotiation, Identikit operation (involves the making of composites of people for identification); I was one of the first group of forensic evidence technicians in the State Police. I was also a certified Field Training Officer for new recruits. I worked on two successful, undercover drug investigations which entailed months of wire-tapping and extensive surveillance. Aside from these activities I always maintained my status among the station leaders in V&T enforcement, DWI arrests and penal law arrests.

When I was on the job, Troopers received annual performance evaluations and were rated on a multitude of categories and given a numeric rating between 1 and 10. The first rating was typically done by your station sergeant and a second rating was done by an officer, typically a Zone Lieutenant. During my last 5 years and 7 months, while assigned to SP Elbridge, I received an adjective rating of outstanding which meant I was performing at a level between 9 and 10.

In July of 1993, I was promoted to the rank of Investigator and transferred to Troop D Headquarters in Oneida, NY. In August of that year, I was assigned to a task force investigating the kidnapping of a twelve-year old girl from the Herkimer, NY area. It was during this investigation that the course of my life changed.

On October 12, 1993, after a long day of following leads; I was driving home, in my assigned State Police vehicle when I was involved in a personal injury accident with a tractor-trailer that ran a red light and made a left turn into the path of my oncoming vehicle. My vehicle struck the rear axle tractor wheel (the hub of the wheel left an identifying circular imprint on the front of the car where the hood ornament used to be) and sustained severe front-end damage. I believe my head struck the sun visor (which may have dropped slightly during the impact) and then my head was propelled back over the headrest when the airbag deployed, and I ended up with a contusion to my forehead.

I was transported, by ambulance, to a local emergency room where I was put through a routine exam and released to go home. I told the doctor and my supervisor that the first thing I recalled, after the collision, was an EMT holding my head from the backseat while a cervical collar was placed around my neck. I was told, by my supervisor, that witnesses reported that I exited my vehicle, after the accident, and spoke to the other driver. I did not recall that, at the time, nor do I recall it to this day.

The day following the accident I woke up to find that my forehead was swollen all the way across. I made an appointment to see my doctor and he explained the swelling was excess fluid caused by the contusion to my head and should go away in a few days.

I stayed out of work for a couple of days and then went back. I can't remember if I worked one or two days, but I found myself driving aimlessly around and not even remembering how I got from point A to point B. I also had a throbbing headache and just felt totally out of sorts. I advised my supervisor of my condition, and he advised me to go home and take some time to recover.

I remained out of work for approximately four months as my condition seemed to worsen. I had a constant headache, severe insomnia, and most troubling of all was my inability to concentrate and short-term memory loss. It seemed like I was losing (misplacing) things on a daily basis. During this time, I was seeing different doctors on a regular basis. Most of them agreed that I probably suffered a concussion and the symptoms I was describing should resolve over time. What started out as "...these symptoms could last a couple weeks...", then became "... a month or so...", then "...sometimes up to six months...". No one could give me a definite answer as to when my symptoms would go away.

On Sunday, February 27, 1994, I received a phone call that I was being ordered back to work by the Troop Commander of Troop D. I reported to duty, in Oneida, on February 28th. On my way to work I was almost in another accident as I nearly rear-ended a vehicle stopped at a red light in my hometown. After arriving at work, I realized that I had left my duty weapon at home. I sat at my desk most of the day just trying to organize my thoughts. I also asked my supervisor if he thought the Troop Commander would allow me to ride to and from work with another investigator (who drove within a mile of my house on his way to Oneida). My supervisor advised me the Troop Commander turned down my request and I was expected to drive myself to and from work. The second day of "work" I was given a routine investigation to handle. I went to interview the complainant and upon returning to the office and reviewing my notes, I realized that I had failed to ask some routine questions and had also failed to get a call back number. I also recognized that whenever the phone rang it would take me a significant amount of time before I could recall and get back to what I was doing prior to the phone call. It was also at this time that I heard that the Troop Commander thought I was malingering.

On day 3, I reported to work with a terrible headache and just sat at my desk for a couple of hours. I then went to my supervisor's office and advised him I could not work like this, and I was going home sick. Upon returning home I received a call from my union representative that the Troop Commander was bringing me up on charges (this is similar to a military court martial) for "Failure to obey a direct order". This could have resulted in my being terminated from the New York State Police. I told my union rep that the Troop Commander could do what he thought he had to do. I was not going to risk my health and risk putting myself or others, in potentially dangerous situations when I am not 100% fit. The next day I was advised that the Troop Commander had dropped the charges.

