Newsday, by Brian Donovan and Stephanie Saul

By Brian Donovan and Stephanie Saul

Raymond Newbold was a 41-year-old Nassau police officer when he fell and injured his knee on the job. The state pension system declared him disabled, and he retired on a disability pension. But today he works as a lifeguard at Jones Beach, where his supervisor says he runs, jumps and swims extremely well. His disability pension: $49,568 a year, tax-free.

Richard Franzese was head of the Suffolk narcotics squad and a rising star until the department charged him with sabotaging a drug case. Two days before his departmental trial he had an on-duty car accident. As a result, he said, he often fell asleep involuntarily and couldn't concentrate. One doctor suspected he was malingering, but others disagreed. The state declared him disabled before his charges could come to trial. Today, at 47, he's a state-licensed private investigator. His disability pension: $56,823 a year, tax-free.

Robert Rich was a 30-year-old Nassau police officer when he said he slipped on applesauce from an overturned tractor-trailer. He gave conflicting versions of the incident. For years, he complained of neck pain and fought to retire on disability, but the department declared him a sick-leave abuser. After 15 years, the state found Rich disabled, partly based on a psychiatric report that said he truly believed he was disabled. Police later learned Rich had run a lawn-mowing business while complaining of his injuries. His disability pension: $60,471 a year, tax-free.

A boom in police disability pension claims on Long Island over the past decade has cost taxpayers tens of millions of extra dollars and produced dozens of cases like those of Newbold, Franzese and Rich, a Newsday investigation has found. Hundreds of officers have taken advantage of loose guidelines and weak oversight in the state's police disability pension program to win lucrative, tax-free windfalls at public expense.

The police disability system, whose financial rewards have been stretched and sweetened over the years by the State Legislature and the courts, has evolved into a program that invites malingering and fraud and pays a large portion of its benefits to officers whose injuries had nothing to do with fighting crime. Long Island police officials believe that as many as one in three disability claims may be fraudulent or highly exaggerated.

"The original purpose was a bona fide, good, humanitarian purpose," says Suffolk Comptroller Joseph Caputo. "A policeman or woman gets hurt on the job, they should be protected and provided for. But the benefits have been stretched and stretched to the extent that in some cases now it's abused - without question it's abused."

In some recent years, one third of Long Island police officers who retired received disability pensions - the highest rate in the state, higher than many big cities such as Los Angeles, Boston and Washington and as high as New York City. Overall, more than 1,000 former Nassau and Suffolk officers are collecting almost $34 million a year.

Those who win the disability lottery, as they say in police slang, get up to three-quarters of their final annual salary - often inflated by last-year overtime - with no federal or state tax or Social Security taken out. That can amount to as much as several hundred thousand dollars more than a regular pension, which is subject to federal taxes, over their retirement years. Many also collect Social Security disability payments - in effect, a second tax-free pension.

Retired in their 30s or 40s, they are free to engage in vigorous sports, enjoy a life of leisure or pursue a new career. Most have no limit on their earnings. Even those with strenuous jobs, or new jobs in law enforcement, don't have to fear ever losing their pensions. In what Deputy State Comptroller John Mauhs described as a flaw in the system, disability pensions are considered permanent and aren't re-evaluated after they're granted.

Former Suffolk Police Officer Albert Wieda can jump off cliffs to fly his hang glider without worrying that he'll jeopardize his disability pension, which was granted for what the state said was a permanent and disabling groin ailment he said he got after he moved the spare tire in his police car. Former Nassau Police Sergeant Neil Maiorino can patrol the streets of the village of Head of the Harbor as director of public safety without endangering his pension, which he received after slipping on paper towels at police headquarters. Police officials say that most cases are legitimate. And union leaders say they have documentation for every disability application that is filed.

"If . . . you get injured in the line of duty and you're entitled to a benefit, then you should get that benefit," said Nassau Police Benevolent Association President Gary DelaRaba, who acknowledges that there are the "appearances of some abuses."

"The way you lose a benefit is by abusing it," DelaRaba said. And police and county officials on Long Island say the system does breed abuses. Often the ailments that lead to disability are the bad-back problems common to middle age. Often the mishap is a slip-and-fall that has nothing to do with apprehending criminals and that nobody else witnessed.

Some of the claims come from officers in trouble, those facing criminal or departmental charges. And if the officer retires on disability, departmental charges are automatically dropped. One former Nassau officer collected his tax-free disability pension payments of $32,304 a year while doing time in Attica for drug-dealing.

Long Island's strong police unions have helped shape the lucrative system, and they continue to exert strong influence in Albany and on Long Island. Many of the pension applications are shepherded through the system by a small circle of lawyers and doctors. Several of the law firms have strong ties to the unions, which make the same expert legal representation available free - or at nominal cost - whether they be officers convicted of crimes or those injured by criminals.

In some states, disability pensions are just for those who can't work at all, and disability retirees caught in vigorous physical activity have been charged with crimes or have lost their benefits. But in New York, seemingly outrageous disability cases can be perfectly legal, and fraudulent ones are rarely if ever prosecuted.

Suffolk Police Sgt. Brian Bugge investigated a case in which his department charged an officer with pension fraud. The state approved the pension anyway. He said: "There's absolutely no penalty for deceit or manipulation or outright fraud. The state has no system in place to control that. A cop who decides to lie has nothing to lose. The worst that can happen is they'll say you're not disabled. So you might as well try - the union's paying the legal fees."

Nassau and Suffolk police officials say they've repeatedly tried to alert the pension system to applications they considered fraudulent, and have even sent state officials videotapes of officers engaged in vigorous activity at times when they were telling doctors they could hardly move. But they said they found the state uninterested and uncooperative.

"To show you how blatant it is, a lot of these guys, when the state grants them their retirement, we see them a few months later, when they come in for their final check or whatever," said Sgt. Vincent Ward, former head of the Suffolk Police medical unit.

"And they walk in fine . . . And he says, 'It's amazing - I went to Lourdes, and I got the miraculous cure.' It's like they're rubbing your nose in it." Lourdes, a Roman Catholic shrine in France, attracts millions of visitors who believe that miraculous cures have occurred there.

Nassau Police Commissioner Donald Kane and Suffolk Police Commissioner Peter Cosgrove said Long Island's high disability rates reflect changing attitudes among officers, who now file detailed reports documenting bumps and sprains that they would have shrugged off a generation ago. "I think the whole philosophy about the job has changed over the years," Kane said. "The old-time cop . . . you crawled to work if you had to, that was the code."

The pension system is part of the state comptroller's office, but both the present comptroller and his predecessor had little to say about its operations. Comptroller H. Carl McCall, who took office in May 1993, said in April that he was just beginning to look into how the disability system works.

"Since I've been here I've heard a lot of concerns about the whole system, the process, the legislation that really determines what happens with disabilities . . . It seems to me now that I've been here for almost a year this is one of the responsibilities I have - that it's probably appropriate for me to review the entire system, in terms of how it works," McCall said.

Former Comptroller Edward V. Regan, who stepped down early last year, talked briefly about his concerns over Long Island disability rates but declined to be interviewed in detail. He said that for some months after an internal study in 1991 highlighted the problem, pension officials simply stuffed applications from Nassau and Suffolk into drawers and let them gather dust. He attributed the problem partly to the Long Island lawyers who specialize in police disability cases, whom he described as "very, very, very clever lawyers who have taken advantage of everything."

Mauhs, the top-ranking civil servant in the system, said his staff has merely been running the program under the rules created by the courts and the Legislature. In late 1992, he said, the system instituted some tighter guidelines for disability applicants who could still work in light-duty jobs or who earned substantial overtime before applying. Pension officials cited a recent decline in Long Island's police disability rate as evidence of stronger administration.

But the PBA's DelaRaba said the decline simply reflected the state's concern over Newsday's investigation, which started more than a year ago.

Referring to the investigation, he said, "The light that you shed on this . . . has created them to go slam on the brakes." DelaRaba said that last year "when we went upstate to talk to them . . . the buzz was that everybody knew that this thing was coming out. We haven't heard from anybody since then."

Since the pension system was formed for police and firefighters in 1967 it has operated largely in secrecy, with little outside oversight. State law makes police personnel and medical records confidential, and neither the Legislature nor the executive branch has ever monitored the system's decision-making.

Newsday's examination of the police disability pension system was based on hundreds of interviews and thousands of pages of police and medical records. Over the next week, Newsday will present its findings in a series of stories. Among the key findings:

Most injuries don't involve catching crooks. State and police officials say most injuries that produce disability pensions occur without a lawbreaker in sight. Many police get pensions from unwitnessed slip-and-fall claims during mundane activities that ordinary citizens risk all the time, such as working in offices or getting in and out of cars. One fell out of a chair; others said they tripped on rugs, stairs, wet pavement, ice in parking lots, paper towels or a telephone cord. Former Suffolk PBA president Edward Johnson collects $33,011 a year merely for bumping his elbow as he walked through a doorway.

Officers in trouble tap the system. Long Island officers convicted of drug dealing, burglary, child molesting and attempted murder have softened their falls with disability pensions. Nassau police Officer Ronald Hertz, charged with dealing cocaine, kicked down a door seeking vengeance on a man he suspected of being an informant the day after the state found him disabled with a back problem, then collected his tax-free $32,304-a-year disability pension while serving time in Attica.

Others have escaped departmental charges by retiring on disability. Once an officer retires, departmental charges can no longer be pursued. Suffolk Lt. William Birks, charged with insubordination in 1991 for refusing to take a "for-cause" drug test, retired on a $55,957-a-year disability pension before his case could be prosecuted. The state comptroller's office has repeatedly proposed bills to cut off pensions for police and other public employees convicted of certain crimes, but the bills always die in committee.

Evidence suggesting fraud isn't pursued. Senior police officials say they've repeatedly given the state strong evidence of fraud, including surveillance videotapes showing disability applicants doing things they'd claimed they couldn't do. Suffolk police Officer John Luciano, now retired on a $34,116-a-year disability pension, was videotaped working vigorously on his boat right after he told a county doctor he was laid up with back pain. But police officials say they've been rebuffed by pension officials who were uncooperative and uninterested. The state system has no fraud investigators and only 15 examiners to screen approximately 4,500 disability applications a year from police and other municipal employees statewide. Although state law gives the system broad powers to look into the veracity of disability claims, Mauhs said probing fraud isn't part of his agency's job: "We are not an investigative agency, we're a retirement system."

Pensions are never re-evaluated. Some disability retirees work in physically demanding jobs or play vigorous sports. Former Nassau police Officer Paul Fedorys is a jail guard and is required to be able to subdue unruly prisoners. Former Suffolk Lt. John Ryan plays shortstop on a local softball team. Former Nassau Police Officer Edward Jensen advertises transmission installation. Former Nassau Police Officer Vincent Bovino operates a mail-order business selling a drink designed to thwart drug tests and works out regularly with exercise machines. Former Nassau Police Officer Michael Yarocki does carpentry and says he could return to full police duty. And even though pension officials know that former Suffolk Police Officer Albert Ianuzzi filed a document in court admitting he isn't disabled and could work, they say they can't take away his pension. Some other states require periodic re-examinations and have taken away pensions in some cases, but New York doesn't.

A few doctors and lawyers handle many cases. A small group of Long Island physicians and attorneys has played a central role in the disability boom, handling scores of cases. Police and county officials criticize two orthopedists, in particular, as too quick to find their police patients disabled, and records show some of their patients got disability pensions even though they were caught in vigorous activities.

One was Nassau Police Officer Robert Grzymala, who told the department he had too much back pain to testify in a criminal trial, then was caught playing 23 consecutive holes of golf two days later. Four law firms with police union connections handle most of Long Island's police disability cases, sometimes working closely with the doctors. Police unions pay all or most of many applicants' legal fees.

The state has failed to curb abuses. Some other states - California, Connecticut, Florida, New Jersey, Pennsylvania, Texas - have a variety of systems in place that officials say help to eliminate some of the abuses found on Long Island. They include regular physical re-evaluations, prohibitions against some occupations, loss of pension for conviction of certain crimes and vigorous pursuit of fraud. In New York, such proposals for reforms have died in legislative committee, victims of strong police union lobbying effort on one side and little public interest on the other. Twenty-eight years ago, then-State Comptroller Arthur Levitt warned that the system could "get out of hand" if the Legislature kept increasing benefits. Many officials think that is exactly what happened. "Unless someone is pushing on the other side, i.e. someone representing the taxpayers, the process lets this stuff slide through," said Robert Helm, former counsel to a state commission that studied pension issues.

Former State Comptroller Regan said he began to realize a few years ago that something was odd about the number of disability pensions awarded to members of the Nassau and Suffolk police departments. Long Island applicants seemed to be getting too big a slice of the pie.

As the state's top fiscal officer, Regan's job included supervising the system that provides pensions for all police officers and firefighters in the state except those in New York City, which has its own pension fund. He ordered his staff to look into what was going on and give him a report.

When Regan got the study in November 1991, the numbers confirmed his suspicions. The Long Island statistics were way out of line with the rest of the state.

Taken together, the five largest cities in the system - Buffalo, Syracuse, Rochester, Albany and Yonkers - had about 2,900 police officers. In the five years from April 1986 through March 1991, the five cities had 62 officers retire on disability.

During the same period, Suffolk County, with about 2,500 officers, had 202 get disability pensions. Nassau, with about 2,800 officers, had 225 disability retirees. For both Long Island departments, the annual percentage of retirees getting disability pensions went as high as 34 percent, compared with the statewide average of 17.6 percent. Officers from Nassau and Suffolk, the report said, "are filing for disability at an unusually high rate."

Since that report, the comptroller's office has released new figures that show a slight increase in pension awards for 1991.

The percentage of applications approved by the retirement system was higher for Long Island police, too - 84 percent for Nassau and 87 percent for Suffolk, compared with an average rate of 68.4 percent for the five cities.

Currently, the 605 Nassau officers retired on disability collect about $19.1 million a year. The 465 Suffolk disability retirees get about $14.7 million a year.

Nassau and Suffolk officials who deal with police disability claims are quick to criticize the administration of the state pension system, but they also say that officers are reacting in a predictable way to the sweetening of the program over the past few decades by the State Legislature.

Assistant Nassau County Attorney Peter McDonald, who heads the county unit that monitors employee injuries, said state disability pensions have become "just too easy to get. We have sent reports from our independent consultant doctors to Albany in which these consultants, after examining the police officers, have said 'no disability.' However, the state pension system comes back with a notice that the pension has been granted."

"If the system makes the likelihood of getting three-quarters so great and the down side is just that you don't get it, that's all, no penalty for questionable claims, what has anyone got to lose? The legal and medical advice given to police engenders a mentality that unless a person is very naive, you're foolish, you're entitled to this; if you don't take it, you're stupid."

Both Long Island police commissioners, Kane and Cosgrove, said police attitudes have changed significantly since they were young officers.

Kane: "If you were the detective who was 'squealing' - catching cases that day - you did not want to be sick and have somebody else have to catch your squeals. The peer pressure was enormous. That doesn't exist today. Matter of fact, you'd probably be considered - 'What are you, a dummy?' You know, 'What are you doing here?' Because if you sign off sick, then there's a chance for somebody else to make overtime."

Cosgrove: "When I came on, this was an all-male culture, and it was a real macho environment. If you made a difficult arrest and you rolled around on the floor, you didn't want to admit you were hurt. You just shook it off and kept working. I think over the years that's faded."

Disability pensions for police in New York have existed since early in the century. But for many years, police unions faced a serious political handicap in their pursuit of improved benefits. Their members belonged to the same pension system as most other state and municipal workers, so their proposals for benefit increases were judged according to the cost of providing those increases to the whole 200,000- member system. Often their requests were considered too costly.

Through the early 1960s the unions lobbied the Legislature for a change that would cost nothing extra at first but would make future benefits increases easier to obtain. The proposal would set up a separate pension system just for police and firefighters. Long Island's volunteer firefighters are not covered by this system.

A key ally proved to be then-state Sen. Thomas Mackell (D- Queens), a former New York City police officer, who sponsored a bill to create such a system. "It has become extremely difficult in recent years for policemen and firemen to obtain certain benefits," Mackell wrote in a letter to Gov. Nelson Rockefeller in 1966, calling the situation "grossly unfair."

"Because of the very nature of police and fire duties, the hazards involved, the hours involved, the pressures and tensions, etc., police and fire work is a rather unique profession and the benefits applicable thereto are likewise unique." A separate system, Mackell argued, would "place policemen and firemen in a position where they have a fair opportunity to obtain the benefits and protections their professions demand . . . "

Then-State Comptroller Arthur Levitt supported the measure. But according to records from legislative archives, Levitt also sent the governor a memo with a strong warning: " ....the increased cost to the participating employers may be quite substantial. Further, if the benefits of the policemen and firemen are increased, it may well be that the operation of the system will get out of hand."

Nevertheless, the Legislature and Rockefeller approved the measure, and the separate system was set up in 1967. What the police lobby had in mind for the future was explained clearly in a letter to the governor's counsel, Robert Douglass, from the New York State Association of Chiefs of Police: "Our intent with this bill is to be in a position where we can seek special benefits for policemen, which are necessary because of the nature of their work.... "

The next major political beachhead for the police unions involved the question of what constitutes an accident. During the 1970s and early 1980s, police disability applicants found that the pension system and the courts were rejecting many applications by using narrow definitions of what kinds of mishaps could be considered accidents.

Officers who hurt their backs lifting heavy people on trundles, for instance, weren't considered accident victims because such an assignment was considered an expected part of the job, an "incident" rather than an "accident."

The police lobby pushed to add a new kind of "performance of duty" disability pension covering any on-the-job injury, regardless of whether "an accident" took place. As Floyd Holloway, a police lobbyist from Long Island, said in a 1984 letter to Gov. Mario Cuomo's office, "Injuries such as carrying a trundle, slipping on steps within the stationhouse, or other injuries 'incidental' to police employment will now be eligible to receive the disability."

At first glance, performance-of-duty disability pensions, paying 50 percent of final salary, appeared less costly than accidental disability pensions, which pay up to 75 percent. But as some critics saw it, the devil was in the details: Pensioners in the new category, unlike those in the accidental category, could also collect workers' compensation payments without any reduction in their state pension.

The State Insurance Department warned that the change "would produce very substantial increases in such benefits, to the extent that the benefit under the Retirement System plus Workers Compensation plus the Social Security disability benefit would in many, if not most, cases exceed the salary" the retiree made while working. The state's Conference of Mayors opposed the change, contending that: "A person should not receive substantially more money in tax-free disability payments than would be received if employed."

Sponsored by state Sen. Richard Schermerhorn (R-Newburgh) and Assemb. Joseph Lentol (D-Brooklyn), the measure sailed through both houses of the Legislature without a single dissenting vote and was signed by Gov. Mario Cuomo.

Lawyers for the police unions have also challenged the pension system in the courts, seeking to broaden the legal definition of an accident. There, too, they have won significant victories. For instance, Michael Axelrod, then the Nassau PBA's lawyer, won a case in 1985 setting the precedent that a slip-and-fall mishap need not include an actual fall to be considered an accident - just a slip is sufficient.

The next big pension issue was debated in 1987. Police and civil service unions lobbied to kill restrictions on disability retirees' outside income after they passed the date at which they would have become eligible for a regular pension. For police, this would be 20 years from when they joined the force; for civilians, after age 55.

Opposing the measure were the State Insurance Department, the Division of the Budget and the state's pension commission, an advisory agency that's not part of the pension system. They argued that a disability retiree could wind up, as Insurance Superintendent James Corcoran put it, "financially better off than one who remained on the job," collecting a state pension, Social Security disability checks and an unrestricted private income. The Governor's Office of Employee Relations also argued against the change: "Disability retirement was designed to provide economic support for employees who could no longer perform their job duties and had a diminished capacity to earn a living."

But the Metropolitan Police Conference, a lobbying group, argued that limiting outside income "creates unnecessary hardship on the retired member and his family." Comptroller Regan's office wrote to Cuomo's counsel, "We have reviewed this measure and have no objection to its enactment." Sponsored by Schermerhorn and Assemb. Frank Barbaro (D-Brooklyn), the bill passed the state Senate unanimously and the Assembly by 144-1, with the entire Long Island delegation voting yes, and Cuomo signed it into law.

The lone dissenter, Assemb. Robert D'Andrea (R-Saratoga Springs), said he objected to retirees collecting both disability pensions and private paychecks. "It gets very expensive when you add up the number of people in these situations," he said.

Cuomo's office would not elaborate on why the governor had signed the pension-enhancing bills, except to issue a stock response. "He thought it was fair and reasonable," said deputy press secretary Thomas Conroy, when asked about each of the bills.

Deputy Comptroller Mauhs said the pension system got an upsurge in disability applications as soon as the income restrictions were lifted, a step he said he considered a mistake. But although there were some warnings along the way that the state's liberalizing of the police disability system could carry a big price tag, a dispute among bureaucrats over dry technicalities, carried out in bureaucratic language, seldom makes news, and the changes in the system took place with little public notice.

In the long run, the decision to give police their own pension fund led to a system that treats them better in some important ways than civilian government employees. The state pension system provides a disability retirement option for all employees. But in practice, the benefit is easier for police to get. Because their work requires them to be in top physical condition, they argue they are disabled for their occupation with only minor orthopedic problems. The system is also more generous for those who aren't disabled. They can collect a regular retirement pension after 20 years' service, while civilian employees must wait until they're 55. And police don't have to contribute any of their own money to their pensions, while many civilian employees have to contribute 3 percent of their salary.

Some officials say the political support enjoyed by police in a time of rising concern over crime - when some disabled officers can become celebrities who ride in parades and receive ovations - has made both politicians and civil servants disinclined to question disability applications, especially when they don't see anyone urging them to do so.

"I think the big problem with the system is there's not always someone on the other side," said Helm of the pension study commission. "The Legislature wants to get elected. You have the policemen, or unions generally, who want to get certain benefits. Unless someone is pushing on the other side, i.e. someone representing the taxpayers, the process lets this stuff slide through. Then things get out of hand."

That's the same phrase - "out of hand" - that former State Comptroller Levitt used in his warning 28 years ago about the possible high costs of giving police and firefighters their own pension system. And given the State Legislature's record on police benefits issues, Long Island police officials say they are unhappy but not surprised that they have found little enthusiasm in the state pension system for cracking down on what they consider suspicious cases.

"There are people out there who we have investigated and we feel strongly should not have received accidental disability retirement," said Nassau Chief of Support Robert Sefton, a former commander of the department's medical unit. "But the state, in their wisdom, has determined that they're entitled to it, despite our objections or evidence to the contrary that they were not disabled."

The Nassau and Suffolk police medical units monitor officers' medical claims and investigate those suspected of malingering. Det. Sgt. Robert Kiesel, medical sergeant in Nassau for the past 12 years, said he believes that about one-third of disability pension applications are phony or highly exaggerated.

His former counterpart in Suffolk, Joseph Michaels, was asked what he thought the equivalent figure was in his county. "About 35 or 40 percent," said Michaels, who is now an aide to County Executive Robert Gaffney serving as chairman of the county's Criminal Justice Coordinating Council.

The case of Nassau Police Officer James Molloy, who retired in 1991 at age 43, is typical of those who have left police officials frustrated. He claimed a back injury from a car accident, but the medical evidence was contradictory. His doctor and some test results supported his claim, but doctors who examined him for the county and state said he wasn't disabled.

While Molloy was on sick leave, the department got a tip that he was running a bar owned by his parents, Murphy's Law Pub in North Merrick. Police are prohibited by state law from working in places that sell alcohol. Investigators observed Molloy working at the bar and noted that the place had a gambling machine. Molloy was arrested in connection with working in a bar and promoting gambling, but a grand jury declined to indict him.

At Molloy's pension hearing, Kiesel testified that late one night he watched Molloy help a bar patron push a large car out of a snow bank where it was stuck, and Sgt. William Dempsey testified that he'd seen Molloy bend and squat while working at the bar with no sign of back problems. The hearing officer rejected Molloy's application, but the system later reconsidered his case and approved a $60,576-a-year disability pension.

"Give me a break," was Kiesel's reaction. But a state pension official said a re-examination found that Molloy's condition had deteriorated. Molloy didn't want to discuss his case. "My side of the story is I'm retired and I'm going to stay that way," he said.

Deputy Insp. John Sharp, commander of Nassau's Seventh Precinct and former head of the medical unit, said the department actually made more headway with the Molloy case than it usually did in trying to influence the state pension system. The usual situation, Sharp said, was that Kiesel and other investigators in the unit would develop evidence that a disability claim was fraudulent, only to have the state take no interest in pursuing or even discussing the evidence.

"We would follow them [officers on sick leave] and find them someplace - shopping, at home - doing things that were not possible to do by someone who claimed their level of disability."

Often, Sharp said, they shot videotapes of police on sick leave engaged in physically demanding activity and offered them to pension officials in Albany. "Those were the kinds of things we were prepared to offer New York state, and they were not interested. When I say they were not interested, I'm telling you - never, ever."

© 1994, Newsday

By Brian Donovan and Stephanie Saul

CASE STUDY:
ALBERT WIEDA, Hang-glider Pilot

Although the state pension system says he's disabled with a painful groin problem, retired Suffolk Police Officer Albert Weida says he loveds to fly hang gliders - a strenuous sport in which enthusiasts jump off cliffs, catch an updraft and soar hundreds, sometimes thousands of feet above the ground.

"I do it for the enjoyment," Wieda, who's also a weightlifter and motorcylist, said when first approached by reporters earlier this year to discuss his hobby. "Ijust love getting up there and flying around. It's about as free a feeling as you"re going to get without getting stoned."

Wieda was hang-gliding with friends in the mid-1980s, one witness says, while at the same time trying to win a disability pension, citing a serious groin injury. Wieda's doctor diagnosed him as disabled, but medical records examined by Newsday show that three doctors who examined him for Suffolk County found him normal. A diagnostic test called for an intravenous pyelogram also found nothing wrong. The state pension system rejected the initial application.

Nine years passed between the 1976 incident that Wieda said caused his problem and the granting of his pension. While he filed appeals, testified at hearings and consulted doctors, Wieda also kept busy flying his hang glider, according to one of his gliding colleagues.

Stanley Novak, proprietor of the Long Island Game Farm and a veteran hang-glider buff, said he and Wieda were part of a group of enthusiasts who flew weekly, sometimes more often, throughout the first half of the 1980s. Usually they would launch from a cliff in Mattituck, Novak said, and fly over Long Island Sound along the North Fork coastline.

"Al could stay up for hours," Novak said. Wieda's gliding friends knew that he was seeking a disability pension, Novak said, but Wieda always maintained that his case was legitimate.

Once a glider is aloft, flying it is not physically taxing. But getting up in the air does take effort.

The craft weighs 90 to 100 pounds, and glider pilots carry it on their backs while jumping from a cliff or running down a hill to launch the flight. "The physically demanding thing is muscling that glider around" before takeoff and after landing, Novak said. During the years when they were gliding together, Novak said, Wieda kept fit through frequent weightlifting.

Wieda said in his disability application that his troubles started after the spare tire of his police car came loose from its mounting. When he tried to move the tire back, he said, he slipped and pulled a groin muscle. There were no witnesses.

The following year, Wieda said he developed a painful, recurring infectious inflammation, called epididymitis, of the right testicle.

Doctors disagreed over Wieda's condition. Some found that not only did he have a disability, but also that it was job-related. Others concluded there was nothing wrong with him.

His doctor said the muscle pull had caused the epididymitis and also an inflammation of the prostate. The county, however, challenged Wieda's claim and sent him to three other doctors.

Dr. Carl Mueller of the county's Office of Employee Medical Review examined Wieda and reported: "There is no objective evidence of disease or injury." Dr. Noel Miller, medical director of the county agency, also examined him and concluded: "The examination .... revealed the genito-urinary area to be completely normal." Miller reported that a urologist had also examined Wieda for the county. "The findings of the urologist were anatomically normal. There was no pathology discovered at the examination. There was no evidence of any chronic difficulty in the genito-urinary area." The radiologist who conducted the intravenous pyelogram concluded: "There is no pathology in the urinary tract."

Nevertheless, with the help of lawyers from the Patrolmen's Benevolent Association, Wieda eventually prevailed. The state pension system reversed its initial rejection of his claim. He got his tax-free $19,873-a-year pension in 1985 and retired at age 39.

In several conversations with Newsday, Wieda said he still flies hang gliders regularly, both from hills near his home in Troy, Pa., where he belongs to the Free Spirit Flight Club, and from the cliffs on Long Island's North Fork. "We fly along the North Shore, Rocky Point to Mattituck," he said. His longest flight, he said, was "two and three-quarters hours. The only reason I came down was that it got dark."

When a Newsday researcher met with Wieda at his ex-wife's house in Mastic, a hang glider was strapped to the roof of his truck, which had a "I'd Rather Be Hang Gliding" license plate frame.

But later, when another reporter asked about his disability, Wieda changed his story. "I haven't flown in years," he said. In fact, Wieda said, he couldn't recall doing any hang gliding at all since the state declared him disabled.

CASE STUDY:
EDWARD JOHNSON

Suffolk Police Officer Edward Johnson was off-duty and returning from the St. Patrick's Day parade in New York City in 1982 when he rear-ended a car at a stoplight in Smithtown. He refused to take a breath test, but he was arrested, charged with driving while intoxicated and immediately suspended from his job for three days.

Three weeks later, his career in shambles, Johnson, 49, suffered what he said was a disabling injury.

He was walking through the squad room at the First Precinct in North Lindenhurst when he struck his left elbow on a metal door frame, he said. There were no witnesses. Johnson complained of pain in his left elbow, neck and shoulder and numbness in his hand, but doctors could not reach an agreement on Johnson's problem.

His orthopedist diagnosed him as disabled because of the elbow injury. But a county doctor questioned whether his problems were related to the elbow injury at all. Records show that Johnson refused to take a myelogram, considered one of the most definitive tests.

"It was felt that his disability . . . was not related to an injury of his elbow but to a problem in his neck," said Dr. Carl Mueller, a physician who examined Johnson for the county. Johnson had banged his head on the steering wheel when he crashed into the other car, his lawyer said at the time.

Further complicating his case was the fact that Johnson had broken the same elbow at the age of 6, and had undergone an operation to correct the fracture, which left him with a permanent elbow deformity. Johnson also had a heart condition.

Joseph Michaels, then the director of medical evaluation for the Suffolk department, recommended that Johnson apply for ordinary disability, a reduced benefit given to officers with medical conditions that are not job-related. Noting that Johnson was working only sporadically, Michaels wrote his superiors that Johnson's "attendance record would be detrimental to any command."

Between the injury in 1982 and 1988, when he was awarded a disability pension, Johnson worked only 330 days, according to the police department, but for most of his time off was paid at full salary.

Despite questions about Johnson's injury, he was granted a disability pension of $33,011 a year, tax-free, in 1988.

Assistant Deputy State Comptroller John McManaman said the state pension system was aware of Johnson's accident and arrest. But McManaman said there was medical evidence supporting the claim that Johnson's problems were caused by hitting his arm on the door jamb.

"Our doctors tied the disability to the April 10 accident," McManaman said, referring to Johnson's door-jamb incident.

The disposition of the 1982 drunk driving charge could not be learned because the record has been sealed by the court. Johnson was found guilty on departmental charges related to the accident and was fined 20 days' accrued annual leave.

Since Johnson's retirement, records show, he has continued to have problems on the highway, including a conviction for driving while impaired and an unrelated accident in which witnesses said he was on the wrong side of the road.

Johnson did not respond to repeated requests for an interview.

CASE STUDY:
RAYMOND NEWBOLD, LIFEGUARD

The summer sun glints off the water as Raymond Newbold, his body toned from exercise and tanned from lolling in the sun, climbs the ladder and hoists himself into the wooden lifeguard's chair.

The state pension system says Newbold, a former Nassau police officer, is permanently disabled by a bad left knee, injured in January, 1991. But the state parks system says the 45-year-old ex-cop is capable of guarding your life - able to jump from the chair, run down the beach, dive into pounding waves and pull out a drowning swimmer from the sometimes rough surf at Jones Beach.

Even, in the summer of 1992, while awaiting a decision on his disability pension, Newbold continued working as a lifeguard at Jones Beach, state payroll records show.

Newbold, who did not respond to several requests for an interview, retired in 1992 after 19 years with the department.

In January, 1991, Newbold reported that while lifting a heavy person in the cramped bathroom of a Seaford residence, he lost his balance and fell into a wall, twisting his knee. By that autumn, Newbold complained of an inability to walk, and was given crutches, records show.

He underwent arthroscopic surgery in December, 1991, to repair damage to his knee joint. In February, 1992, his orthopedic surgeon, Dr. S.S. Farkas, reported that Newbold "states that he can't run or sit for any long periods of time due to knee pain." Farkas concluded that Newbold was permanently disabled.

By August, 1992, Newbold had been approved for accidental disability retirement by the state retirement system. He receives $49,568 a year, tax-free.

Despite his knee complaints, Newbold was working as a lifeguard during the summers of 1991 and 1992, according to James Dolce, legal coordinator for the state parks commission.

As a lifeguard, Newbold has been paid $7,026.78 for 1991; $7,596.24 for 1992, and $8,081.90 for 1993, Dolce said.

Joseph Scalise, director of water safety for Jones Beach, said Newbold is working there this summer. Scalise said he would have no worries about his own family swimming in the surf with Newbold on duty.

"Ray is able to do running, jumping and swimming at a very high level of efficiency," Scalise said, adding he was surprised to learn that another state agency had found Newbold disabled.

© 1994, Newsday

By Brian Donovan and Stephanie Saul

...[T]he system also awards the lucrative pensions to officers who claim injuries from activities that ordinary citizens risk every day - such as going to the bathroom, walking through a doorway, working in an office or driving around on routine errands.

The phrase "disabled cop" conjures up images of a valiant public servant maimed by gunfire or crippled in a high-speed car chase, left struggling to support a young family.

Even in suburbia, police work can be dangerous and unpredictable, and a few violent encounters on Long Island are the sort that figure in the nightmares of officers and their loved ones. A frightening photo of one such victim hangs in the lobby of the Suffolk Police Department - Officer Kenyon Tuthill, disfigured and partly blinded in 1986 when an irate motorist blew away much of his face with a shotgun.

But often, the disabling police accident on Long Island is far more mundane, sometimes resembling a comic pratfall rather than cops-and-robbers heroics.

And while the unique dangers of law enforcement were the rationale behind New York state's generous police disability pension system, in practice the system also awards the lucrative pensions to officers who claim injuries from activities that ordinary citizens risk every day - such as going to the bathroom, walking through a doorway, working in an office or driving around on routine errands.

Many of the accidents are unwitnessed, forcing police departments to rely on an honor system for reporting injuries. And the vast majority of the injuries - more than 90 percent - are orthopedic, according to the state retirement system. Such injuries and the degree of pain can be difficult to quantify with hard medical evidence.

This combination of an honor system and lack of hard medical verification, senior Long Island police officials say, invites potential fraud.

"The individuals say they hurt," said Dr. Vert Mooney, a professor in orthopedics at the University of California at San Diego. "There is absolutely no test that will guarantee whether an individual injured himself."

"A lot of cops say, `Hey, the system's here, it's got a certain amount of leeway, we can apply, and I'm going to take advantage of it,'" said Suffolk Lt. William Costello, a public information officer for the police department.

The tax-free disability pensions, which pay up to three-quarters of an officer's final salary, often leave police retirees collecting more take-home money than when they were working. Many collect Social Security disability checks in addition to their pensions. Regular police retirements provide only half of an officer's final pay, and federal taxes are taken out.

While the state comptroller's office keeps no statistics on how police officers are injured, police officials say the majority of accidents do not occur in pursuit of suspects, estimating that 50 to 75 percent of the injuries are non-combative and noting that many of them occur in the relative safety of police buildings.

Police union officials, on the other hand, complain that the departments haven't done enough to provide safe working environments.

"Have you ever been through any of these station houses? I tell you, they're a wreck," said Nassau Police Benevolent Association President Gary DelaRaba.

Newsday reviewed the circumstances of dozens of disability cases and found many that resulted from slips, trips and falls nowhere near a crime scene.

Among the disability cases Newsday examined were these:

Nassau Police Officer Clement Maresco. He said he fell in the men's room at his station house. The police contended that his neck injury wasn't job-related, but the courts and the state disagreed. Pension: $48,067 a year, tax-free.

Nassau Police Officer Robert Rich. He said he slipped on applesauce, then fell again while patrolling the roof of police headquarters. But his medical file raises questions about the cause of his neck injury. And two doctors concluded that his physical exam did not support his complaints. Later, police discovered that he ran a lawn-cutting business while complaining of a disabling injury. Pension: $60,471 a year, tax-free.

Suffolk Insp. Philip McGuire. He said he fell face-forward into a wall after catching his shoe on a worn doormat at the Sixth Precinct in Coram, aggravating an old back injury. Diagnostic tests revealed only a mild bulging disc, according to medical records reviewed by Newsday. Pension: $58,670 a year, tax-free.

Nassau Police Officer Angelo Amendolare. He said he slipped and fell on ice at a relief point while trying to unlock his personal car with a coat hanger after locking his keys inside. A police doctor concluded there was nothing wrong with his spine after viewing police surveillance videotapes of him carrying heavy luggage at Kennedy Airport, headed for and returning from a cruise. Pension: $44,325 a year, tax-free.

Nassau Det. John Marjoribanks. He said he fell while brushing snow off his car at the Seventh Precinct in Seaford, aggravating a 1972 injury to his back. But records show he hurt the same part of his back in a drunk-driving crash two years before the slip-and-fall. Pension: $46,327 a year, tax-free.

To some Long Island police officials, cases like these reflect a pension system they describe as all too willing to reward clumsiness and reluctant to look behind the official report of an accident. Pension officials say they're just administering the program according to state law, which contains nothing to rule out disability pensions for slips and falls.

But disability pensions that result from slip-and-fall accidents leave many police officials and rank-and-file officers shaking their heads. Why, they ask, should an officer injured in a slip-and-fall in the safety of police headquarters get the same award as one injured in a shooting?

"If a member steps on his shoelace and falls down, he should not be entitled to the same money as someone who gets shot and is disabled for the rest of his life," said Nassau Det. Sgt. Robert Kiesel, who runs the department's medical administration unit.

A former Suffolk counterpart agreed: "I have problems with guys falling out of chairs, slipping on unknown substances," said Sgt. Vincent Ward. " ....I say to myself, they're getting the same as the guy running after a prisoner and wrestling him to the ground." Ward formerly ran the Suffolk medical evaluation unit, which monitors police out on sick leave.