Later in March 1994, my supervisor and the BCI (Bureau of Criminal Investigation) Lieutenant came to my home to get my vehicle and I was ordered not to return to work until

MY doctors gave me the okay.

Fast-forwarding: Over the course of the next several years I saw over twenty different doctors at the request of the State Police, the N.Y.S. Comptroller, The Workers' Comp Board and Social Security. This was because I had filed for a State Police Disability Retirement as well as Social Security disability. There are certain time constraints for filing for each of these and I was not certain when or if I would be cleared to return to full and strenuous duty. All but two of the physicians rendered opinions that I was not fit for duty at the time of the exam. The consensus was that I had "mild" post-concussion syndrome.

To this day, I still suffer from the effects of post-concussion syndrome. The headaches are less problematic than they used to be, but my problems with attention and concentration persist and are difficulties I deal with on a daily basis. Of course, now when I discuss these issues with my primary care doctor, he tends to think they are age-related until I remind him that I've had these issues for the past thirty years.

What all this is leading up to is that on March 7, 1997 (after fifteen and a half years) I was terminated by the New York State Police. The reasons given were as follows:

1. As of March 7, 1997, your period of leave without pay will exceed the eleven-month period allowed under New York State Police regulation 5.12(a)(3) and.

2. You continue to be unfit for full and strenuous duty.

So not only do the State Police allow a member to stay on the books for a year (not eleven months) without ANY pay, but then they fire that member for being unable to return to full and strenuous duty (A determination that would be made by the Division Physician) three and a half years after he was injured in an on-duty accident.

Furthermore, on April 11, 1996, the State Comptroller's office denied my application for a State Disability Retirement. I requested a hearing on his decision and after the hearing I was denied again on February 10, 2000. I then appealed that hearing decision, and the matter was sent to the New York Supreme Court, Appellate Division - Third Department. My appeal was overturned in that court.

Before I go further, I want to say in defense of my position, that the Department of Social Security determined that I was totally disabled for a period of three years from the time of the accident. After that it was determined I could do some kind of employment. Then on December 11, 1998, the NYS Workers Compensation Board made a determination that I had a 49% permanent partial disability.

WHY NOW?

 I have five reasons:

1. Most important of all is that I earned my retirement. I did nothing wrong and yet I was treated like I committed a crime. In my fifteen years with the State Police, I had never heard of anyone being fired who didn't commit a crime or commit some heinous dereliction of duty or insubordination. Even in many of these instances the end result was a suspension or transfer to another station. I know of one Trooper who actually did commit a crime, at work, and when he found out he was going to be arrested he went to a doctor and complained of job-related stress. He went out on stress-related sick leave and ended up getting a disability retirement.

Maybe even more important is that my family earned this. As anyone who has been a police officer can attest, the job can be hard on one's family life. Your family worries about you all the time. Whenever they hear a news report of a police officer being shot or injured in an accident, they worry if it's you, until they hear from you or see you come home. Even then it's a constant reminder, to them, of all the dangers a police officer faces and if they may one day get a call or knock on the door with horrific news. On top of all that my family was forced to endure the harsh way the State was mistreating an exemplary employee as well as dealing with the reality of his medical condition.

Furthermore, this is my legacy. Being a NY State Trooper/Investigator is something I am very proud of. Second only to being a father to three beautiful children. I want to have something, positive, to leave them when I'm gone.

2. I turned sixty-five last November and I should be looking forward to my retirement years. Instead, I am looking forward to probably working full-time for the rest of my life. The reason being, I only receive a vested pension which, this year, will amount to about $12,800. If I had received my disability pension when I should have, it would be worth over $35,000 a year now (taking into account the annual COLA). This is more than my Social Security and vested pension combined.  By my calculations I have lost hundreds of thousands of dollars in pension benefits and Workers Comp benefits since I was let go by the State. Police. This is money I earned for serving the State faithfully for fifteen and a half years. I should mention that besides the pension I also lost my health benefits (the dollar value of which is incalculable) when I was fired. To add insult to injury, I currently have a right rotator cuff injury which I cannot even take the time to get repaired as I can't afford to take time off from work.

3. I do not believe I am alone in this drama. When I was going through most of my trials and tribulations with the state I was once told that there were at least thirty other members going through the same thing. I do know two Troopers who did suffer my same fate. If this is true, then why didn't the union(s) do something to correct this miscarriage of justice. The NY State Police are the only police department in New York State not covered by section 207-C of the General Municipal Law which protects police officers from being fired if they are injured on-duty. The State Police should have something similar to protect its members.

4. Another major issue that many others have experienced, but not thought about, was due process. The Fourteenth Amendment of the Constitution states "...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law...". The NY State Constitution also reiterates the same phrase in Article 1, section 6; that "...  No person shall be deprived of life, liberty or property without due process of law." (Amended by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938; further amended by vote of the people November 8, 1949; November 3, 1959; November 6, 1973; November 6, 2001.). I consider my pension as well as my job to be property rights which require due process. Due process demands fairness in the law and how it is carried out. A major principle of due process is that the adjudicator be impartial. This last part is completely contrary to how the State Comptroller's office manages the State retirement systems. In my case, however I was denied due process by not only the Comptroller's office but also the Worker's Comp Board and the N.Y. State Police. I will expound on these later.

5. My final reason for delving into this again is because I know the State Police are actively recruiting new members and they are having so much difficulty that they have had to relax some of their hiring standards. There were times when I was with the State (before my accident) that I thought it was a thankless job, but it is even more so now. Police officers, today, are under constant scrutiny. I feel it is important for any potential new recruit Trooper to be fully aware of things they may encounter, both good and bad, on the job. Also be aware that you can't trust the State to have your back.

DUE PROCESS

Both the U.S. and N.Y.S. Constitutions contain the same clause, that No person shall "...be deprived of life, liberty or property without due process of law." Due process, with regard to property rights, refers to the fair and lawful treatment that individuals are entitled to when their property rights are involved in legal proceedings. It is a fundamental principle of law that ensures individuals are given notice and an opportunity to be heard (fairly) before their property is taken away or their rights are adversely affected by the government.  As stated previously, I was denied due process by the State Police, the Workers Comp Board and the Comptroller's office. I will explain each.

The State Police:

  According to the NYS Executive Law, Article 11, section 215 “3. The sworn members of the New York State Police shall be appointed by the superintendent and permanent appointees may be removed by the superintendent only after a hearing.” N.Y. Exec. Law § 215. I never had a hearing before the Superintendent prior to my termination, nor was I offered one. This is a grievous denial of my right to due process in protecting my job and my retirement. This act alone constrained my life; by subjecting myself and my family to undue hardships. It interfered with my liberty; by removing any possibility of my returning to my chosen profession either with the State Police or any other police department, due to the added stigma of having been fired. Finally, it deprived me of property by taking away my job, my income (including my pension) and my health insurance. I was denied the opportunity to question why this situation was even being allowed to take place and perhaps get answers to questions that have never been answered. I also would have liked the opportunity to look the Superintendent in the eye and plead my case. It would have given me the opportunity to ask him to consider Section 227 of Article 11 of the NYS Executive Law which permits a board consisting the Superintendent of State Police, the Attorney General and the Comptroller to award a disability payment to a member who is "...now or who shall hereafter become physically or mentally unable to perform his regular duties in a manner satisfactory to the superintendent of the division of state police...". The only stipulation being that the member may not be a member of the New York state employees' retirement system. I believe my membership, in the retirement system, ended when I was terminated.

Workers' Compensation Board:

I actually thought I had complete success with the Comp Board but, was I ever wrong.

In late November or early December of 1998, I had a hearing before the Board. The purpose of the hearing was to hear testimony from a doctor who had examined me on behalf of the State Insurance Fund - SIF (NYS Workers Comp Carrier). Upon completion of the doctor's testimony the judge looked at the State insurance Fund representatives and sternly said "Settle this case." The reason being my lawyer had the doctor completely testify on my behalf. We adjourned to the waiting area and my lawyer spoke with the SIF reps for about a minute. He then came to me and said they will agree to a permanent mild disability (25%) but not a moderate disability (50%). He also said if we chose to fight for the moderate classification it could hold up my comp payments for a long time. I said to him that if it's just a matter of semantics, would they agree to a permanent mild disability at 49%. He went and asked, and they agreed immediately. He then asked me how I wanted to handle the holiday, which is a period of time they do not have to pay benefits as the benefits are offset by any third-party settlement I received. He said we could try to get the amount of the offset (due to the holiday) reduced or request a specific length to the holiday. I said I would accept the full amount of the offset if they would agree to reduce it at the maximum comp rate of $400 a week until the offset was satisfied, and they agreed. So, they received a holiday, from paying me any benefits, of twelve years.