Yesterday, Newsday reported that over the past decade Long Island police have been winning disability pensions at a substantially higher rate than those elsewhere in the state and in major cities with higher crime rates, such as Boston, Los Angeles and Washington, D.C. In some recent years one out of three Nassau and Suffolk police officers have retired on disability, compared with less than 18 percent in the rest of the state system.

The law providing police with disability pensions does not clearly define an "accident." The comptroller's office has relied on the courts for guidance on whether an "accident" occurred.

In the early days of the police pension system, the state took a hard line on what constituted an accident eligible for a disability pension. But over the years, partly as a result of court decisions and legislation broadening the system, the state has awarded disability pensions for the most commonplace slips and falls.

The standards have become more and more liberal, prodded by aggressive lawyers challenging denials of disability retirement claims. In recent years, the courts have upheld the idea that if a police officer slips, even in headquarters, it constitutes an accident. As defined by the Court of Appeals in 1982, an accident is a "sudden, fortuitous mischance, unexpected, out of the ordinary and injurious."

In another case involving a New York City officer, the State Court of Appeals said in 1984 that it was an "accident" within the meaning of the disability law when the officer lost his balance after he stood up from a chair.

After those court decisions, the state pension system was forced to loosen its definition of an accident. Finally, in 1984, faced with growing confusion over the definition of an accident and an effort by the state to reform the system, the Legislature agreed to a new disability category that allows police to collect a pension for any job-related injury, whether the result of an accident or not.

For police hired after Jan. 1, 1985, this replaces accidental disability. Police hired before 1985 have the option of applying for accident disability or the new category.

This category, called "performance of duty disability," pays a reduced benefit of 50 percent of final salary. But in this category, police may collect workers' compensation at the same time as the disability pension. In many cases, the workers' compensation payments, which are not taxable, could drive the officer's total collection to more than 75 percent of his final salary, with no taxes due.

Arguing against the new pension category, the Permanent Commission on Public Employee Pension and Retirement Systems wrote in a June, 1984, memo that under its provisions, an officer "could receive total benefits far in excess of his actual salary."

In all types of police disability, police are eligible to apply for Social Security disability as well, with no reduction in their state pensions.

With the system's evolution, today it is not unusual for disability pensioners to have received their injuries in slip-and-falls. "The majority are noncombative. More than fifty percent are not due to criminal activity," Kiesel said.

Ward, interviewed last fall, said that of 44 Suffolk police officers then out of work on job-related injuries, only 27 percent had been injured in confrontations. "That means that seventy-three percent of the guys either fell out of a chair, or were involved in a motor vehicle accident, or they slipped on some slippery substance, ice, snow or some liquid on the floor," said Ward.

"They're not good at replacing equipment around here," Nassau's DelaRaba said, complaining of station house conditions. "I remember in my precinct the chairs were so bad they got rid of them. The guys had to stand for three days because they just didn't have any chairs."

Nassau Police Commissioner Donald Kane denied that there was any systemic maintenance problem in the department.

In many cases reviewed by Newsday, the circumstances of slip-and-fall accidents were questioned by the police departments, as was the extent of the injuries the officers said they suffered. Despite that, the details of the accidents get little scrutiny by the pension system. "We are not an investigative agency, we're a retirement system," Deputy State Comptroller John Mauhs, who runs the state pension systems, told Newsday.

State law, however, gives the comptroller's office broad authority to investigate retirement applications, including subpoena power and the ability to administer oaths and take testimony.

But pension officials rely on police department internal documents, in which a police officer's superior countersigns an accident report, but in practice rarely investigates the circumstances of an accident. Often the accidents are unwitnessed.

"Too often nobody's there, the guy says this is what happened, I fell," said Suffolk Police Commissioner Peter Cosgrove. "He may have a herniated disc. How he got it is maybe another question."

"It's amazing how many falls we'll get with no witnesses," Nassau's Kiesel added. "We can't disprove it, so we have to take it at face value. It's a home run unless I can prove fraud."

CLEMENT MARESCO:

THE WET FLOOR IN THE RESTROOM

Clement Maresco, a former Nassau police officer, was first injured in 1982 when he was lifting a heavy trundle. Doctors diagnosed a disc herniation. Such an injury, even though suffered in the line of duty, is not eligible for the highest level of state disability retirement because it is not caused by "an accident."

Maresco, now 50, was placed on light duty, performing clerical work in the Fourth Precinct in Hewlett. On Feb. 4, 1987, Maresco said he slipped on a wet floor and fell in the station house men's room, aggravating the injury.

Because a slip and fall is an accident, this type of injury is eligible for the most lucrative disability pension, under current interpretations.

But the police department argued that Maresco's injury wasn't job-related, because he was in the men's room and not technically working at the time. And police surgeons concluded that although Maresco had a disc herniation, he was fit for light duty.

Maresco argued, however, that his trip to the restroom was job-related. He said he was there not to attend to personal needs, but to wash his hands after soiling them on a computer teletype machine.

And he said he was in chronic pain.

A three-year legal battle ensued, turning on Maresco's reason for going to the restroom. Maresco, represented by PBA lawyers, argued it was job-related; the police department argued that it was not.

It ended in June, 1990, when the Appellate Division ruled that Maresco was entitled to line-of-duty-injury status. The ruling helped clarify for the state retirement system whether Maresco was eligible for a disability pension.

Four months after the court ruling, Maresco was awarded his disability pension. He gets $48,067 a year, tax-free. Maresco could not be reached for comment.

ROBERT RICH:

APPLESAUCE SPILL ON THE ROADWAY

Nassau Police Officer Robert Rich was granted a disability retirement in 1991, 15 years after he filed his injury claim for slipping on applesauce. But his medical file raises questions about whether the accident ever occurred. In an early interview with his doctor, Rich said he strained his back while moving boxes, according to documents obtained by Newsday. And later, after Rich got his pension, the department learned he'd been running a lawn-cutting business while on sick leave, Kiesel said.

Rich was 30 in April, 1976, when he was sent to a fatal tractor-trailer accident on the Long Island Expressway in Plainview. The trailer's cargo: applesauce. Crates of it had fallen out, some splattering on the roadside and leaving a slippery mess. Rich says he was descending an embankment to the tractor-trailer when he slipped and fell on some of the applesauce, injuring his back.

The doctor who initially examined Rich in 1976, however, gave a different account of the incident: This "Nassau County policeman who was at work two days ago unloading a tractor trailer, apparently overturned, of its cargo for several consecutive hours and a few hours after completing this work, he noted a severe lower back, neck and leg pains and stiffness... He recalls no single injury, but states that the work was unusually difficult and cumbersome," wrote the doctor, Huntington orthopedist Andrew W. Lawrence.

The difference between Rich's account of the injury and Lawrence's account is significant. Under pension system rules, Rich's injury had to result from an "accident" to qualify for accidental disability retirement, not from physical exertion in the performance of his duty.

Lawrence, in his initial report, predicted that Rich would be back to work in a few days. But Rich remained on sick leave for much of the year, complaining of constant neck, arm and shoulder pain, and difficulty turning his head.

Rich sought medical help from a series of doctors. In 1981, five years after his injury, Rich went to Boston. There, an orthopedist said a diagnostic test revealed a previous fracture in his neck.

"The neck went undetected by doctors down here," Rich said. "I'd gone to thirteen doctors and it went completely undetected.

"He [the doctor] asked me, 'Has anyone told you you had a broken vertebra in your neck?' He showed me films. It was clear as a bell... You go to X number of doctors and they tell you, it's in your head."

But records show the break was not as clear-cut.

One Boston radiologist said the X-ray showed that the "previously questioned fracture . . . [was] not visualized."

Another radiologist, viewing the same X-ray, said it showed a "previous fracture."

And Rich's own local orthopedist, Dr. Stephen Zolan, subsequently said he had a healed fracture and an unstable spine and that further injury to it could have serious consequences.

But other doctors disagreed. An orthopedist hired by the county, Dr. Carl Weiss of Garden City, concluded that Rich's disability, if any, was based entirely on his subjective complaints, which Weiss called "vague." Weiss said Rich "would appear to be a hyper-reactor to his neck problem at best. He has been vastly overtreated. I believe he has no organic problem of any kind."

Rich also filed a claim for a second injury. While assigned to a security detail in 1983, he was on the roof of police headquarters. He said he became dizzy and fell, injuring his knee and toe. The fall, Rich said, was caused by pain-relieving drugs he was taking for neck pain.

An arthroscopic examination of Rich's knee, however, found the inside of the joint to be normal, a police surgeon noted.

Rich, who had missed 65 days of work in 1977, 99 days in 1978, 40 days in 1980, 124 days in 1981, 141 in 1982 and 45 in 1983, was finally designated a sick-leave abuser by the police department. He was placed under surveillance.

Kiesel, of the medical evaluation unit, observed Rich driving his car, playing with his dog and walking with no indication of pain other than an occasionally recurring limp, according to testimony Kiesel gave in a lawsuit that Rich filed against the county, which was attempting to force him to work.

Rich lost the lawsuit in 1985, and was forced to accept a light-duty assignment. By the late 1980s, Rich's job attendance had improved to the point that in 1990, he worked $16,454 worth of overtime.

Rich was initially turned down for disability retirement, but pursued his disability case relentlessly. Finally, the state retirement system gave him his pension, based partly on the testimony of a psychiatrist, according to sources familiar with the case. The pension system concluded that there was significant testimony that Rich believed he was disabled and felt pain, the sources said. Therefore, he was disabled as a result of the accident, the retirement system concluded.

The overtime boosted his disability payments, and he now receives $60,471 a year, tax-free.

Kiesel says he learned later - too late to affect the case, because police disability pensions aren't revocable - that Rich, while complaining of his injuries, was operating a sideline business: mowing lawns. The Internal Revenue Service in 1993 filed a tax lien against Rich for $6,030 for 1992. Kiesel said the lien was for non-payment of taxes on earnings from the lawn-cutting business.

Rich, now 48, said in an interview that he never cut other people's lawns. He acknowledged that ads for lawn-cutting, giving his phone number in Bayville, had appeared in a local shopper, but he said someone else must have placed the ads without telling him.

PHILIP MCGUIRE:

THE WORN DOORMAT

Philip McGuire's injury occurred shortly after he was demoted from assistant chief to deputy inspector. The reasons for the demotion are unclear. Former Suffolk Police Commissioner Daniel Guido would say only that "a situation arose where it was in the best interest of the people of Suffolk County for me to move him down and move somebody else up who could do the job better than he."

McGuire said he hurt himself when he fell on a worn doormat in the Sixth Precinct in 1988. The accident report states, "Injured employee caught right shoe in raised wires that were in a worn doormat near rear entrance to the building. Employee lost his balance and tripped into wall."

McGuire said the fall aggravated a 1973 injury when he was assaulted in North Amityville while trying to arrest a murder suspect.

"That day I got hurt. That changed my life forever," said McGuire, now 60 and living in Florida. As a result of the assault, he said, "I have muscle spasms on the right side of my back. It goes in and out. Then my right arm is numb and I have what I can best describe as lightheadedness."

But records examined by Newsday show that between the 1973 injury and the 1988 trip and fall, McGuire lost no time from work because of the injury. McGuire now says that he took off work because of his pain, but never put in for sick leave. Instead, he says, he took personal leave and vacation when he wasn't feeling well.

McGuire's physician, Dr. Jacob Lehman of Patchogue, classified him as partially disabled. Dr. Raphael Davis, an orthopedist with the State University at Stony Brook, described McGuire's injuries as "quite mild."

An orthopedist who examined McGuire for the county, Dr. Harvey Fishman, said he doubted the severity of McGuire's original injury because he lost no working time from it between 1973 and 1988.

"He is able to squat and bend fairly comfortably without any evidence of restrictive motion . . . Orthopedically, I feel this claimant has a very mild partial disability with very little objective findings to his subjective complaints... I do not see the need for any further treatment."

Assistant Deputy State Comptroller John McManaman of the retirement system said that the orthopedist who examined McGuire for the state felt he was disabled. "It's conceivable that even a fairly mild disability could get approved," McManaman said. McGuire, who retired in 1989, receives $58,670 a year, tax-free.

JOHN MARJORIBANKS:

TROUBLE WITH SNOW

The calm of the residential street in Baldwin was broken the afternoon of Jan. 22, 1986, when a Nassau police tow truck veered onto a lawn and hit a tree.

Stunned residents called police to report that a bleeding and incoherent officer needed assistance.

Nassau Det. John Marjoribanks, the vehicle's driver, had suffered a gash on his head. After police arrived on the scene and while they were waiting for an ambulance, Marjoribanks told Officer Lawrence Nullet that he had been pursuing an organized crime figure, according to an internal affairs unit report obtained by Newsday.

Sgt. Thomas Zanetti said that when he arrived on the scene, Marjoribanks exhibited a number of signs of being drunk, including a "heavy odor of alcoholic beverage on his breath," according to the internal affairs report.

Marjoribanks refused to take a breath test to determine whether he was under the influence of alcohol, the report said.

Police charged him with driving while intoxicated, and he was admitted to Nassau County Medical Center in East Meadow.

During a three-day hospital stay, Marjoribanks was treated for facial cuts and a concussion, and examined for a back injury. After his discharge from the hospital, Marjoribanks went to a police doctor, who noted, "He can only forward flex to 40 degrees before pain is felt in the L-1 area," referring to a lumbar vertebra. Coincidentally, it was the same vertebra that Marjoribanks had fractured years before, in 1972, when he was in a serious on-duty motor vehicle accident.

After the tow-truck accident, Marjoribanks was temporarily suspended and later pleaded guilty to the reduced charge of speeding.

But the question of who would pay for Marjoribanks' medical treatment became an issue within the county. The police department filed a workers' compensation claim for Marjoribanks, calling the tow-truck accident an on-duty injury. But the police department did not disclose the charges against Marjoribanks.

An alert official in the county attorney's office learned of the drunk-driving charge, and refused to pay the claim. Marjoribanks withdrew it.

Six months after the tow-truck accident, Marjoribanks visited the police surgeon, complaining of back pain that had flared up. But Marjoribanks related it not to the 1986 tow-truck accident, but to his 1972 car accident. Marjoribanks told a police doctor in 1986 that he frequently had pain connected to the 1972 accident, but never complained about it to the police doctors.

Two years later, Marjoribanks filed another accident claim - this one in connection with an unwitnessed slip-and-fall at the Seventh Precinct in Seaford.

Marjoribanks said he fell while cleaning snow off a police car. "I had cleaned the snow from the windshield and driver side glass. I slipped on the snow in the parking lot, and fell to the ground, injuring my back," his accident report said.

An X-ray at the Nassau County Medical Center found an "old compression fracture of L-1" - the same vertebra he'd fractured in 1972 and the same location where doctors had found his back pain centered after the 1986 tow-truck crash.

Then, Marjoribanks applied for, and was awarded, a disability pension - not from the 1988 fall or the 1986 tow-truck accident, but from the car crash that had occurred 17 years earlier.

McManaman said the state pension system, given evidence about all of Marjoribanks' accidents, ruled that he had been disabled by the 1972 car crash. "They ruled that in fact it was the '72 accident that was causal," said McManaman.

In March, 1989, the state granted Marjoribanks, now 54, a $46,327-a-year, tax-free disability pension. Contacted recently at his East Islip home, Marjoribanks denied any connection between his 1986 tow-truck accident and his disability.

After the 1972 accident, he said, "I was in a body cast for three and a half months. I had numerous problems." After the 1988 accident in which he fell on the snow, Marjoribanks said, a doctor told him, "Keep doing this and you're going to be in a chair forever."

ANGELO AMENDOLARE:

INCIDENT ON ICE

Angelo Amendolare was awarded a disability pension by the state in 1990 based on a 14-year-old back injury in a case fraught with questions.

State officials approved the $44,325 annual pension even though a police surgeon, after viewing a videotape of Amendolare lifting heavy luggage, wrote the state pension system that Amendolare demonstrated a "normal functioning lumbar spine."

Like many police injuries, Amendolare's was the result of a mundane accident, the kind that could happen to any worker.

On a shift change in 1976, he accidentally locked his keys in his personal car. After getting a coat hanger from a nearby police car, he walked toward his vehicle to unlock it. He lost his footing and fell on the ice.

Amendolare was diagnosed with a back sprain.

In the years that followed, Amendolare periodically complained of back pain and took sick leave for it. A police doctor noted in his file: "The consensus is that his injury is not severe [enough] to request disability."

Then, in 1990, Amendolare reported an episode of severe pain and began missing more days of work. Records show that a magnetic resonance imaging test revealed multiple small herniated discs, a condition whose symptoms, orthopedists say, can range from significant pain to none. He refused to work, even at a desk job, and applied for a disability retirement. He could bend over only 45 or 50 degrees, he told police doctors.

Then a tip came in to the police department. Amendolare was planning to take a Caribbean cruise. Police from Kiesel's unit went to Kennedy Airport to watch him as he departed.

On March 25, 1990, Amendolare was videotaped lifting four pieces of luggage out of the trunk of a car.

"He bends over freely and normally in regard to his entire spine in removing the four pieces of luggage from the car trunk... Inside the terminal at the check-in counter he is seen to bend his lumbar spine freely to 80 degrees. He is also seen again flexing freely and normally his lumbar spine to 90 degrees," according to an account of the videotape written by Acting Police Surgeon Joseph Serletti.

Investigators barely attempted to conceal themselves from Amendolare at the airport. The videocamera served as a camouflage, blending the police perfectly into the bustle of travelers eager to check their luggage and board their aircraft.

On Amendolare's return trip, police also watched and filmed him at JFK on April 1, and the videotape was even more revealing.

"Police Officer Amendolare bends 90 degrees from the lumbar spine over the luggage rack to check for his own incoming luggage. He first freely picks up, bent at 90 degrees, one large [piece of] luggage followed by his retrieving a second large luggage bag," Serletti wrote in a letter to the state retirement system. "...[H]e carries one in each hand walking out of the air terminal to a parked car... entire spine function appears normal."

Two days later, however, Amendolare came to the police surgeon's office and said he could bend only 45 degrees, records show.

The videotape and Serletti's narrative were sent to the state retirement system.

"The state, in its infinite wisdom, gave him three-quarters [disability retirement] seven weeks after the film was sent up to Albany," said Kiesel, who is critical of the state pension system.

Interviewed recently, Amendolare, now 44, said he was totally disabled and receiving Social Security disability payments of about $12,000 a year in addition to his tax-free disability pension of $44,325.

"This is not going to heal. This is not going to get better. You caught me in a prone position. I'm laying down," he said, adding, "There's not a hell of a lot I can really do."

Several weeks later, however, Newsday watched and photographed Amendolare as he worked on fencing at his neighbor's Freeport home.

© 1994, Newsday

By Brian Donovan and Stephanie Saul

Everyone has heard of Roe vs. Wade, but have you ever heard of Rowe vs. Regan?

The first, of course, is the Supreme Court's landmark 1973 decision giving constitutional protection to abortion.

The latter is of lesser significance, unless you're a police officer in New York state seeking a disability pension. In Rowe vs. Regan, the Appellate Division of the New York State Supreme Court ruled that a slip is an accident, even if there is no fall.

The Rowe case, filed by former Nassau police Officer John Rowe against then-State Comptroller Edward Regan as head of the pension system, was one of several court decisions in the mid-1980s that led to a broadening of the legal definition of an accident, opening the gate for more and more disability retirements.

In 1975, Rowe slipped on a wet manhole cover getting out of his patrol car and wrenched his back against the side of the car to avoid a fall. Despite back surgery and 189 days of recovery at home, Rowe remained in pain, according to records in his case.

The retirement system denied Rowe's application for disability retirement, concluding that his slip did not constitute an accident.

But the Nassau PBA's lawyer at the time, Michael Axelrod, pressed the case in the courts. The State Supreme Court's appellate division ruled in 1985 that "slipping on wet pavement constituted a precipitating accidental event, unexpected in nature." The decision, in effect, gave Rowe his disability retirement.

"The Rowe decision found that an individual had an accident if he slipped, even if he didn't fall," said Cynthia Munk, a spokeswoman for the state retirement system.

Rowe, 55, who lives in Southampton, declined to comment on his case. He collects $26,106 a year, tax-free.

State legislation setting up the disability retirement system does not specifically define the word accident. It's "an abstract definition like pornography," said Carle Place lawyer Richard Lerner, who represents many police officers in disability cases. "No one ever really knows what is an accident and what isn't. We have a different view than the comptroller does."

The Rowe decision followed several similar court rulings involving New York City police, who are covered by a separate, yet similar, pension system.

In 1984, in cases involving New York City police Det. Gerard McCambridge and New York City Patrolman Richard Knight, the Court of Appeals ruled that slip-and-falls constituted "accidents" within the city police retirement system.

As McCambridge was getting up from his desk one day in November, 1979, he reached out to steady himself on the shoulder of another officer. The other officer moved away unexpectedly, causing McCambridge to lose his balance, fall to the floor and injure his knee.

Knight was entering his patrol car in April, 1979, when he slipped on wet pavement, fell backward and injured his elbow.

Both were denied disability benefits before taking their cases to court, where Knight was represented by former Nassau and Suffolk PBA lawyer Richard Hartman.

© 1994, Newsday

By Brian Donovan and Stephanie Saul

Ronald Hertz had cause for celebration. A day earlier, the former Nassau narcotics officer had been awarded a lifetime disability pension of $32,304 a year.

But despite the tax-free jackpot, Hertz was seething. Under criminal charges for dealing cocaine, he wanted vengeance against a man he suspected had snitched on him.

Early on the morning of Aug. 6, 1986, before his target was out of bed, Hertz kicked in the door of the man's Manhasset house and threatened him with a knife.

It was a surprising physical feat for Hertz, who had said he was disabled with a back injury. One physician had said Hertz "couldn't bend or lift, walk more than a block or sit for more than 20 minutes."

But Hertz' display of strength didn't jeopardize his state disability pension. Once they are awarded, they are never re-evaluated. In fact, he has continued to collect it even while serving his 8 1/3-year-to-life sentence in the state prison system - including a stretch in Attica - in connection with the drug and break-in charges.

Currently in a work-release program run by the Queensboro Correctional Facility, Hertz, 47, is eligible for parole in October. He didn't respond to a request for an interview.

Unlikely as it may seem, Hertz' story isn't unique in the annals of police disability pensions. The pensions sometimes serve as the police version of corporate golden parachutes for officers who face criminal or departmental charges.

Among the most serious cases reviewed by Newsday are police officers who became drug dealers or burglars, then were awarded such pensions. In other cases, officers facing departmental charges for violations ranging from child molesting to sabotaging investigations are getting the tax-free payments.

Police officials acknowledge that many officers apply for disability when they get in trouble, cushioning their downfalls with enhanced retirement benefits. Frequently, the accidents in which these officers claim injuries come on the heels of internal investigations. Often, they are unwitnessed. In other cases, those who get in trouble resurrect old injuries to gain disability status. And when the disability pension is granted, it puts an end to the departmental prosecution.

Perhaps the most unusual disability case on the books involves two Suffolk County undercover narcotics officers. The officers, James Kuhn and Raymond Gutowski, were awarded pensions after they claimed disability for cocaine addiction that they said was job-related, and for the stress of being investigated. Both left the department in disgrace, but were acquitted on criminal charges before securing their disability pensions.

Among the other cases Newsday examined: Nassau Police Officer Eugene Sullivan, who was awarded his $40,120 annual pension at age 41 in 1988, about a year after being found guilty on departmental charges of sexually molesting a young relative over a number of years.

Suffolk Det. Lt. Richard Franzese, former commander of the narcotics squad, who was charged in a departmental case with tipping off a suspect in a drug investigation but retired in 1992 on a $56,823-a-year disability pension at age 46 before his departmental trial could be held.

Suffolk Police Officer Theodore Franzese, his brother, who pleaded guilty to departmental charges of tipping off the target of another investigation, then retired in 1992 at age 47 on a $48,888-a-year disability pension. Nassau Police Officer John Baitz, who was granted his $26,730-a-year disability pension at age 36 while under indictment for burglarizing businesses on his beat in 1984.

Nassau Police Officer Edward Jensen, who faced both criminal charges and internal investigation, said he suffered a disabling back injury late one night in 1985 when his police scooter hit a curb. He got a $34,054 annual tax-free pension, then placed ads in the PBA newsletter for his new business: installing automatic transmissions. Suffolk Capt. Harold McCormick was demoted from inspector and relieved of command of the Second Precinct after a corruption investigation. Within months, he reported that he had stepped backward and tripped over a fallen parking lot stanchion, injuring his leg and back. Pension: $46,271 a year, tax-free.

Nassau Police Officer Denis Dougherty, who retired at age 39 on a $39,512-a-year tax-free disability pension two months before felony cocaine charges were filed against him in 1989.

The retirement system, run by the state comptroller's office, gives no weight to whether a disability applicant is under criminal or disciplinary charges when their applications are considered. By law, an officer's criminal record or alleged malfeasance isn't relevant in awarding the pensions. Efforts by the comptroller's office to change that have failed in the State Legislature.

"It just seems to me that you shouldn't get a police pension check in prison," said Suffolk Police Commissioner Peter Cosgrove. "Something doesn't sit right with that."

The comptroller's office doesn't conduct its own investigations of accidents or look into the criminal or disciplinary records of disability applicants. Instead, state officials rely on police department reports, filed by the officers, that they were injured, and the findings of doctors.

Because most disability pensions are for bad-back or other orthopedic complaints in which medical evidence can be cloudy, the applicant's complaints of pain can be the deciding factor.

"It might be helpful to know what's happening in a police officer's life at the time he claims he was injured," said Suffolk Deputy Police Commissioner Robert Kearon. "Is internal affairs looking at him closely? Is his job in jeopardy? It's certainly not smoking-gun proof that perhaps there's a degree of fraud involved in the claims, but I would certainly be interested in knowing what's happening.

"It doesn't take a great deal of training as a detective to be somewhat suspicious if someone's got some problems with internal affairs and then files a disability claim in order to leave the job."

"I don't know why they can't be more aggressive in their investigations," Nassau Police Commissioner Donald Kane said of the comptroller's office. "If you're going to make a decision that has a financial impact on the state, you should make it based on some reasonable premise that you have checked things out."

For example, Hertz - who wound up in Attica - said his injury occurred when he jumped out of the way of a skidding car while directing traffic at an accident scene. A supervisor noted that there were no witnesses, civilian or police, to the incident.

Many officials believe the system should be changed. "It's a foreign concept to me that someone should be convicted of a crime and get a pension check sent to jail," Kane said. "Personally, I find it outrageous."

Kane's predecessor, the late Nassau Police Commissioner Samuel Rozzi, was so angered by Hertz' pension that he dispatched a delegation to Albany to question how Hertz could have gotten it, recalls Nassau Deputy Insp. John Sharp.

"Commissioner Rozzi was particularly incensed by that and sent myself and three other people to Albany demanding to know what's going on here," Sharp recalled. Their message to the state was, "This is crazy. How can you possibly give [disability] retirement to somebody who's serving time on a drug conviction?" Sharp said. "It's frustrating as hell," Kane said.

Other retirement systems can deny benefits to public servants with blemished records. New York's workers' compensation system cancels benefits to convicted felons. Several large states and the federal government can take away pensions from employees who commit certain crimes. New York City has a mechanism to keep disability pensions from going to police suspected of malfeasance, by terminating them before they receive their pensions.

The state comptroller's office has backed a pension forfeiture statute for New York since 1988. "The Legislature has shown no interest in it," said a pension official who asked not to be named, speculating that opposition to the bill is due, at least partly, to the fact that it would affect lawmakers as well as police officers.

Each year, the bill is dead on arrival, opposed by a rock-strong public employees lobby. Police unions also have opposed forfeiture, expressing concern that a dedicated officer could lose his pension from one split-second misjudgment in a dangerous situation.

The bill is so unpopular that its Assembly sponsor is the "Committee on Rules," generally an indication that no member of the Assembly is willing to affix his or her name to it.

State Sen. Caesar Trunzo (R-Brentwood) has for several years sponsored the bill in the Senate, where his Committee on Civil Service and Pensions must act on the legislation.

"There's strong opposition by labor unions on the legislation, and I don't think it's quite understood," Trunzo said, explaining why the bill is stuck in his committee. "Nobody is clamoring to pass this type of legislation. It's just been laying dormant."

Trunzo said he had brought the bill up for discussion in committee several years ago, but it was clear that it had little support.

In recommending such a statute, Nassau District Attorney Denis Dillon remarked several years ago: "Dishonest employees should not be able to feed from the public coffers long after accomplishing their misdeeds."

The Feerick Commission on Government Ethics Reform also recommended in 1988 that the pensions of employees convicted of betraying the public trust be subject to forfeiture. Since then, the comptroller's office, with support from Gov. Mario Cuomo and the attorney general's office, has recommended a pension forfeiture statute in the State Legislature.

"Terminating pension benefits for those who are convicted of a work-related felony will send a strong message that abuse of public trust will not be tolerated," the comptroller's office said in a memo to the Legislature.

But Michael Axelrod of Mineola, a lawyer who represents several police groups, argues the other side. "Everybody perceives themselves as being unjustly accused and doesn't want to see a law enacted that's going to penalize them and jeopardize their pensions on the one bad day, the one bad decision they make," Axelrod said. "So how do you distinguish between a Ronnie Hertz who's in business as a drug dealer as opposed to an officer who just has a bad day?"

"You have to wonder about people who are involved in dealing drugs, and they're supposedly cops, getting the same benefit," said Nassau PBA President Gary DelaRaba. "But nobody wants to draw the line."

There is also concern that a police officer's family could be penalized if his or her pension is taken away. To address that, the legislation proposed by the comptroller's office would allow judges to consider the family's financial situation when deciding whether to revoke pension benefits.

Noting that Hertz collects a pension while in jail, disability lawyer Richard Lerner said, "His wife probably survived only because of the pension that he had. Otherwise, financially it would have been a disaster for his family."

Rosemary Wenzel, the wife of a former Suffolk officer, Harry Wenzel, was awarded his $7,220 annual disability pension benefits by a court in 1984, the year after Wenzel was sentenced to a 25-year prison term for stabbing her in their Sayville home. Harry Wenzel had been on leave from the Suffolk Police Department since 1981 for a psychiatric disorder.

"Mr. Wenzel had a family," said John McManaman, assistant deputy comptroller. "If he hadn't gotten the retirement benefit, she wouldn't have gotten anything either."

Here are the stories of some Long Island officers who received disability pensions after facing criminal charges or departmental investigation:

EUGENE SULLIVAN:

A CASE OF CHILD ABUSE

Nassau Police Officer Eugene Sullivan was injured on the job six months after departmental charges were brought against him alleging that he had sexually abused a young relative.

Police department charges were filed against Sullivan in January, 1986. The department accused him of molesting the child over a period of six years, according to court documents in a related civil lawsuit. Sullivan denied the allegations. The police department also accused Sullivan of lying for saying the minor had fabricated the sex allegations.

Six months later, with department charges against him still pending, Sullivan reported that he injured his shoulder while struggling with a female prisoner. An arthrogram of the shoulder found nothing wrong. An MRI, however, revealed a neck problem.

Sullivan was found guilty of the departmental charges in October, 1987, and fined 35 days' pay, according to police department records. In December, 1988, he was granted a disability pension by the state, and retirement system officials said there was no dispute among doctors that Sullivan had a disability, albeit mild.

Sullivan's orthopedist, Dr. Stephen Zolan, later wrote that the officer was not able to "bend, climb, stoop, squat or crawl, lift or carry, push or pull weight more than a couple of pounds. He is unable to sit for more than 10-15 minutes, stand the same or walk more than 1/2 block without having to stop, even with a cane."

Sullivan, now 46, collects a $40,120 tax-free pension. Contacted recently by Newsday, he did not want to discuss his case. "There's no love lost between me and the people in the police department," he said. "I was improperly treated by them."

RICHARD FRANZESE:

INVESTIGATION, THEN A CRASH

As he drove down Middle Road in Bayport on May 29, 1990, Suffolk Det. Lt. Richard Franzese's career seemed on the verge of an embarrassing and costly ending.

Not long ago, he'd been one of the department's rising stars. He'd been chosen to take over and rebuild the narcotics squad after the unit was racked by allegations of illegal wiretapping and drug use by officers during the 1980s.

But now, Franzese was just two days away from a departmental trial on charges that he had tipped off a suspect about a drug investigation. He'd been transferred out of his prestigious command slot in narcotics and placed in what some colleagues considered a make-work job in headquarters.

To make matters worse, Franzese was two months short of 20 years on the job. That meant his regular pension would be sharply reduced if the department convicted and fired him before he put in his 20 years.

Suddenly, Franzese's unmarked police car slammed into a brown Mercury Cougar that was crossing Middle Road just ahead. His car hit the Cougar's rear quarter panel, spinning it around.

According to the police report, neither driver was injured and no tickets were issued.

After the accident, Franzese went on sick leave, his departmental trial was postponed, he got his 20 years and he filed an application for a disability pension. He said in a lawsuit and in pension records that the accident left him with bad discs in his neck and a disorder that caused him to fall asleep involuntarily for a few seconds several times a day.

According to police department records, Franzese had been charged in 1989 with three counts of conduct unbecoming an officer, alleging that he "wrongfully revealed confidential information to a potential target of a drug investigation . . . failed to divulge crucial information to an undercover narcotics officer . . . [and] wrongfully caused the termination of a narcotics investigation."

Police sources said Franzese was accused of warning a racquetball acquaintance that she had become a suspect in a marijuana investigation begun by one of the precincts, and that after the department began investigating the leak, Franzese tried to fabricate an alibi that he'd talked to the woman because she was an informant. They said the district attorney's office opted to let the department handle the case rather than bringing a criminal prosecution.

Franzese would not discuss the case but said: "What they alleged to have taken place was totally untrue."

Medical records examined by Newsday show that doctors differed on whether Franzese actually suffered from a sleeping disorder. His own doctor diagnosed "post-traumatic hypersomnia which is a direct result of his accident." Franzese was examined over two days and nights at the sleep disorder center at the State University at Stony Brook, but the study ended "without evidence of an intrinsic sleep disorder." Given the history furnished by Franzese, the report said, "a post-traumatic hypersomnia seems the most likely diagnosis."

But the neurologist to whom the state pension system first sent Franzese didn't agree. According to one document, Dr. Robert Roth "rejected the hypersomnia diagnosis on the basis of the fact that Richard had not lost consciousness during the accident and did not demonstrate . . . [memory loss] surrounding the event. Dr. Roth suspected that Richard was malingering and would be able to continue working as a police officer."

A pension system spokesman said the agency subsequently sent Franzese to two other doctors who did find him disabled. The spokesman would not say why the additional doctors were consulted. According to one doctor's report, Franzese completed a document as part of his evaluation by the state reporting mental problems such as "being highly distractable, trouble in concentrating, tending to lose his train of thought easily, experiencing his mind going blank at times, forgetting where he had left things, people's names and recent events."

His tax-free pension of $56,823 a year was approved in 1992. When he retired at age 46, his departmental disciplinary case had to be abandoned. A lawyer for Franzese, Scott Lutzer, said Franzese is also collecting Social Security disability payments, which are only for those unable to do "substantial" work, according to a Social Security handbook. State licensing records show that in March, 1993, Franzese and another retired Suffolk police officer launched a new business, Long Island Investigations Service in Bay Shore. He's now a state-licensed private investigator.

Nevertheless, when Franzese filed a required statement with Suffolk County in October, 1993, in connection with his workers' compensation benefits, he said that he wasn't working at all.

THEODORE FRANZESE:

HE TAINTED PROBE

For Theodore Franzese, a 21-year-career as a Suffolk police officer ended much as it had for his brother Richard - a disciplinary case, followed by an auto accident, followed by a disability pension.

And, as with the departmental charges that torpedoed his brother's career, Theodore Franzese's case also involved accusations of tipping off a suspect in a police investigation, according to department documents and police sources.

A departmental order issued March 25, 1991, states that Franzese pleaded guilty to eight violations of department rules, including charges that he: "discussed information of a confidential nature regarding departmental business on two separate occasions . . . failed to provide members of the department with information pertaining to possible criminal activity . . . instructed an informant to provide false information to department personnel."

Police sources said the case involved an investigation of a store owner suspected of receiving stolen property. Detectives spotted Franzese going into the store and told him to stay away because of the investigation, the sources said. Instead, they said, Franzese came back and warned the owner, and the investigation fizzled.

A month after Franzese pleaded guilty and was fined 30 days' accrued leave, an accident ended his police career. At 4:08 a.m. on April 27, 1991, his police car collided with another car in Huntington. The woman driving the other car was charged with driving while intoxicated. Franzese, who had been wearing his seatbelt, complained of pain in his lower back and neck. He went on sick leave.

Medical records of his case show disagreement among doctors over the seriousness of his injuries. His case is complicated by reports that Franzese did not follow some doctors' suggestions for improving his condition.

The records illustrate what police officials say has been a repeated source of frustration: what to do about a patient seeking a disability pension who does not follow doctors' recommendations on how to get better. The system cannot force pension-seekers to act on doctors' recommendations for surgery, weight loss or therapy. Police officials say they believe some applicants delay such measures until after they get their pensions, although records on Theodore Franzese do not suggest this was true in his case. Once the pensions are granted, they are never re-evaluated.

Franzese's orthopedist, Dr. Jacob Lehman, diagnosed him as totally disabled for police work, and an MRI report said he had small herniations on three discs in his back. Franzese told doctors he was in constant pain and couldn't drive, and records say he also showed symptoms of depression. A doctor who examined Franzese for the county also found him totally disabled.

Other doctors examined him, looked at the same MRI and drew different conclusions. One said the MRI appeared to show only bulges in the discs, a less serious condition than herniations. Another thought the irregularities were herniations but found no indication they were pressing on nerves, which is how herniations cause pain. The county sent Franzese to a chiropractor who reported his problems as mild and resolving and said he should be able to work in a few weeks.

The Comprehensive Pain and Rehabilitation Center at the State University at Stony Brook tried to test Franzese's muscle strength but reported that the tests were inconclusive because of his "submaximal and inconsistent effort." One doctor wrote: "Previous recommendations for physical therapy have not been accepted by the patient, and this continues to be a significant impeding factor in the patient's overall ability to recover."

On May 21, 1992, the state granted Franzese a tax-free $48,888-a-year disability pension and he retired at age 47. He did not respond to a request for an interview.

JOHN BAITZ:

GUILTY OF THEFT WHILE ON HIS BEAT

In 1984, while under internal and grand jury investigation for allegedly stealing from factories on his beat while on duty, Nassau Police Officer John Baitz applied for disability retirement.

Within months of his application, a Nassau County grand jury indicted him on larceny and burglary charges. From one Westbury business, the indictment said, he took walkie-talkies, a microwave oven and a digital clock. From another, it said, he took a router. And from another, a heater. He was suspended from his job.