The SIF was to commence paying me in October of 2010, so I called them in late September to remind them. I had just ended my job with the US Census Bureau, as the census was wrapping up, and I was now out of work. I then got a notice that they were challenging the commencement of the payments. I then hired an attorney to represent me, as my former attorney had a new position with the County. During the hearing, the judge advised us that the SIF was seeking further deficiency compensation (same as the offset). The moment my attorney started to speak. the judge advised him the SIF was "... entitled to these funds and he would hear no arguments against it." Thus, he denied me my due process by denying me legal representation. My lawyer would have argued how the settlement, which the judge had a copy of, was reached.

Subsequently, I could not find work right away and the SIF was dragging their heels on trying to reach a settlement, so our home went into foreclosure (which the SIF knew was going on). We were forced (coerced) to settle with the SIF for an amount less than what we owed to avoid losing our home. Even with our settlement which was completed over a week before the foreclosure was to take effect, they still did not get the funds to me until about 45 minutes before my payment was due to the bank. So, they managed to break our deal and I ended up with a short sale on my credit report which screwed me up for about seven years. More importantly I lost a lifetime of Workers' Compensation benefits.

The NYS Comptroller:

One of the key essentials to due process, being a fair process, is that the adjudicator be impartial. That person should have no vested interest in the outcome of the any case. From my experience with the Retirement System and the Comptroller's Office I can tell you this is not the case. After speaking with many attorneys regarding possible appeals of the Comptroller's retirement decision in my case, the consensus was, the Comptroller has complete authority over the Retirement System and is not required to make a decision based on a preponderance of the evidence. He may accept the word of one doctor over the opposing opinions of several doctors if he sees fit, and feels it protects the Retirement System. This became apparent, to me, when I spent many hours at the Syracuse University Law Library, reading Retirement case law. Almost every decision by an appellate court or the Court of Appeals ended with the same phrasing that essentially said the Comptroller has total authority over the NYS Retirement System and therefore sole decision-making power with regards to disability retirements. This observation was affirmed as I spoke with other people who had been denied their retirement benefits. One attorney I spoke to about representing me, re-iterated the above perception and said there was pressure on the judges not to award disability with few exceptions. This attorney spoke from first-hand experience as he/she had been an administrative law judge for the Retirement system and had decided a case in favor of the injured party. Consequently he/she was never given any more cases to hear. Eventually this attorney resigned his/her position due to the lack of work.

In my case, it was clear from the decision, in my case, that the above-mentioned reality existed. The Retirement System attorneys did not even present good evidence. They should be presenting best evidence. They relied on the testimony of three doctors: a psychologist, a neurologist and an orthopedist. In his decision, the hearing judge wrote that the neurologist "... opined that since there was no loss of consciousness there was no concussion..."; neither of those opinions were voiced by the doctor. In fact, this doctor specifically stated (twice) that "... the loss of consciousness was brief...". He never stated there was no concussion as the hearing judge indicated. The doctor also stated that '...the disabling symptoms seem a bit out of proportion to the degree of injury as judged by the duration of loss of consciousness...". This statement is totally contrary to, the then, current medical evidence concerning concussions and specifically post-concussion syndrome. The 1994 edition of the Merck manual states, "After a mild head injury, headache, dizziness, difficulty in concentration, variable amnesia, depression, apathy, and anxiety are common, more so than after severe head injury. Considerable disability can result."  Hence, this information was readily available when this neurologist performed his exam and rendered his misleading opinion on my condition.

The hearing judge indicated the psychologist who examined me, "...opined there were no cognitive deficits that would prevent the applicant from performing his job duties." The doctor's actual testimony was, "On the basis of cognitive functioning alone, I found no basis to believe that he would not be able to perform those duties." Leaving out the word "alone" changes the entire interpretation of what the doctor was implying. Furthermore, the doctor's final conclusion in his report was, "However, because of his pain, I believe that he could not resume his duties with the State Police at this time.". The doctor also testified, at the hearing (approximately five years after his exam), when asked if I still had the same complaints, in 1999, as when he examined me in 1994, that, "Yes. I would have said he wasn't able to return to work." The judge also wrote the doctor testified that my "...claim of pain was subjective and not ascertainable by a physician." The doctor never testified to this.

So, neither the neurologist nor the psychologist gave any negative testimony against me and in fact, their testimony was more favorable to my case.

Regarding the orthopedist: his testimony should not even be considered valid, as the knowledge he has of brain injuries and concussion is limited to basic knowledge he gained as a medical student and related to areas in which he has no expertise. I consider his testimony to be akin to the testimony of a plumber testifying to the cause and origin of an electrical fire. It should be disregarded.

In their Answer and Return to our petition for an appeal to the Hearing Judge's determination, the Comptroller's office (the respondent) included a paragraph which stated, "The evidentiary facts upon which respondents based the determinations herein are embodied in the administrative record described in more detail hereinafter. Those determinations are not in any way arbitrary, capricious, an abuse of discretion, or otherwise unlawful but, on the contrary, are just, reasonable, supported by substantial evidence and, in all respects, in conformity with the law." I am sure that this paragraph is just standard boilerplate language they put into every argument. I have clearly indicated how absurd their evidence against me was, so their decisions (both the Comptroller's initial ruling and the hearing judge's) are neither just nor reasonable. It's a shame that the ruling bodies in these determinations, apparently don't even read the testimony and draw the proper conclusions. I believe in many of these cases they just take the Comptroller's word for it.

It occurred to me that the Comptrollers' office has nothing to lose by challenging every disability claim. I'm sure many applicants who are denied initially, don't even bother with an appeal, so those are automatic wins. I have already, previously stated the courts that decide appeals have already given the Comptroller free reign to deny any disability claim as the sole proprietor of the State Retirement system. So, most of the appeals are decided in the Comptroller's favor.  Where can an applicant get justice? Apparently not in New York State.

My position regarding the unfairness of the Comptroller's office is further supported by the fairly recent case of Kelly v. DiNapoli. In this case a police officer (Kelly) was attempting to rescue someone trapped in a home that had been partially destroyed during Hurricane Sandy. He was injured when a rafter collapsed, and he was struck and injured as he tried to support it while another officer attempted to rescue a trapped resident. He applied for, and was denied, an accidental disability retirement by the Comptroller's office. An accidental disability retirement gives the recipient, if approved, a pension equivalent to 75% of his final average salary, for life. His case was denied because the Comptroller's office claimed that his injury occurred while performing his duties as a police officer and therefore was not accidental. The appeal case was brought before the Court of Appeals and the majority denied the appeal with one dissenting judge. The dissenting judge (Judge Wilson) wrote, "....I dissent from the court's decision in Matter of Kelly v. DiNapoli; under any standard, his injury should be deemed accidental. Moreover, the entire statutory scheme concerning accidental, and performance of duty disability desperately needs legislative attention. Even a cursory survey of case law reveals gross, inexplicable inconsistencies, largely derived from the law itself. The legislative scheme is difficult to apply in the context of inherently hazardous employment, and the legislative history offers no guidance. The courts have added to the confusion, to the point that it is almost a guessing game when trying to decide how cases will be resolved." Kelly v. DiNapoli, 30 N.Y.3d 674, 686 (N.Y. 2018)". Judge Wilson also made the following observations and opinions:

“Although the hearing officer recommended approving his accidental disability request, the Comptroller denied it on the ground that responding to emergencies is an ordinary duty of police officers. ” Kelly v. DiNapoli, 30 N.Y.3d 674, 687-88 (N.Y. 2018)

“The Comptroller's rationale is unsupportable as a matter of law, because it rests on the proposition that, because police officers have emergency response as part of their jobs, anything that happens to them as part of responding to an emergency is not an "accident."” Kelly v. DiNapoli, 30 N.Y.3d 674, 688 (N.Y. 2018) the State Legislature