Ten years earlier, Baitz had been chasing a suspect in Jericho when he fell and injured both wrists and elbows, fracturing one elbow. Baitz had surgery in 1974 to repair damage to the elbow, but records show he had complained about the elbow hurting him again in 1980. Then, in 1981, Baitz said that he reinjured his elbow when he tripped on carpet at the Second Precinct in Woodbury. After his second elbow surgery, in 1982, Baitz continued to complain of elbow pain. His elbow problems formed the basis for his disability claim.

As his criminal case was winding its way through the courts, Baitz' disability request was getting favorable consideration in Albany. During his suspension and while charges were pending, the state retirement system granted him a disability pension of $26,730 a year for life, tax-free. Internal departmental charges stemming from the alleged thefts had to be discontinued once the retirement was approved. In the criminal case, Baitz pleaded guilty to petty larceny and was placed on probation for three years.

Baitz, 46, would not talk to a reporter when contacted at his Port Jefferson Station home.

EDWARD JENSEN:

INCIDENT OUT OF TOWN

Edward Jensen's accident followed a decline in his standing in the Nassau Police Department.

Jensen's problems with the department followed his arrest on burglary and assault charges in upstate Ulster County. Details of the incident are sketchy, but Nassau police said Jensen, at the time an undercover narcotics officer, and his partner had gone to Ulster County to meet with an informant.

There, they were accused of breaking into a man's home. A chase ensued and Jensen was ultimately arrested by local authorities. He was charged with burglary and assault, but later pleaded guilty to harassment, a violation.

Internal affairs began looking into Jensen's activities, and, after a series of tour changes, he ended up performing patrol duties in the area of the Sunrise Mall in Massapequa.

Late one Saturday night in April, 1985, as Jensen drove around the mall complex in a three-wheel scooter, he said he hit a broken curb. The impact jolted him upward, he said, and he injured his back. Doctors diagnosed a herniated disc, which was documented by magnetic resonance imaging.

After his accident Jensen told the department he was totally incapable of working. "He couldn't drive to work. He couldn't get out of bed. He couldn't walk," according to a police official who testified in a related civil lawsuit.

But the police department was suspicious. They put Jensen, a part-time used car dealer, under surveillance. Police investigators, armed with a videocamera and a zoom lens, spied him raking leaves, bending, and driving a tow truck - work he said he was incapable of performing. Dr. John M. Nicoletti of Wantagh examined Jensen for the police department. After watching the videotape, Nicoletti commented: "It appears that his activity is much more than both he and his wife were willing to admit to." The state retirement system initially denied Jensen's pension claim in 1986, but a state hearing officer subsequently overturned the decision. Today, Jensen, 48, collects $34,054 each year, tax-free.

Since his disability pension was granted, Jensen has advertised in the Nassau PBA newsletter for his new business - transmission repairs and installations. Det. Sgt. Robert Kiesel of the Nassau police medical unit, who has done surveillance on Jensen's Mt. Sinai home, said he does the work in a garage under his house.

"It goes under almost the whole house," Kiesel said. "There are fluorescent fixtures that hang from the ceiling. It looks like an underground parking lot in the city. That's where he does all the work on the cars."

While the department was investigating him, Kiesel said, Jensen covered the garage windows with paper. Approached at his home where he was washing a car, Jensen would not discuss his case with Newsday.

HAROLD MCCORMICK:

RELIEVED OF COMMAND

Harold McCormick was an inspector commanding the Suffolk Police Department's Second Precinct in Huntington until his career was ruined by allegations that he was shaking down local businesses. One published report had McCormick insisting that a Christmas-tree seller give him a free tree. At the time McCormick refused to comment and his attorney denied the charges.

A grand jury looked into the allegations, but did not indict McCormick. Police officials believed the allegations warranted official action, according to Deputy Commissioner Robert Kearon. In the fall of 1985, McCormick was relieved of command of the Second Precinct. In January, 1986, he was demoted to captain and, later, transferred to the auto-impound lot, in Westhampton.

Just months after his transfer, in December, 1986, McCormick reported a fall. A report of the accident says McCormick was outside the impound office measuring the outside dimensions of the building, which was to be repainted. While stepping back, McCormick fell over a parking lot stanchion, landing on his right side, breaking the fall with his right wrist, he said.

McCormick later complained of total loss of sensation in his right leg, inability to drive and numbness in his right hand. McCormick's physicians diagnosed a back problem, with Dr. Stephen Zolan concluding that McCormick had a disc herniation. But an MRI showed no herniation, only a bulging disc and degenerative changes in the spine, which can be caused both by trauma and by aging.

In July, 1987, McCormick was admitted to Huntington Hospital, where a nurse noted: "Continue to find patient sitting up with no... apparent distress despite his statements of continued ...pain and my instruction to remain flat in bed." McCormick, now 62, was awarded a disability pension in November, 1987, of $46,271 a year, tax-free.

John McManaman of the pension system said the orthopedist who examined McCormick for the state agreed that he was disabled. Repeated calls by Newsday to McCormick's Northport home were not returned.

DENIS DOUGHERTY:

COCAINE-SALE CHARGES

Denis Dougherty retired from the Nassau Police Department on a disability pension two months before felony drug charges were brought against him in 1989.

Commissioner Kane recalls that the police department considered speeding up the criminal investigation against Dougherty before his pension came through so they could "lock him up while he was on the job, and fire him." But, Kane remembers, the criminal investigation took longer than the police department had hoped.

Dougherty had had at least two run-ins with the department's internal affairs unit during the latter part of his 16-year career.

The subject of several internal investigations, Dougherty was demoted and fined 60 days' pay in 1984 on departmental charges of involvement in bookmaking, according to records in a related civil suit. Then-County Attorney Edward O'Brien said in an affidavit that "while this conduct constituted a violation of the Penal Law, the district attorney declined to prosecute."

Another scrape came in June, 1988, when he was arrested for allegedly sexually abusing a female emergency medical technician after following her home from a bar. A grand jury returned no indictment. Dougherty said the woman was drunk at the time she made the allegations.

The final investigation of him while a police officer involved charges that he was selling cocaine while out on sick leave, beginning in the fall of 1988. And the department was hoping to conclude the probe before his disability retirement claim was decided by the state.

He had been diagnosed with back problems, the result of an attempt to control a mental patient in the back of a patrol car.

But the drug case took longer than the pension application. On April 16, 1989, Dougherty was notified that he had been awarded state disability retirement. In June of that year, he was arrested on 16 counts of sale and possession of cocaine.

He pleaded guilty to reduced charges and was sentenced to six months in jail. He receives $39,512 in disability payments annually, tax-free. Dougherty, 43, did not respond to Newsday's request for an interview, according to his brother Michael Dougherty, because he is trying to put that part of his life behind him.

© 1994, Newsday

By Brian Donovan and Stephanie Saul

In the history of police disability cases, former Suffolk narcotics officers James Kuhn and Raymond Gutowski apparently hold the distinction for the most unusual disability. Veteran state pension officials say they don't know of any similar cases.

Their disability? Cocaine addiction, plus the stress of being investigated. And although both men say they kicked their cocaine habits years ago - a claim supported by medical files examined by Newsday - their cases will never be re-evaluated. Disability pensions are granted only for permanent disabilities, so the system has no provisions for stopping payments to pensioners whose disabilities clear up.

During the early 1980s, Kuhn and Gutowski were the stars of the narcotics squad, working undercover and making dozens of busts. They say they started using cocaine to enhance their credibility among drug dealers, a violation of department policy, and got hooked. Then their addiction drove them to steal cocaine confiscated as evidence, they said.

Both were acquitted of drug charges in a criminal trial, and jurors said they believed the officers' defense: that their cocaine use started on the job and that their superiors ignored signs of their addiction and just kept pressing them to make more cases. Gutowski said in an interview that his cocaine use was so well known in the narcotics squad that other officers nicknamed him Buzz, a reference to his mental state.

Then Kuhn was convicted on drug charges in a departmental trial in 1987 and fired. To avoid the expense of a second trial, the department signed an agreement with Gutowski. He agreed to resign, and the department stipulated that his cocaine use "arose out of and was incurred during" his police work.

That legalese was all the lawyers needed - before long, both former narcotics officers had their disability pensions. Gutowski's is $23,284; Kuhn's, $17,580. Both also get monthly Social Security disability checks; the amount isn't public.

Suffolk police officials said they were surprised that Kuhn and Gutowski had been able to use the agreement to get disability pensions. But Gutowski's lawyer, Robert Gottlieb, said department officials knew all along that the agreement would be used in seeking the pensions. "I know that was discussed during the negotiations," he said.

Kuhn and Gutowski said in interviews that they don't feel as if they beat the system. Both said they are unemployed and still haunted by nightmares, depression and guilt. They talked of medications and therapy and wishing they were still policemen.

Gutowski, 44, who lives a reclusive life in rural Pennsylvania, said: "I pray to God that I'd be like I was when I was younger, but it just doesn't happen." Kuhn, also 44, said he wishes daily that he never left the Fifth Precinct in Patchogue, where he was happy. "You think you're getting a promotion, going to narcotics, and when the smoke clears you're just a skeleton of what you were."

Deputy State Comptroller John McManaman said the county's stipulation gave the state little choice but to approve the pensions. With the county acknowledging in an official document that their cocaine use was job-related, McManaman said, the state had no legal basis to deny the applications.

"The point is, the county has to be responsible for its actions in signing agreements," he said.

© 1994, Newsday

By Brian Donovan and Stephanie Saul

Suffolk police Sgt. Brian Bugge savored a moment of pure satisfaction when he watched the videotapes of John Luciano, would-be disabled cop, vigorously scrubbing down his 22-foot boat, the Lucky L. The tapes seemed like the kind of evidence an investigator often dreams of and seldom gets.

Luciano, a police officer whose career had gone into a nosedive when the department caught him in compromising relationships with drug dealers, was on sick leave and applying for a disability pension, claiming a bad back. He wore a brace, hobbled around with a cane and told county doctors he could hardly move.

The videotapes, however, seemed to tell a different story. On three summer afternoons in 1988, Bugge and other investigators watched Luciano from hiding as he worked on the Lucky L at a marina in Mastic. The first time Bugge shot still photos, and the next two sessions were captured on videotape. The tapes showed Luciano doing things he'd just told doctors he couldn't do, repeatedly bending, stretching, crouching, reaching, squatting, lifting, working in a bent-over position, balancing on one leg - all without any sign of pain or hesitation. The brace and cane weren't around.

Investigating another officer wasn't Bugge's favorite kind of work, but the assignment to head the Luciano investigation didn't really bother him. As Bugge saw it, the disability pension system was a safety net under every officer, and cases like Luciano's put holes in the net. And in his nine years on the job, he'd seldom seen evidence that looked so persuasive.

The department sent the videotapes to state pension officials in Albany and began drawing up departmental charges of pension fraud against Luciano. Since Luciano was only 40, a good deal of money was riding on the outcome.

If the state found him disabled and he lived the average male lifespan of 72 years, he'd collect more than $989,000 in pension checks, tax-free. But if the department could bring disciplinary charges against Luciano and fire him, they hoped the state would deny him a disability pension. Then, he'd get only about $179,000 from a regular pension by age 72, and that money would be subject to taxes. So the disability finding could net Luciano more than $800,000 extra over a normal lifetime.

The videotapes, Bugge figured, put Luciano's chances for a disability pension at about zero. But as he and the Suffolk Police Department would discover, they still had a lot to learn about the workings of the state pension system.

More than any other single case, the lengthy behind-the-scenes battle between the Suffolk Police Department and the New York state pension system over Luciano's disability pension illustrates the obstacles Long Island police officials have faced in trying to get state officials to reject what the departments considered fraudulent applications.

On Sunday, Newsday reported that since the early 1980s Nassau police officials have been sending state pension officials reports and videotapes about officers they were investigating for malingering. Police officials said their letters and questions went unanswered. The state took the position, they said, that disability decisions were between the state and the individual officer and that the police departments didn't have any standing to become involved.

In the Luciano case, the Suffolk Police Department managed to get its foot farther in the state's door than its counterpart in Nassau. Police officials pressured the pension system into holding hearings on Luciano's disability, with the videotapes as the key evidence.

A detailed examination of this case - based on hundreds of police, state and medical records and interviews with many of the participants - shows how an officer in trouble on the job, facing evidence that raises harsh questions about his disability claim, can still prevail because pension officials and doctors give him the benefit of the doubt. As police officials see it, the Luciano case also shows how the pension system can be exploited by applicants and how the system, in protecting its bureaucratic turf, sets a threshold for evidence of fraud so high that no investigation could ever satisfy it.

Officials of the Nassau and Suffolk police departments, frustrated by such jousts with the state, describe the pension bureaucracy as so remote and uncooperative, so enshrouded in legalistic fog generated by a handful of lawyers and doctors, that common-sense evidence has no chance to penetrate.

Most police disability cases involve claims of bad backs or other orthopedic problems in which applicants' complaints of pain can be hard to verify or refute solely by medical evidence. Thus, police officials say, evidence bearing on an applicant's credibility is often crucial - and, they say, generally ignored by the pension system.

State pension officials, however, say they gave the county a fair hearing in the Luciano matter and that the county simply put on a weak case. They said they put more weight on medical testimony than on surveillance videos and that the county's case fell short in that regard. One of the three doctors who testified for the county wasn't a back specialist, and another who'd watched the video and given Bugge a written statement that Luciano wasn't disabled testified at a hearing that he was disabled.

Although state officials say they don't consider investigating fraud to be part of their job, they say their doctors and hearing officers do a good job in evaluating who's really disabled. They say all information and records submitted by police departments are considered.

The credibility of disability applicants becomes a multimillion-dollar question for areas like Long Island, with aging police forces and high rates of disability claims. In some recent years as many as one out of three police retirees from Nassau and Suffolk have gotten tax-free disability pensions - a rate substantially higher than in the rest of the state system and in many major cities with higher crime rates.

Former Suffolk Police Sgt. Joseph Michaels could have told Bugge (pronounced boo-JAY) what to expect. He's seen the system from three perspectives. As medical sergeant for the Suffolk police in the early 1980s, Michaels looked into suspicious disability cases. Eventually he retired on disability himself, after a struggle with a suspect caused knee damage requiring three operations. Now, as chairman of the Criminal Justice Coordinating Council, part of Suffolk County government, he studies law enforcement cost issues. Watching officers he considered fakers get disability pensions was the most frustrating part of his police career, Michaels said. He said he came to view 35 to 40 percent of disability applications as bogus or significantly questionable. But the state wasn't interested in evidence that contradicted the applicants' claims, he said.

"That's a situation that presented itself over and over again when these things got to the state," Michaels said. "You say to yourself, 'What did I waste my time for?' " As with many disability cases considered suspicious by police officials, John Luciano's began after he got in trouble on the job. Cited for bravery in 1985, he became the target of a departmental misconduct investigation less than two years later. When he filed his first accident claim in July, 1987, the department's internal affairs unit was investigating tips that some of his friends were cocaine dealers.

"I began to hate to go to work as I wondered what would be next," Luciano, who refused to be interviewed for this story, said in a written statement to investigators.

In his accident claim, Luciano said he'd hurt his back lifting a box of flares into his police car. Nobody saw the incident, according to records. He took several days of sick leave and was assigned to light duty.

After interviewing Luciano, internal affairs investigators wrote a memo describing him as "purposely deceptive when questioned, insolent at times, and uncooperative at best."

Nevertheless, the memo said, he confirmed the allegations: "Luciano acknowledged longstanding associations with three individuals, civilians in the Fifth Precinct [Patchogue] area, whom he suspected were dealing cocaine. Two of these individuals had extensive criminal backgrounds, and all three were arrested during a recent wiretap investigation for conspiracy to distribute cocaine. Officer Luciano never reported his suspicions to the department nor took any police action to terminate this activity."

One day in November, 1987, Luciano, assigned to light duty, was working at the front desk of the Fifth Precinct. He was unpopular in the precinct, Bugge said, because while under investigation he had spread false drug rumors about other officers, then admitted later he'd made them up.

A departmental order came over the teletype. Luciano, who lives in Shirley, read it and learned he was being transferred to the First Precinct in West Babylon, about 30 miles from his home.

About an hour later, the desk sergeant, Henry Oman, heard a noise and looked up. Luciano lay on the floor with a pained expression. In testimony, Luciano said he'd tripped over a broken step while coming down from the raised front desk area.

"My supervisor had called me down for some paperwork . . ." he testified. "As I was walking down the step, the step grabbed the heel of my shoe. It tripped me . . . and I was knocked down and unconscious."

Oman gave a different version in his written report: ". . . at no time was the PO [police officer] unconscious. I was seated 6-7 feet away from the steps and was the only supervisor in the area. I did not request PO Luciano's presence nor did he have any reason to be leaving the desk area."

Luciano took another sick leave. His own orthopedist, Dr. Mark Gudesblatt, diagnosed him as disabled with a herniated disc. But a second orthopedist, Dr. Leonard Weiss, a consultant for the county, reported: "Based upon the physical examination today there is no objective evidence to substantiate the subjective complaints he has."

Despite modern diagnostic tests such as magnetic resonance imaging (MRI), such differences among doctors remain common, because while the tests can identify herniations or bulges in the discs of the back, there is still no test for pain. Richard Lerner, a lawyer who has represented scores of police disability applicants, said: "You can have a small herniation with no pain. You can have a small herniation with substantial pain. You can have a large herniation with no pain. You can have a large herniation where the person can't even move and has to have emergency surgery."

That means an applicant's complaints of pain are still an important part of contested disability cases. Expecting Luciano to file for a disability pension soon, the department opened a new internal investigation, this one into his bad-back claim, and assigned Bugge to head it. Bugge was a rough-cut, workaholic amalgam of intellectual and street cop, a former New York City corrections officer with a masters degree who taught criminal justice at Suffolk Community College. An edge of contempt would come into his voice when he talked about police whom he believed discredited the craft by malingering or lying to fellow officers. His phrase for such people was "this piece of garbage."

On July 6, 1988, Bugge watched and took still photos as Luciano brought the Lucky L into its berth at the Forge River Marina in Mastic. He noted that Luciano did all of the unloading and cleaning while his companions waited on the dock. "He also lifted a large cooler/chest half filled with liquid that, estimating by his arm span, appeared to be approximately three feet by two feet by one foot. He carried the chest over to the side of the boat and dumped the liquid, probably water, overboard," Bugge wrote in his report.

To get better evidence, Bugge used a video camera on his next surveillance. He learned that Luciano had an appointment on July 15 with Dr. Jose Escobar, a physician with Suffolk County. He watched Luciano arrive, limping, wearing a brace, using a cane, with his wife driving the car. " ... [H]e complained of severe pain and restricted all his movements," Escobar later wrote of the visit in a memo.

Then Bugge followed Luciano to the marina and videotaped him as he worked on the Lucky L. An Escobar memo, written after he viewed the tape, described the scene: "The video tape revealed PO Luciano, dressed in shorts, bending, extending his back, twisting his back, performing heavy work on the deck of the boat. Evident was no limitation of motion. Evident was no indication of pain. The video tape also showed his wife evincing no concern regarding her husband's activities." His limp, this memo noted, had disappeared.

When Luciano came back to work in early August, he was again limping, wearing neck and back braces and using his cane. But he wasn't on the job long. On Aug. 8, he pleaded guilty to departmental charges that he "failed to take any police action concerning information he had received regarding the illegal sale of narcotics" and that he'd failed to tell his commanders what he'd learned from his drug-dealer associates. The department suspended him without pay for 30 days and fined him 20 leave days.

On the first day of his suspension, Lt. James Maher and Sgt. Robert Haack videotaped Luciano again. Their report describes the tape: "He's on the deck of his boat . . . He's shirtless, wearing swim trunks. His cane and back brace are never utilized, nor are they anywhere in sight . . . For the first 15 minutes Officer Luciano can be observed doing light and continuous lifting and hoisting. He begins doing some cleaning . . .

"For the next 35 minutes [he] engages in a sustained cleanup action on his boat. Utilizing a long-handled scrub brush and a plastic bottle of liquid detergent, he scrubs down the entire interior and exterior of his boat. For the exterior of the hull he extends himself by balancing precariously on one leg and stretching toward hard-to-reach spots. He continuously stretches, bends and squats without showing any visible signs of pain and discomfort. He never takes a rest or a brief respite, and he never holds or motions toward his back." Family members were there but didn't help, they noted.

Investigators also watched Luciano piloting the boat. But when Bugge and Lt. James Storz questioned Luciano, he denied doing things they'd seen on the tapes. Bugge: "Was there ever a time after June, 1988, when you went out on your boat, piloted your boat, scrubbed your boat down, hooked up lines, bent and did a lot - "

Luciano: "Never! No."

The police department sent the videotapes to pension officials in Albany, who already had received Luciano's disability application. In January, 1989, Insp. William Okula, then commander of the internal affairs bureau, followed up with a letter to pension officials, noting that the departmental investigation had concluded that Luciano "fabricated and/or greatly exaggerated the nature and extent of his injuries and disablement."

Okula sent Bugge's investigation report to the office of then-Commissioner Daniel Guido, recommending charges of malingering, lying to a superior and submitting a false report. "Officer Luciano has become a disgruntled employee who is now attempting to defraud the department because of his own misguided sense of injustice," Okula wrote.

The charges brought by the department alleged that Luciano "created and maintained an ongoing fraudulent scheme to deceive this department, the Office of Employee Medical Review, the New York State Workers Compensation Board and the New York State retirement system by falsely claiming that he is permanantly disabled . . ."

Then, unexpectedly, the department got a form letter from Albany; the retirement system had approved Luciano's disability pension. Nobody from the pension system had expressed any interest in the pending fraud case, and state officials acknowledged later that they'd made the decision without looking at the videotapes, Bugge and other police officials said.

Guido, now an associate professor at John Jay College in New York, said his aides got a hostile reception when they called pension officials to question their handling of the case. "They said we had 'no standing' to bring this up," Guido said. "The general reaction was 'Who the hell are you people and why are you throwing this monkey wrench into our system?' "

At this point, the county faced a financial and moral dilemma. "The easy way out," Guido said, would have been to stop opposing Luciano's pension and let the state send him pension checks for the rest of his life. That would get him off the department's payroll and free up a budget line for hiring a new, probably less troublesome police officer.

But Guido, known in the department for his straight-arrow views on ethics, decided that would be condoning what he viewed as fraud. "And we were sure at that time, with the evidence we had, that we could prevail and convince the state that they ought not to be awarding this gentleman a disability pension."

State officials, for their part, say they went out of their way to give Suffolk a fair chance to make its case against Luciano. Even though the state attorney general ruled in 1960 that municipalities have no legal standing to take part in pension decisions, state pension officials note, the system gave Suffolk a formal hearing to present its case, the first time in senior state officials' memory that that's ever been done. "The bottom line is they didn't put in a very good case," Deputy State Comptroller John Mauhs said.

Preparing for the hearing, Bugge got copies of the videotapes and the MRI study of Luciano's back and began showing them to doctors. A physician at the University Hospital at Stony Brook agreed to interpret the MRI if Bugge would keep his name out of the case. This doctor, he said, explained that the MRI didn't show anything conclusive. One disc had a slight bulge that might be a small herniation. But many people have such bulges without being disabled, and there was no indication of pressure on the spinal nerves, which causes back pain.

Weiss, the county consultant, who hadn't seen the MRI when he examined Luciano before, examined the MRI, watched the videotape and agreed with the Stony Brook doctor. He gave Bugge a statement that the MRI showed nothing significant and added: "I can now state, unequivocally, that Officer Luciano . . . is indeed capable of performing full duty as a police officer."

Dr. David Koretz, who'd previously diagnosed a "moderate partial disability" and found Luciano unable to work, gave Bugge a strong statement concluding otherwise. The MRI did not show "any strong objective medical evidence" of disability, Koretz wrote, adding: "It would appear from a viewing of these tapes that Officer Luciano does not have anything wrong with his back. I would say that, in my opinion, his subjective complaints of pain should be viewed as highly suspect."

The hearing turned into five hearings; in all, the process of reconsidering Luciano's pension took two years. Through all of it, the county had to keep him on the payroll at his full annual salary of $51,173. But because he'd already been approved for disability retirement, he didn't have to work. Bugge's commanders became convinced that the snail-like pace was the state's way of getting back at the county for treading on state turf. State officials say that's not true. Nevertheless, by the time the lengthy proceedings were over, the county would pay Luciano more than $100,000 in salary for doing nothing.

As the hearings dragged on, Bugge realized that things were not going the county's way. The administrative judge, DeForest Pitt, wasn't someone whom both sides had agreed upon, as in arbitration. He'd been selected by the pension system and was paid by the pension system, which was treating the county as an opposing party in an adversary proceeding. Pitt did not return calls from Newsday.

Luciano's lawyer, Allen Kranz, whose law firm was representing him under its contract with the Suffolk PBA, seemed to Bugge the strongest player in the contest, a fox in a flock of bureaucrats. "Kranz was a very good lawyer, one of the type of guys where you say, 'If I ever get in trouble I'll get this guy,' " Bugge said. "He totally outgunned the county attorneys, because they were new, and you could see they looked up to him. You could see by the way they were reacting to him - he was almost a mentor."

The pension system refused to release the hearing transcripts to Newsday, citing privacy concerns. But according to participants, the doctors who testified for the county did not make a strong case, and Pitt appeared uninterested in the videotape. The county presented three doctors: Escobar, Weiss and Koretz. Escobar testified that Luciano was fit for duty. But his pronounced accent and the fact that he wasn't an orthopedist undercut the impact of his testimony, participants said.

According to Pitt's written decision, which summarizes some of the testimony, Weiss also testified that Luciano wasn't disabled. But he had to acknowledge under questioning that he couldn't say for sure that Luciano wasn't disabled on the date of his application because he had examined Luciano several months earlier. There was no evidence that Luciano had experienced any new injury between the two dates, but nevertheless Pitt cited the point as significant.

Koretz, according to Pitt's decision, testified that Luciano was disabled - the opposite of what Koretz had told Bugge in a strong written statement. But under the rules of evidence for such hearings, the written statements Bugge had gotten from the doctors weren't allowed as evidence. Why Koretz changed his opinion could not be learned; he did not respond to calls and letters from Newsday.

With the county's case faltering, Kranz approached Bugge during a recess and asked why the police department didn't just drop its opposition. Wasn't it clear that the state didn't want to change its mind?

Bugge said: "Kranz says, 'Why do you guys care? You know he's a moron, I know he's a moron. Why don't you just let this guy go?'

"I said, 'That's 'cause you're a lawyer, that you're missing the principle of the thing. We're not going to let him go - he's a phony and we're going to fire him.'"

Kranz confirmed they had a conversation along those lines but denied calling Luciano a moron. Luciano's doctor, Gudesblatt, testified that Luciano was disabled. So did Dr. Barry Jupiter, an orthopedist who examined him for the pension system. State officials said they believe they sent Jupiter copies of the videotapes. Jupiter did not respond to requests for an interview, but through an aide said he didn't recall seeing any tapes.

But most damaging of all to the police department's case, Bugge realized, was the "good day" loophole. This point came up repeatedly as Kranz questioned the doctors - wasn't it possible that Luciano was merely "having a good day" when he worked on the boat? Or three good days? Wasn't it possible that on other days he was in pain? Wasn't it possible that at other times he was disabled? Yes, the doctors would say; yes, that was possible.

It was only after Bugge had heard this several times that the full implications became clear - short of videotaping someone 24 hours a day for months, there really wasn't much chance that a police department could overcome the good-day loophole and prove malingering. If an applicant could show some kind of irregularity in his back and produce a doctor who would say it was disabling, the good-day loophole pretty well assured his success. Three surveillances hadn't been enough in the Luciano case, so why would 10 surveillances be any better? If a disabled person could have one good day, or three, then he could also have 10.

"Once we got to the hearing, common sense went out the window," Bugge said.

Kranz, in an interview, said the odds had been against the county all along. "When you go up against the state retirement system, you've got a tough row to hoe," he said. "You've got an administrative agency that's got a right to rely on their own expert's opinion as long as it isn't irrational. You get a hearing officer that's appointed by the retirement system and paid by the retirement system."

The videotapes, Kranz said, "didn't prove a thing. It just showed that on a couple of isolated days in the summertime when it was warm, somebody with a back problem was able to do things they might otherwise not be able to do."

When Pitt's decision finally arrived at the Suffolk police department, the finding was no surprise: "The County has not met its burden of proving that John Luciano is not incapacitated for the performance of his duties." Now 46, he retired July 1, 1991, and collects a tax-free pension of $34,116 a year. In a recent interview, Suffolk Police Commissioner Peter Cosgrove was asked whether the department would take on the pension system again if police officials felt they had strong evidence that a disability applicant was faking.

No, Cosgrove said. "If we had a similar case, I clearly would not expose the county to a situation like that. I would perhaps contact them, let them know what I had. If I didn't get cooperation, I would just back away. I'd do what I think was right, but I'm not going to fight them."

© 1994, Newsday

By Brian Donovan and Stephanie Saul

Trying to look inconspicuous, Det. Sgt. Robert Kiesel sat in his unmarked police car with his finger on the trigger - of a video camera. He was on stakeout duty, waiting to spot the target of his investigation: a Nassau police lieutenant.

Kiesel had a job few officers wanted, one he sometimes didn't want himself. It had brought him bomb threats, slashed tires, an ulcer and high blood pressure.

As a detective sergeant in Nassau's police medical unit, Kiesel investigated officers suspected of malingering. The good part of the job was knowing he'd saved the taxpayers some money. One of the bad parts was feeling like an outcast in the department.

It was April, 1985, and Kiesel peered through the rain-spattered windshield at the travel agency owned by the lieutenant's wife on Middle Country Road in Middle Island. Eventually, Lt. Mauro Fiore drove up and strode briskly into the agency. Kiesel taped him, watching closely for a limp. He saw no sign of one, he said in a recent interview.

Fiore, then 46, a desk officer, had tripped over an electrical box in his station house in November, 1984, and had had a knee operation, according to department records. Now he was on sick leave. Sometimes modern surgical techniques could make bad knees as good as new. Kiesel was in the parking lot across from Everyday Travel to answer one question: Did Fiore still have any serious knee problem?

For several days Kiesel said he watched the agency as Fiore was making repairs to the office. Kiesel taped him walking back and forth to his car for supplies and tools, carrying lumber and a box of ceiling tiles, and putting out the garbage. Through the big front window, Kiesel said, he could see Fiore climbing up and down a ladder. Throughout all of these jobs, Fiore had the gait of a young man. He never limped.

Then the department called Fiore in for questioning, and Kiesel tried one of his favorite tricks. Sometimes this trick gave his videotapes a comic ending. After taping an officer who didn't know he was being watched, Kiesel would also tape him as he came up the department's front steps for questioning. The idea was to show the contrast in how he walked when he thought someone might be watching.

When Fiore walked up the steps of police headquarters, Kiesel saw through the viewfinder what he'd been expecting. Fiore looked like a different person from the one who'd been working so efficiently on the travel agency renovations. As he climbed the police department steps, he limped like a movie pirate with a peg leg.

Kiesel's investigation resulted in the department's filing seven disciplinary charges against Fiore for violating sick-leave rules. Fiore pleaded guilty. He was fined 35 days' pay and suspended for 30 days without pay.

Fiore returned to work, but continued to complain of problems with his knee, and filed for a disability pension. He then reported another fall while on duty. John Sharp, then commander of the medical unit, said he offered to send state officials the videotapes. As in other cases, they didn't respond to the offer, Sharp said.

Nevertheless, the state twice turned down Fiore's application for a disability pension based on doctors' findings that although he had a disability, he could still perform his desk officer duties. He retired on a regular pension in 1987, but continued to fight for the disability pension.

Nassau police unions argued successfully on behalf of Fiore and others who had been similarly rejected that disability applicants should be judged against the full duties of a police officer. In 1990, the state reconsidered, and Fiore, then 52, and several others got their disability pensions. He collects $62,974 a year, tax-free.

Asked for comment, Fiore denied that Kiesel had caught him doing any renovation work at the travel agency. "I went down to my wife's office to sit around and drink coffee with her ....I wasn't working there. I was just basically going down there and hanging out."

For Kiesel, the other bad part of the medical job was the sense of futility. Cops he didn't respect, cops he considered an embarrassment to the job, were beating the system, as he saw it, and all he could do was give them some temporary problems.

In the long run, when the big money was at stake, they came out the winners. "That's what gets you upset, when you see abuses go through," Kiesel said. "We've sent Albany letters, reports, videotapes on cases where we knew the guy was faking. Never got a response back. Not even, 'I got the tape, thank you.' They should be taking a much harder look at these cases."

© 1994, Newsday

By Brian Donovan and Stephanie Saul

When Suffolk Det. Joseph Brock began seeking a state disability pension in 1990, there seemed to be several obstacles in his path.

After 21 years on the force, Brock reported that he tripped over a telephone wire in his office and hurt his left foot. He said he could hardly walk and went on sick leave.

But potential problems kept coming up. Someone in his chain of command added a handwritten note to the official accident report that seemed to strike a skeptical note: "as per Sgt. McVeigh -did not fall."

An X-ray, an MRI and an electro-diagnostic test found nothing conclusive, acording to reports by the doctors who conducted the tests. And Dr. Melvin Jahss, a Manhattan orthopedist who examined Brock, concluded: "I find no evidence of any objective orthopedic or neurological disorders at this time."

As things turned out, however, the questions about Brock's accident and his disability proved to be no problem. One of Long Island's leading lawyers in the field of police disability, Michael Axelrod, already had won a case for another police client that set a precedent helpful to Brock -that a slip-and-fall accident need not include an actual fall to be considered legitimate.

And Brock's orthopedist, Dr. Stephen Zolan, who has treated dozens of police disability applicants, diagnosed him as totally disabled for police work, despite the negative results of the diagnostic tests.

Ultimately, the state pension system agreed with Zolan. Brock retired at age 46 in 1992 with a disability pension of $52,973 a year, tax free. His pension was boosted by the $8,006 worth of overtime he worked in his last year.

Brock did not respond to a request for an interview, but Newsday observed him recently working around his house, walking around his Bay Shore neighborhood and shopping, without any sign of a limp. He wore a tee-shirt for a local health and racquetball club, where an employee said he's a member.

State pension proceedings are confidential, so exactly how state officials reached their decision on Brock isn't public record. Assistant Deputy State Comptroller John McManaman said the doctor who examined Brock for the state agreed with Zolan's diagnosis. McManaman said he couldn't elaborate because of privacy rules.

Brock's case illustrates how a small group of lawyers and doctors has played a central role in winning police disability pensions in scores of Long Island cases, some of them clearcut, others based on unwitnessed accidents and conflicting medical evidence. Most police disability claims involve back, knee or other orthopedic ailments in which the medical evidence supporting an applicant's complaints of pain can be ambiguous and open to different interpretations.

Newsday's investigation of the disability pension system found that the same few doctors and law firms appear repeatedly in police cases. Their important role in the process was emphasized in an internal study by the pension system in 1991. The study noted the "greater sophistication" of Long Island disability applications and said Nassau and Suffolk "evidence a high rate of disability approvals, probably as the result of pre-application legal and medical advice."

Two orthopedists, who figured in many of the cases examined by Newsday, were described by police and county officials as the leading police-disability doctors on Long Island,

One is Zolan, who practices with the Health Insurance Plan of Greater New York Inc. in North Babylon. The state used to hire Zolan as a consulting doctor to examine Long Island police disability applicants for the pension system. State officials said they dropped Zolan as a consultant in 1988, however, because he also continued serving as the private doctor for many police disability applicants, and officials said his dual role raised concerns of a conflict of interest.

Nassau County also used Zolan as a consulting doctor to examine employees who filed injury claims under the workers compensation system. County officials told Newsday they dropped Zolan as a consultant after a police official and a workers compensation judge questioned his credibility. Zolan did not respond to repeated requests for an interview.

The other orthopedist identified by police and county officials as one of Long Island's two top police-disability doctors is Dr. Jacob Lehman, who has a private practice in Patchogue. Like Zolan, Lehman has figured in cases where officers he diagnosed as disabled were awarded disability pensions although police investigations found them capable of strenuous activities.

For instance, Nassau Police Officer Robert Grzymala, diagnosed by Lehman as disabled with a herniated disc, refused to come in from sick leave and testify against a criminal defendant, saying he was in too much pain. But two days later, police caught him playing 23 holes of golf, quitting only when it got dark.

A Suffolk police official said the department's orthopedist has criticized Lehman as too quick to diagnose officers as disabled and to approve long sick leaves. Lehman also did not reply to requests for an interview.

For many officers, applying for a disability pension is largely a free ride. Both the Nassau and Suffolk Police Benevolent Associations, the unions representing rank-and-file officers, have law firms on retainer that handle members' applications for free or at nominal cost.

Attorney Richard Lerner, who handles many disability-pension applications for officers who want their own lawyer rather than the union's, discussed his fees in an interview: "My fee is, I charge $950 for the application. If they get the disability after the application, then I charge nothing further. There is no hidden contingency cost. If it's an appeal, I charge $3,000 for the first three hearings. If it goes beyond the three hearings, there usually is an additional fee. The appeals are rather time consuming and hard to do."

The expense of officers' medical examinations is mostly or entirely covered by the workers compensation system. Workers compensation, a county-financed program separate from the state pension system, pays medical bills and other benefits for police and other municipal employees hurt on the job. A single visit to an orthopedist can cost over $200.

Former State Comptroller Edward Regan attributed the boom in Long Island police disability cases in recent years partly to "very, very, very clever lawyers who have taken advantage of everything." State records show that Nassau and Suffolk have had much higher rates of approval for disability applications than other parts of the state.

Lawyers who handle police disability cases say that one reason for Long Island's high approval rate is that they reject many pension-seekers whose cases are weak. Milan Rada, a partner in the firm that handles most Nassau disability cases, said that 409 PBA members had come to him since 1988 seeking disability retirements. Of those, he represented only 205, he said. "What we have tried to do is to screen the cases very, very carefully and put in only those who we thought had merit," Rada said.

Four law firms have represented most of Long Island's successful police disability applicants, lawyers and police officials say. One of those firms also serves as legal counsel to one of the major police lobbying groups, which has successfully pushed for legislation over the years that has expanded and sweetened the state's police-disability program. The firms are:

• Scheine, Fusco, Brandenstein & Rada of Commack, which has a contract with the Nassau Police Benevolent Association to represent disability applicants.
• Kranz, Davis & Hersh of Hauppauge, which represents the Suffolk Police Benevolent Association.
• Axelrod, Cornachio & Famighetti of Mineola, formerly legal counsel to the Nassau PBA, currently the law firm for the Suffolk Superior Officers Association and the Metropolitan Police Conference, a lobbying broup.
• Lerner, Gordon & Hirsch of Carle Place. Partner Richard Lerner is a former Nassau PBA attorney.