“Precedent offers little help in deciding this case. Although we have instructed courts to apply the above "commonsense" definition of accident, the oft-irreconcilable results seem anything but.” Kelly v. DiNapoli, 30 N.Y.3d 674, 688 (N.Y. 2018)

"Currently, Retirement and Social Security Law § 363 awards greater disability benefits to officers who are injured due to "accidents" than to those injured in the performance of duty, absent any accident. The results often defy common sense: Officer Kelly would have received greater compensation if he had slipped when getting up from his chair, tripped over VCR cables in the police station, or backed into a spectator during a police-sponsored boxing match, than the majority now gives him for risking his life to save a family and his fellow officer during an unprecedented hurricane when no other help was available. Our case law consistently documents this absurd unfairness."

Kelly v. DiNapoli, 30 N.Y.3d 674, 690 (N.Y. 2018)

Although the above-mentioned case tackles a different section of Retirement law than my case, I present it, as it clearly demonstrates how unfair the Comptroller's office, and even the courts, can be in deciding disability claims. This particular case caused the New York Courts to clarify the definition of 'accident' for disability retirement purposes.

Besides the fact that the Comptroller failed to provide any evidence against me they were probably relying on the circumstance, that based on the medical evidence available in the mid 1990's, it would be impossible for me to prove I had a condition which permanently incapacitated me from performing my duties. I have three valid justifications as to why I could not meet this burden of proof, yet they support my position regarding my condition being permanent.

1) As I previously pointed out, post-concussion syndrome was a known medical condition when I was injured. The fact that the syndrome is defined as "...lacking objective defects." makes it practically impossible to prove other than taking the patient's (in my case, victim's - for lack of a better word) word for it. This is essentially like trying to prove a negative. Trying to prove one has symptoms which are not objective (observable) is like trying to prove God exists. Either you believe it, or you don't. So, either I'm a liar or I'm not. There is no objective proof that I am or ever have been.

2) Once the State Police terminated me, it essentially made my condition a "permanently incapacitating" one.

3) During Retirement hearings one is prohibited from using decisions from other hearings or trials as evidence since the Comptroller's office was not a participant in the hearings/trials. The legal term is "collateral estoppel". I was precluded from using the Workers' Compensation decision of permanent partial disability as evidence in the retirement hearing. In the interest of fairness, it should not prevent the Comptroller's Office from considering whether that decision would impact my ability to ever get a police position with any department in New York State. In reality, I can't imagine any Police Department that would hire someone who had been adjudicated by the NYS Workers' Compensation Board as having a 49% permanent partial disability. Furthermore, how would any police department in NYS be able to get me coverage under their workers' compensation insurance coverage? The liability on any department would be too great and I'm sure any insurance carrier, for any police department, would not allow it. Perhaps this is why, after I interviewed for both the LeMoyne College and Syracuse University campus police departments, I never received a call back.

4) Finally, in civil cases (which a retirement case essentially is) the burden of proof falls on the plaintiff (in my case, me) to provide a preponderance of the evidence to prove their case. In my case I provided two witnesses who had seen me multiple times, each, thus they knew me and my issues better. They both testified that, based on their medical knowledge, I was permanently incapacitated from my duties as a police officer. The Comptroller's attorney failed to provide any contradictory evidence, nor did any of his doctors' state, that I was fit to return to duty as a State Police Investigator or do any form of police work. So, I would say that regarding my case I had 100% of the evidence as the Comptroller provided none.

What is Postconcussion Syndrome?

The Merck Manual was first published in 1899 as a small reference book for physicians and pharmacists. It is published annually and has grown in size and scope to become one of the world's most widely used, comprehensive medical resources.  As previously stated, the 1994 edition, defines Post-concussion Syndrome as follows: A syndrome including a variety of imprecise perceptual symptoms, but lacking objective defects. It further states, "After a mild head injury, headache, dizziness, difficulty in concentration, variable amnesia, depression, apathy, and anxiety are common, more so than after severe head injuries. Considerable disability can result." Hence the knowledge that minor head trauma could lead to "considerable" disability was a known possibility thirty years ago.

Much more knowledge about concussions and Traumatic brain injury has been gained in recent years mostly due to the studies of CTE (chronic traumatic encephalopathy)

in football players.

The NYS Department of Health website defines concussion as follows: "A concussion is a type of traumatic brain injury caused by a bump, blow, or jolt to the head that can change the way the brain normally works. Concussions can occur from a fall, impact to the body, or collision that causes the head and brain to move quickly back and forth." The website further defines traumatic brain injury as follows: "A traumatic brain injury (TBI) is an injury to the brain or skull caused by an external force, such as a strike or impact. Brain injuries are often permanent and disabling, unlike other injuries, such as broken legs or cuts that can heal." It further states, "The leading causes of TBI continue to be falls, motor vehicle crashes, and assaults."

The Department of Health website also posts a comprehensive concussion fact sheet from NYU Langone Medical Center which is recognized by Vizient Inc. as the No. 1 comprehensive academic medical center and the No. 1 ambulatory system for quality and safety in the United States. The fact sheets (which pop up when you search "concussion") contain some of the following facts:

1) The number one cause of injury is listed as "Traffic Related"

2) Concussion • Complex process resulting from an impulsive blow-can be to body or head • Any new neurological symptom like headache, dizziness, fogginess • Loss of consciousness in less than 10% • Nearly 4 million a year, may be an underestimation.

3) No diagnostic test for concussion.

4) Summary •TBI/Concussion is common •Small percentage of mild TBI develop chronic problems •Referrals as needed •Neurological change •Treatment for those slow to recover •Much remains to be learned re: •Objective diagnosis •Effectiveness of treatments •Proper identification

The Department of Health publishes its own fact sheet for teachers and coaches, titled - "When in Doubt Take Them Out". This fact sheet defines concussions as follows: "What is a Concussion? A concussion is a type of traumatic brain injury (TBI) caused by a bump, blow, or jolt to the head that can change the way the brain normally works. Concussions can occur from a fall, impact to the body, or collision that causes the head and brain to move quickly back and forth. Even a “ding” or “getting your bell rung” can result in a concussion and should be evaluated by a health care professional."

Conclusion

First and foremost, I want to say that all of the current medical evidence proves conclusively that the diagnosis of post-concussion syndrome was the correct diagnosis of my condition and that, in my case, it was a permanent, disabling condition. Just because the medical proof wasn't discovered until years later, does not diminish the fact that I've had these symptoms for over thirty years now and the on-duty accident I had on October 12, 1993, was the precipitating incident that caused this.

Secondly, I hope this page will find its way to the Governor, the Comptroller, the Superintendent of State Police, and any other persons who may be able to recognize the error of the State's ways and find a way to right an egregious wrong, the fixing of which is long overdue. In the event they can't see their way to make this right, I will pursue this, using whatever avenues are available, as I have nothing to lose.

In reading this, I don't want you to think I haven't pursued a resolution to this previously. I have written numerous letters to our Governor(s), Legislators and State Senators, all to no avail. It is my hope that this blog will reach the right people and strike the right chord to finally get me my just benefits. If not, I will continue to fight this to the Supreme Court if I must. The disregard of one's right to due process should not be taken lightly and I will pursue this as far as is necessary on behalf of myself and anyone else who has suffered the same deprivation at the mercy of New York State.

It seems the Comptroller has lost sight of the purpose and essential nature of the retirement system. It is to provide for the welfare of its members whether through providing a service retirement (pension) for those who have attained the appropriate number of years served for such benefit or providing a disability pension for those who, through no fault of their own, have been unable to complete their service due to injury.

It is time for the Comptroller, the Courts, the Legislature and the Governor to look at this crazy, unjust and out of control Retirement System and take a more practical and commonsense approach to its mission and its operation.

Some changes I would like to see made, are the following:

1) In cases of injuries incurred on-duty or in the workplace - If an employee has employer paid health insurance, they should not lose their health insurance if they cannot return to work.

2) In any disability claim where there is no question the injury occurred on-duty (at work) the burden of proof should fall on the Comptroller to prove, by preponderance of the evidence, that the injured person is not permanently incapacitated from their employment.

3) The State Police must get some type of legislation in place that, in the future, prevents the State from doing to its members, what was done to me.

I also write this on behalf of any former State employee who has been unjustly deprived of any earned or promised benefits. I am posting this and pursuing it on your behalf as well. If you are someone, or know of someone, who has suffered a similar fate as mine I would love to hear from you.

THANKS FOR READING.

William J. Piekiel