The road from an injury to a disability pension can be long and full of potholes. Some applications roll through the system smoothly. Others spend years in administrative hearings and the courts. Along the way the applicant must successfully deal with various make-or-break questions. Does the mishap that caused the injury satisfy the legal definition of an accident, or was it a predictable hazard of the job? Did the bad back result from the accident or just from aging? Is the limp permanent or will it clear up?

It's a system that's complicated and sometimes adversarial. But it offers a lucrative reward, and applicants' doctors and lawyers serve as expert guides. In the often murky world of police injuries, where many cases are ambiguous and open to dispute, they make the wheels turn. Here is a look at some of the players and issues:

THE DOCTORS

Among those whose work involves police disability pension cases, there are two sharply contrasting views of Zolan and Lehman. To lawyers who represent applicants, the two orthopedists are part of a dwindling breed, specialists whose success hasn't caused them to lose the common touch. While some doctors shun the red tape of treating government employees, or charge hefty fees to testify at hearings, lawyers say Lehman and Zolan have developed a large clientele among public employees because they help their patients navigate the swamps of bureaucracy.

Although the confidentiality of medical records makes exact statistics impossible, county and police officials in Nassau and Suffolk say that Lehman and Zolan are the leading practitioners in representing police applicants in disability pension proceedings, figuring in hundreds of cases.

Attorney Richard Lerner, who has represented hundreds of officers seeking disability pensions, said Zolan and Lehman have two of the largest public-employee practices on Long Island because they are expert not only at medicine but also at government paperwork and testimony. "Dr. Zolan and Dr. Lehman are very, very good practicing doctors..." Lerner said. "They do a tremendous amount of policemen."

But among police officials whose duties include investigating malingering and sick-leave abuse, Lehman and Zolan are sometimes criticized as too quick to diagnose a backache as justifying a disability pension or long sick-leave.

"Their names are well-known to us; we frequently see them," said Deputy Suffolk Police Commissioner Robert Kearon. "I would assume that it has to do with the success rate that these doctors have enjoyed with other applications. Word obviously quickly spreads throughout the police community that a particular doctor happens to write reports in such a way that they're generally favorably received."

Sgt. Vincent Ward, former head of the Suffolk police medical evaluation unit, which monitors officers on sick leave, said: "If a cop calls up his union and says, 'Can you recommend an orthopedic doctor?' the union's either going to recommend Zolan or Lehman. And I find that my counterpart in Nassau County, he comes up with the same names, so his union must be recommending the same doctors."

Suffolk PBA officers refused to talk to Newsday. Ward said he believed the two doctors are popular because they are liberal in writing recommendations for sick leave. "They give the notes freely...," Ward said. "If the guy says I want to stay out, they'll give him the notes keeping him out a few months."

Det. Sgt. Robert Kiesel of the Nassau police department's medical administration unit said: "Zolan saw so many patients from this department, he has to be number one...What happens is they build a reputation. . . And it becomes known, and one guy says 'Go see my doctor, he's a good doctor,' and the guy does, and his clientele builds. He does very well at it."

State and police union officials, however, say the system has ample safeguards to weed out undeserving applicants even if their own doctors may find disability in questionable cases. Disability pension applicants must be examined by a state-appointed doctor as well as their own physician, and a board of doctors reviews the findings before the state comptroller makes a decision.

Nassau PBA President Gary DelaRaba scoffed at criticism from former State Comptroller Edward Regan that too many Long Island officers have gotten disability pensions with the help of doctors and lawyers who specialize in such cases.

"So Ned Reagan says 'Hey, I got a problem with this?' Maybe he ought to take a look at his doctors...I mean, the guy's got to have an injury. He's got to be able to document it, correct? I mean, if you can't document it, do you think that we're that sharp, that we've managed to insert PBA doctors into the state system?"

In fact, during the 1980s, Zolan did receive appointments as an examining doctor for the state pension system. The system hires local doctors around the state as consultants to examine disability applicants. State officials say Zolan was dropped as a state consultant in 1988, however, because he also continued to serve as the personal physician for many police applicants in other disability pension cases.

Deputy State Comptroller John Mauhs, who heads the system, said state officials believed Zolan's dual role raised "the concern of a conflict of interest. Dr. Zolan was performing so many examinations for the union, for the policeman, we felt perhaps he was not as independent as he should be. We wanted an independent appraisal of our applicants."

Zolan also worked for Nassau County as a consultant during the 1980s, examining county employees who filed claims for on-the-job injuries. A high-ranking county official, who asked not to be identified, told Newsday that one reason the county used Zolan as a consultant was to prevent his being used by county employees seeking benefits.

Officials considered Zolan an effective advocate for his patients and decided the easiest way to neutralize him was to hire him for the county's side, the official said. If Zolan was testifying for the county then he couldn't also testify for employees. "He was killing us with his testimony," the official said, "so we decided to hire him ourselves."

But the county dropped Zolan, officials said, after police officials and a workers compensation judge complained about him. In one case that particularly annoyed Nassau police officials, Zolan issued what they considered conflicting medical opinions on Police Officer George Rivera, who was complaining of elbow pain in 1985.

Rivera said his injury occurred when a seizure patient banged his arm into the side of an ambulance. When Zolan first examined Rivera for the county, he described Rivera's condition as "a mild, minimal disability" unrelated to the ambulance incident. "I think that the patient's present lateral epiconylitis probably originated in its severe degree from his...digging in his yard," Zolan wrote.

Then, Rivera became a private patient of Zolan's, according to records. Eleven months after the first report, Zolan wrote that although the digging had "aggravated" Rivera's elbow problem, "his present condition is the natural and proximate result in my opinion" of the ambulance incident -a change which made the elbow ailment a work-related injury for which doctor bills could be paid by workers compensation.

A Nassau police surgeon, Dr. A. Malcolm Hetzer, who examined Rivera, wrote that the officer had been seeing another doctor but "has not seen him in six months. Now sees Dr. Zolan (advises him he has arthritis and should file for 3/4 disability)...Filed for 3/4 disability one week ago." The fraction 3/4 is police shorthand for a disability pension, referring to the maximum possible benefit of three-quarters pay. Rivera's disability pension application was turned down.

Det. Sgt. Kiesel said he went to the county attorney's office to complain about Zolan. Kiesel said he understood the pragmatic reason for using Zolan but felt it was wrong.

"He knows full well who's paying his check," Kiesel said. "So if it's the patient, the guy can never work...But if it's for the county attorney, the guy can always work; he's never disabled. He knows who's signing the check. That's why the county attorney loved him....I said, 'Give me a break, it's not right, it doesn't look good.' So they started using other doctors."

Asked why the county dropped Zolan, Assistant County Attorney Peter McDonald, who heads the unit that administers workers compensation cases, said one reason was a conversation McDonald had with a state judge from the workers compensation system.

McDonald said the judge, whom he wouldn't identify, called him aside and told him the county was hurting itself by using Zolan as an expert witness. "Not in his court, is what he told me, this particular judge," McDonald said. "'Not in my court. You're not doing yourself any good. He has no credibility.' So we stopped using him."

In the disability pension case of Suffolk Detective Brock, who said a trip on a phone wire left him with severe pain in his left foot, Zolan was Brock's private physician. Although an MRI and a consulting orthopedist found no conclusive evidence to substantiate his complaints, Zolan found Brock totally disabled and unable to fire his gun, and Brock's chiropractor said his limp had caused a back problem, according to medical records.

Assistant Deputy State Comptroller John McManaman, while declining to discuss the case in detail, said there was disagreement among doctors over the MRI findings. "There were interpretations that the MRI was positive, and the orthopedist who examined him for us found the disability...Our doctor and Brock's doctor did find the disability."

For years, the road to retirement for some Suffolk police officers, and for some Nassau officers who live in Suffolk, also has led to the offices of Dr. Jacob Lehman, who started his practice in Patchogue in 1966. Police and county officials say that Lehman handles more police cases than any other orthopedist in the county and that, like Zolan, he has faced some criticism from the police department.

Ward, the former Suffolk medical sergeant, said when an orthopedist, Dr. Robert Reiss, began work as a departmental doctor last year, Ward warned him that one thing about the job would be different from what the doctor was accustomed to. "What you're going to see, it's not like your private practice," Ward said he told Reiss. "Private people come to see you in private practice to get better. I said, you're going to see a bunch of people coming through here, they don't want to get better - they want to retire."

Since Reiss joined the department, Ward said, he has often disagreed with Lehman's diagnoses. "Most of the time," Ward said. "He calls him up on the phone -'How can you do this?'" Reiss has also met with Lehman and urged him to shorten the sick leaves he recommends, Ward said. Reiss declined to be interviewed.

During the 1980s and early 1990s, Lehman referred some police patients to two diagnostic testing businesses in which he owned financial interests, according to records. This practice of so-called self-referral became controversial in the mid-1980s and will become illegal next year under a new state law.

Lehman filed documents in court in 1991 disclosing that he was a limited partner in Long Island NMR of New Hyde Park, which does magnetic resonance imaging (MRI) tests, and South Shore Cat Scan of Medford. The State Legislature passed a law in 1992 prohibiting such referrals but gave doctors who already held such interests until July 1, 1995, to stop referring patients to the facilities.

Nassau and Suffolk are self-insured for employee medical expenses; all diagnostic tests ordered by doctors in workers compensation cases are paid for with county funds. Deputy Police Commissioner Kearon, an attorney, said the department didn't know about Lehman's interest in the diagnostic facilities, an arrangement that he said "raises questions."

"When they seek authorization from us or from Albany or whomever for additional diagnostic tests to confirm preliminary medical opinions at the same time they may be financially benefitting from those tests, then I question whether or not there's a bit of a conflict of interest," Kearon said. "Certainly it would appear that way."

The MRI that Long Island NMR did on Grzymala at Lehman's request cost $950. Records show that Lehman made $72,067 from the two diagnostic businesses during 1988 and 1989.

THE LAWYERS

"Injured on or off the job? We'll protect your rights. We'll help you get all the monetary and health care benefits you deserve."

The legal advertisement in last December's Nassau PBA newsletter trumpeted the services of Scheine, Fusco, Brandenstein & Rada. The PBA put the Commack firm on retainer in 1988, paying them about $65,000 a year to lead cops through the complex workers compensation and police disability systems. The firm's hiring has paid off - its disability clients have a 75 percent approval rate in Albany.

But critics of Scheine Fusco and the three other Long Island law firms that represent police disability applicants say they are the driving force behind a dramatic increase in awards of the lucrative pensions, with the retirement system staff no match for their preparedness and legal expertise.

"The bigger the union, the more financial resources they have through dues. And they can hire high-priced attorneys who are much more sophisticated in their abilities," said Nassau Police Comissioner Donald Kane.

Three of the four top Long Island police-disability lawyers were proteges of Richard Hartman, the former Nassau and New York City PBA attorney credited with making Long Island police among the highest paid in the nation. In interviews, Allen Kranz, Michael Axelrod and Richard Lerner said they gained invaluable experience during their years with Hartman, a workaholic near-genius who was a master of both the political arts of winning bigger police benefits and the legal expertise to make sure clients got to take full advantage of them. (Hartman left the practice of law in 1988, acknowledging he had improperly borrowed clients' escrow funds to pay off gambling debts.)

The fourth leading police-disability lawyer on Long Island, Milan Rada, is a former attorney for the Social Security system. The sophistication of these lawyers, state officials say, gives Long Island police an edge over those from areas with smaller police forces, where lawyers who specialize in police pension law often don't exist.

The lawyers advise police applicants at every step along the process toward getting disabiility retirement. First, they review their cases to see if they meet the technical legal requirement for disability retirement. Then they look to see if the cops have undergone sufficient diagnostic testing to prove they are disabled and have statements of disability from their doctors.

Occasionally, Axelrod said, he will ask doctors to revise, their statements slightly to help cops win disability pensions. "I have a very significant percentage of these letters that are not good, not the sort of letters I would want to see...," Axelrod said. "..The letter will say, 'Prognosis at this time is guarded.'"

But, he said, the term "at this time" suggests that the officer could get better. Disabliity retirements are supposed to be permanent. "We'll ask a doctor to review the letter to see if it's possible to have 'at this time' removed," Axelrod said. "Obviously, they can't change the content."

A promotional brochure for the Scheine, Fusco firm says: "It is essential that we keep close ties to the health care community, so that we can refer our clients to qualified doctors, chiropractors and health care professionals on request."

Axelrod represented the Nassau PBA before Scheine, Fusco was hired. Part of Axelrod's arrangement with the PBA was that he would represent any member who wanted to get disability retirement. Sometimes, Axelrod acknowledged, the cases would be "turkeys."

"I've seen ... hundreds of police officers come in, many of them were legitimately hurt, many -some -were looking for the golden parachute....When police officers saw their fellow brother or sister police officers getting it, then they in turn wanted to get it themselves.

"In 1976, four Nassau police officers got accidental disabilities," said Axelrod, who still represents many police and fire groups, including the Nassau detectives and the Suffolk Superior Officers Association. "In 1986, the number was about 92, some phenomenal number. There were a lot of lawyers who understood the game."

When newly-elected PBA President Gary DelaRaba hired Scheine, Fusco to do the disabilty work in 1988, the rules of the game were changed. No longer would the PBA subsidize any disability claim, no matter how tenuous. "Guys used to think it was a constitutional right to file for three-quarters," DelaRaba said. Under the PBA agreement with Scheine, Fusco, the firm has the right to turn down cases they don't think are winnable.

DelaRaba argues that the screening of applications by Rada's firm amounts to a weeding-out of potentially phony disability claims. On the other hand, the PBA retainer to Scheine Fusco -which DelaRaba said amounts to about $65,000 a year -facilitates filing by Nassau cops, who otherwise would have to hire their own lawyers.

The Nassau PBA newsletter bombards members with tips on how to maximize their pension and disability benefits. Almost every issue contains a report on disability applications, telling officers the proper way to fill out accident reports, the types of accidents that qualify for disability, and the smorgasbord of other benefits available to those who are injured -including Social Security disability and monetary awards from negligence lawsuits filed against private citizens.

For some firms, lawyers say, handling disability retirement cases for police at lower fees than they charge in other cases serves as a sort of loss-leader. The good will and name-recognition among police generates plenty of other business such as real estate closings, negligence suits, divorces and estate work.

It was Axelrod who won a precedent-setting case in 1985 establishing that a slip-and-fall accident need not include a fall to meet the definition of an accident, a ruling that helped the case of Suffolk Detective Brock, whose accident report said he tripped on a phone wire but did not fall.

Axelrod, who's also North Hempstead Town Republican leader and counsel to a police lobbying organization, the Metropolitan Police Conference, said he's represented hundreds of disability applicants since the 1970s. He says most of them were legitimate.

"The overwhelming number of these officers who received them are seriously hurt doing a very difficult job. Yes, there are fakers, there are in every walk of life...I have a very high success ratio on these pensions--three out of four or better, and my success ratio on appeals is better than one out of three. That's very high -they've been rejected and we've reversed it."

BOARD MEMBERS

Here are the six members of the state retirement system's medical board who decide if applicants for disability pensions are disabled. They hold two four-hour meetings a week and are each paid $400 per session.

• Dr. Kevin D. Barron, 65, is a professor of neurology, pathology and laboratory medicine at the Albany Medical College of Union University and a consultant at Stratton Veterans Administration Medical Center in Albany. Born in St. John's, Newfoundland, he received his medical degree at Dalhousie University Faculty of Medicine in Halifax in 1952. He did his residencies in internal medicine at Victoria General Hospital in Halifax and Queen Mary VA Hospital in Montreal and his residency in neurology at Montefiore Hospital in the Bronx. He is a past chairman of neurology at Albany Medical Center Hospital.
• Dr. George W. Hemstead, 74, is a clinical associate professor at Albany Medical College. Born in Albany, he was certified in internal medicine in 1953. He earned his medical degree at Harvard Medical School in 1944 and did his residency at Albany Medical Center Hospital. He also has a private practice.
• Dr. Carl R. Wirth, 54, is an associate professor of orthopedic surgery at Albany Medical College, where he earned his medical degree in 1966. He did both his internship and residency at Albany Medical Center Hospital. Wirth also has been an orthopedic consultant for the Siena College basketball team and the team physician for the Albany- Colonie Yankees, a New York Yankees farm team.
• Dr. Franklin Glockner, 63, is chief of orthopedic surgery at Stratton Veterans Administration Medical Center in Albany and an associate professor of clinical surgery at Albany Medical College. He earned his medical degree at State University of New York at Buffalo in 1960. He did his residency in general surgery at Beth Israel Hospital in Boston and in orthopedic surgery at Albany Medical Center. He also has a private practice.
• Dr. James F. Castleman, 59, is a clinical associate professor of medicine at Albany Medical College. A hematologist, he graduated from New York Medical College in 1960 and has a private practice.
• Dr. James M. Sullivan is retired from private practice. Born in 1937, he is an oncologist and a clinical associate professor of medicine at Albany Medical College, where he received his medical degree in internal medicine in 1963.

Board Members Compiled by Eden Laikin.

© 1994, Newsday

By Brian Donovan and Stephanie Saul

Eight months had passed since Nassau Police Officer Robert Grzymala filed his accident claim, and he was home on sick leave, recuperating from what he said was a painful back injury.

The pain was excruciating, Grzymala told the police department - so bad he couldn't make it to court to testify in a criminal case in which he'd made the arrest. The department offered to send an ambulance for him, but Grzymala refused.

Two days later, a police surveillance team - staked out on the parking lot of Pine Hills Country Club in Manorville - got a different perspective of Grzymala's condition.

There they videotaped Grzymala leaving the clubhouse carrying his golf clubs and wearing his spiked golf shoes, walking to his car. On the police videotape, he can be seen bending at the waist more than 90 degrees, reaching down straight-legged, taking his shoes off, and putting them and the golf clubs in the trunk, according to police.

"There was absolutely nothing wrong with this guy," said Dep. Insp. John Sharp, who was then head of the Nassau County Police Department's medical unit. Observing department guidelines, Sharp would identify Grzymala only as "the golfer."

The next day, Sharp said, "the golfer" reported to headquarters and, under questioning, admitted that he'd played 23 holes of golf that day, repeating the toughest holes, and stopping only when darkness was near.

The incident occurred in April, 1987. Today, Grzymala, 46, collects an annual disability pension of $44,857, tax-free, awarded by the state despite the testimony of Nassau police officers who monitored him. The story of Grzymala's injury, the police surveillance detail, the department's effort to block his pension, and Grzymala's victory is often told within the police department, officials said, as evidence of a flawed disability pension system in which medical testimony can overrule eyewitness evidence that an applicant is capable of more physical exertion than he admits.

Grzymala was aided in his quest for a disability pension by Carle Place attorney Richard Lerner, one of Long Island's expert police disability attorneys, and by Dr. Jacob Lehman of Patchogue, an orthopedist who frequently treats injured police.

Grzymala's pension gives him time to pursue the game he loves. Last year he had an official PGA handicap of 8.3, according to records viewed by Newsday. He shoots in the high 70s and low 80s, according to scores posted on the bulletin board at the Holbrook Country Club.

But Grzymala, in an interview, denied he even has a golf handicap and said he plays golf only occasionally. "I don't really have a handicap . . . I am handicapped," Grzymala said.

Dr. William Mallon, a former pro golfer and now an orthopedic surgeon in Durham, N.C., said in an interview: "It's hard to imagine how he can play golf to an eight handicap and have a hundred percent disability on his back." Mallon, until recently a professor at Duke University, added, "If you look at the things that stress a back, golf is usually listed as the hobby that does it the most. I think he'd have trouble playing."

Another expert in back problems, Dr. Vert Mooney, an orthopedics professor at the University of California at San Diego, said, however, that "many people with back problems can play golf ... If it seems to aggravate pain, it's not a good thing to do."

Newsday watched Grzymala over two days last fall performing the duties of a course starter and ranger at the Holbrook Country Club, where he parks his 1992 Ford Explorer in a handicapped space.

Grzymala, however, denied he works at the course. "I have friends at the golf course who are working there as pros. I just go down there and chat with them and hit a few balls."

Grzymala's disability case began in August, 1986, when he said he injured his back after responding to an accident scene. Two cars had collided in Levittown and locked together.

Grzymala asked Donald Marx, one of the drivers, to move his car. Marx complied, and the other car, with no one in it, began rolling. Grzymala rushed to stop the rolling car and said he was thrown to the ground.

Marx disputed Grzymala's account, telling Newsday Grzymala merely opened the car door, got in and put his foot on the brake.

Grzymala's lawyer, Lerner, said that Grzymala had medical documentation of a back injury. His personal orthopedist, Dr. Lehman, concluded that Grzymala was disabled and would never again be able to work as a police officer.

Medical files obtained by Newsday show differing opinions. Medical tests indicated Grzymala had either a bulging disc or a small herniation in his back. An MRI in October, 1986, indicated a "diffusely herniated disc."

A year later, a lumbar myelogram found no herniation, and another physician treating him, Dr. Russell Windsor, concluded that the herniation was minor and didn't appear "to agree with the amount of pain that he is having."

"He persists in complaining of lower lumbosacral spine discomfort," Windsor wrote in finding Grzymala disabled. "The recommendation was made to consider a complete disability from the police force and pursue this further since if he cannot handle a sedentary sitting job because of persistent back pain, then he certainly is not able to return to the active field of his job."

Grzymala missed months of work after the accident. In the spring of 1987, Sharp contacted Grzymala while he was home on sick leave, asking him to testify against a man Grzymala had arrested in 1985 in connection with a family disturbance. The case had suffered repeated delays, partly because of Grzymala's injury.

With the county unable to produce Grzymala, the prosecution plea-bargained and the man agreed to plead guilty to disorderly conduct and was fined $75.

The police department offered its videotape of Grzymala to the state retirement system, but the state medical board found him disabled, and in 1990, after a series of delays, the pension was awarded. Deputy State Comptroller John McManaman defended the decision. "The county's doctors, our doctor and his doctors said this guy could not perform full duties," said McManaman. "There was full agreement."

© 1994, Newsday

By Brian Donovan and Stephanie Saul

The batter swings and rips the ball across the infield toward shortstop John Ryan.

Ryan starts running at the crack of the bat, seemingly unaware of the brace on his leg. He bends and scoops up the ball on the run. He twists and fires it to first base, narrowly beating out the runner.

It's a hot Sunday morning in Shoreham last summer, and Ryan, now 45, is sweaty and grinning, reveling in the sport he loves - softball.

Ryan is also a retired Suffolk police lieutenant who collects a $66,460-a-year tax-free disability pension.

John Ryan, hustling shortstop, embodies the paradox found in many police disability cases - disabled on paper but capable of vigorous physical activity in reality.

For some disabled Long Island police, life after retirement can be full. The state never re-examines their injuries, places no limits on their activities, and - after they reach the 20th anniversary of their hiring - allows them to draw unlimited outside income without losing any of their pension money. Unlike New York, many states prohibit outside work by disability pensioners, require periodic medical exams, or force disability recipients back to work if they're found engaged in vigorous activities. Under state pension rules, a disabling injury can be as minor as damage to a trigger finger - the kind of problem that ended the police career of former Nassau officer Benson Huggard in the early 1980s.

Deemed disabled, Huggard nevertheless continued to enjoy his physically demanding hobby - marathon swimming - while collecting his disability pension. His story is oft-cited as an example of the pension system's idiosyncrasies, a system that pays police with trigger-finger impairments the same as paraplegics.

Like Huggard, many mildly injured police draw their tax-free pension checks while leading robust lives.

When disabled police are able to perform physical jobs or enjoy rigorous hobbies, it raises questions, resentments, suspicions and cynical jokes among other officers who feel that such cases reflect badly on the profession and jeopardize pensions for police who have serious disabling injuries.

The photograph of one Nassau police officer, Robert Snead, hung on the bulletin board of the First Precinct in Baldwin until it turned yellow. Snead's colleagues didn't know whether to be angry or amused. Snead had said that, due to a job-related injury, he couldn't run or lift heavy objects, according to state pension system documents. In 1985, six months after he obtained his $21,667 disability pension, Snead's picture appeared next to a Newsday story about a Deer Park charity helping the poor at Christmas. The picture showed Snead and another man lifting a washing machine.

Some officers who claim on-the-job injuries experience almost miraculous recoveries after getting their disability pensions, according to police officials.

Local police folklore is sprinkled liberally with tales of "cane-breakers" who hobble about until their disability pensions are granted, then make great shows of breaking their canes and dramatically casting them aside. PBA publications carry advertisements from disabled officers offering fence installation, transmission repair and carpentry.

Sgt. Vincent Ward, who formerly ran the Suffolk Police Department's medical evalution unit, recalls police officers who seemed chronically injured before retirement, then miraculously improved after they got their pensions.

"I'd see them after they got their retirement. And I would say to them, 'You're walking pretty good, you're walking pretty briskly,' " Ward relates.

"'Yeah,' he says, 'it's amazing. After I retired the stress was relieved from the job,' he says. 'I feel a hell of a lot better.'"

Because the state pension system never re-examines police to determine if they've gotten better, some who were once disabled recover but continue to collect their pensions. Unlike many other states, New York does not have the ability to revoke a pension if police are found to have recovered.

The law governing the pension system gives the comptroller's office the right to conduct periodic physical exams on disability recipients, but it provides no mechanism for revoking their pensions. Therefore, the pension system rarely conducts such examinations because it would be pointless, officials say.

"The present law is flawed," said Deputy State Comptroller John Mauhs. "We do not have the ability to terminate a disability pension and to put the person back on the public payroll in those cases." Mauhs said the comptroller's office is considering requesting legislation to correct the law.

By his own estimation, Mike Yarocki, 46, is one such recovered officer. Yarocki, a former Nassau police officer judged by the state pension system to be disabled with a shoulder injury in 1987, installs acoustical tiles and does carpentry work while drawing his $33,359-a-year tax-free pension. Also, Yarocki acknowledged in a recent interview with Newsday, his shoulder has recovered to the point that he could return to the full duties of a Nassau police officer.

Moreover, state pension law does not limit outside earnings for disability retirees after the 20th anniversary of their hiring as police. A 1987 change in state law eliminated an earnings cap that limited disability pensioners' total income, including their pension, to the next highest pay grade above their pre-retirement salary. Additional earnings had to be forfeited to the pension system. The cap still applies to disabled police officers who have not reached the 20th anniversary of their hiring.

Mauhs, of the retirement system, said he regards removal of that cap a mistake. The pension system noted an increase in disability applications after the removal of the earnings cap and attributed it, in part, to the change in the law. It was opposed by several executive agencies, including the State Insurance Department, whose superintendent, James P. Corcoran, wrote in 1987: "If, as a disabled member, he is permitted to have unlimited earnings after reaching the 20th year, he is financially better off than the one who remained on the job." Despite such opposition, the cap was removed after heavy lobbying by police organizations.

Defending the removal of the earnings cap, police groups have said the previous language prohibited disabled police officers from earning a living even in office jobs.

"What if the individual was able to go to law school and become a lawyer, or an accountant or become some other type of businessman where physical incapacity would not be a detriment to their earning capabilities?" asked Peter Reilly, president of the Police Conference of New York and Paul Carozza, president of the Metropolitan Police Conference, in a 1987 letter to the governor's office supporting removal of the caps.

The legislation removing the caps was adopted in June, 1987, by a 53-0 vote of the Senate and a 144-1 vote of the Assembly. The only dissenting vote was cast by Assemb. Robert D'Andrea (R-Saratoga Springs).

"I don't see why these people should be allowed to make more money when all these years they couldn't work because they were too sick or hurt or whatever it is," D'Andrea said recently, explaining his opposition to the legislation.

Gov. Mario Cuomo's office declined to explain in detail the governor's reason for signing the legislation, except to say that he weighs the pros and cons of all bills before deciding whether to approve them.

In examining the disability pension system, Newsday reviewed the lives of dozens of disability retirees. Many are truly retired and have moved to Florida or the Carolinas, where they lead sedentary lives. Others, however, augment their disability income with jobs ranging from bartending to carpentry, private investigating to lifeguarding, or pursue vigorous hobbies. Still others decide that retirement from the police department is not such a sweet deal. Ryan, for instance, asked to return to his job after his disability pension was granted, but the Suffolk department turned him down.

In addition to Ryan, Huggard and Yarocki:

Neil Maiorino, a former Nassau police sergeant, is director of public safety for the tiny village of Head of the Harbor. He has a civilian title, but in effect he's chief of police. And Maiorino, who reported that he injured his back when he slipped on paper towels, acknowledges that he sometimes performs police duties, including patrolling roads in the residential enclave tucked alongside Stony Brook harbor. In addition to his $31,600 annual salary, Maiorino, 48, collects a state disability pension of $43,998 a year, tax-free.

Paul Fedorys, a disabled Nassau County police officer, is a jailer for the Knox County, Tenn., sheriff's department. The job requires the "physical ability to handle unruly prisoners," according to Lt. Keith Lyon, who is in charge of personnel. In addition to his $17,100 jailer salary, Fedorys, 48, receives $32,541 a year, tax-free, from the New York state pension system.

Vincent Bovino, a former Nassau police officer who now operates a mail-order business in California selling a drink designed to thwart drug tests, works out regularly with exercise machines, despite a neck injury that the retirement system deemed disabling. Bovino, 42, who resigned from the police department while under investigation for selling steroid drugs for bodybuilding, collects $24,683 a year, tax-free, in state pension payments.

In its series this week on the police disability system, Newsday has reported on such cases as former Nassau police officer Raymond Newbold, who receives a disability pension for a bad knee, but works as a lifeguard at Jones Beach, a job that requires running, jumping and swimming; Albert Wieda, a hang-glider pilot whom the state has ruled disabled from Suffolk County police work with a groin injury; and Robert Grzymala, a former Nassau police officer ruled disabled with a bad back who, nevertheless, maintains a golf handicap of 8.3.

As conceived by the Legislature, the police pension system was an effort to compensate police injured by the special, and often dangerous, duties of their jobs, such as catching violent criminals, subduing unruly prisoners and chasing cars down the highway.

The law envisioned a police officer being injured, then retiring on a disability pension.

In practice, the system frequently doesn't work that way. Often, police are injured on the job, then work their regular assignments for years until nearly time for their service retirements. In reviewing records, Newsday found several cases in which as a police officer's retirement date approached, the old injury flared up and the police officer sought medical treatment for it, reopening a workers' compensation claim and creating a paper trail. Nassau police Lt. James Ahearn was in two on-duty car accidents in 1976. In subsequent years he complained sporadically of lower back pain. But in 1990, as his retirement date approached, he complained that his back pain was much worse. He received a tax-free disability pension in 1991 of $78,348 a year, which was boosted by overtime. Similarly, Suffolk Police Officer John T. Curley was awarded a disability retirement in 1986 based on back and neck injuries sustained in 1966, 1967, and 1971 in three on-duty accidents. He testified at a retirement hearing that from 1971 to 1980, when he stopped working due to back pain, he was on full duty as a police officer and did not lose any extended periods of time. Curley was initially turned down for disability retirement in 1982, but his application was approved in 1986 after doctors said his condition had deteriorated. Curley, now 58, retired in 1986 and collects a tax-free pension of $32,064 a year.

When ready to retire, the officer may put in an application for a service retirement and, at the same time, for a disability retirement, hoping to receive the more lucrative disability benefit. The time elapsed between the actual injury and the disability award can be as long as 15 years, in some cases reviewed by Newsday.

In other cases, police are injured, then work light duty - in clerical or telephone-answering jobs - for many years until it's time for retirement. At that point, the officer may also apply for both types of pensions, which can be significantly increased with extra overtime during the last year.

Suffolk Lt. Frank Coppola Jr., for instance, said he injured his back in 1988, a week after he was fined 15 days' pay in a departmental probe of falsified pistol-range records. His tax-free $59,055 disability pension, awarded in 1990, was boosted by the $14,070 of overtime he worked in his last year. Nassau Police Officer Robert Rich said he slipped on applesauce in 1976 at a tractor-trailer accident on the Long Island Expressway. Over the years, he missed hundreds of days of work, and he was awarded a disability pension 15 years later. In his final year on the job, Rich boosted his salary by $16,454 worth of overtime, increasing his pension to $60,471 a year, tax-free. In many cases, the overtime is worked by officers who are on light-duty assignments in office jobs.

Over the years, the pension system has vacillated on how it treats police who've been on light-duty status. Police normally are evaluated for disability based on the rigorous standard of whether they can perform the full duties of a police officer. Using that standard, a trigger-finger injury such as the one suffered by Benson Huggard qualifies a police officer for disability. But if a police officer has been performing clerical duties in a "light duty" role, pension officials at times have wavered on whether the officer's disability should be measured on the same basis, or on whether he or she can function in an administrative job.

In the mid-1980s, the state pension system began a cycle of rejecting disability retirement applications for officers on light duty on the grounds that they were able to perform the duties assigned them, not whether they were fit to perform the full duties for which they had been hired. As a result, the Nassau PBA began advising its injured officers to stay home and not accept light-duty assignments.

After negotiations between the PBA and the police department, Commissioner Samuel Rozzi in 1989 agreed to provide "general- duty" job descriptions to the state, even for light-duty officers, indicating that they could be required to perform full duties, according to PBA President Gary DelaRaba. Similarly, general-duty statements have been supplied by other police departments, including Suffolk County.

As a result of that agreement, officers went back to work on light duty and a number of disability pensions that had been previously denied were then awarded.

Faced with an increase in disability applications from Long Island over the next few years, some of them from officers working in light-duty jobs, the pension system once again reviewed its position on pension applications from light-duty officers. In October, 1992, Mauhs sent a letter to all employers: "It is not appropriate to pay disability pensions to persons who can perform their assigned duties," the state deputy comptroller said, urging that police departments provide job descriptions to the state of the "actual duties performed" when disability applicants had been assigned light-duty jobs for two or more years or for reasons other than disability.

"When you're using full duties, it's conceivable that even a fairly mild disability could end up getting approval," said Assistant Deputy Comptroller John McManaman. "That's one reasons we have modified the use of the full-duty standard."

In recent months, the pension system has begun turning down disability applications on that basis. Police organizations, however, cry foul.

They argue that the current interpretation of the disability law by the pension system encourages police officers to remain at home after they are injured, rather than coming in to work to perform light duty because to do so would preclude them from ever getting a disability pension for that injury. They also argue that the pension system should not change the rules midcourse.

"There has to be consistency," said Nassau PBA lobbyist Kenneth Long. "Once you set up some rules, they should stay the same, whether there's an increase or decrease in pensions being given out. The same criteria has to be used for everybody that applies." Long said that the Metropolitan Police Conference, an umbrella group of downstate police organizations, is currently negotiating with the retirement system over the issue.

The comptroller's office has recently drafted legislation to deal with police who are found to have recovered from their disabilities, officials said in a recent interview. The proposed bill would give the retirement system the right to convert a police officer's pension from a disability pension to a regular service retirement, reducing the benefit and making it subject to federal income taxes. It would also give the pensioner the chance to go back on the public payroll rather than accept the reduced pension.

NEIL MAIORINO:

ABLE TO PATROL

One officer who worked light duty after his injury was Neil Maiorino, currently safety director for the village of Head of the Harbor. Maiorino received his on-the-job injury in 1985 when he said he slipped on paper towels on the floor of the female detention unit at Nassau police headquarters, according to the accident report.

"It was a freak accident, no big gun battle or anything like that," Maiorino says.

At the time, he was assigned to the records bureau and his duties included monitoring in the headquarters holding cells.

His doctor, Stephen Zolan, diagnosed Maiorino with a herniated disc as a result of the injury.

But two diagnostic tests performed before his retirement indicated a mildly bulging disc, with "no evidence for herniation," frequently a more serious problem. Despite that, the state approved his disability retirement in 1987. He collects $43,998 a year in pension payments, tax-free.

By 1990, through an exercise regimen, he had started feeling much better, Maiorino said. "I really started coming around," Maiorino said in an interview. "I was working out. I bought a home system with exercise and weights."

In January, 1991, Maiorino was hired by the Head of the Harbor police department. He acknowledges doing patrols "once or twice a week" as part of the job. "But it's discretionary," he says. "If I feel a twinge, I just get out of the car." Maiorino says his back flares up once or twice a year.

PAUL FEDORYS:

THE JAIL GUARD

Another Nassau officer retired on disability, Paul Fedorys, also found law enforcement employment - as a Knoxville corrections officer.

Fedorys, who refused to talk to Newsday, also reported an on-the-job accident. According to a report, Fedorys said he fell while gassing up his patrol car at the Eighth Precinct in Levittown in October, 1983.

The gas pump failed to turn off, spilling gas on the ground, he said. Fedorys said that as he tried to place the nozzle back into the gas pump, his right foot slipped on the gas and he injured his right knee.

The state pension system initially turned down his request for disability retirement, arguing that the fall was not an accident as defined by the disability statute. A hearing officer upheld that decision, but later the retirement system reversed itself, granting Fedorys a disability pension in 1986, based on court decisions ruling that falls should be considered job-related accidents for the purposes of disability pensions.

Fedorys, who receives $32,541 a year in tax-free disability payments, moved from Massapequa to Maynardville, Tenn., near Knoxville. He is a corrections officer at the Knox County jail.

Lyon, the personnel officer, said he was not aware that Fedorys was on a disability pension. "I'm not allowed to ask such things," said Lyon, citing the recently enacted Americans with Disabilities Act as the reason. "It's between them [New York state] and him."

VINCENT BOVINO:

THE BODYBUILDER

Vincent Bovino served 12 years on the Nassau County police force before running afoul of its internal affairs unit. Then an avid bodybuilder, Bovino was the target of an internal investigation and ultimately arrested on misdemeanor steroid sales charges.

Under a plea arrangement, he pleaded guilty in 1987 to a reduced charge of attempted possession of a syringe. He was placed on conditional discharge, paid the department $672 in restitution and agreed to leave the department.

Bovino had injured his neck in 1986 wrestling with a drunken prisoner who became violent. As a result of the neck injury, Bovino says he suffers a weakness in his grip. The state retirement system agreed that his injuries were disabling and awarded him a $24,682 annual tax-free pension.

Bovino, who has moved to Marina del Rey, Calif., still works out about four times a week, and says he is able to use machines for workouts with the aid of straps.

"I still get numbness in my hands," Bovino said in a recent interview. "It [the numbness] has diminished over a period of time."

After his retirement, Bovino was arrested once again on federal steroids charges in California. Officials said he was a minor operative in a ring that brought steroids into the United States from Mexico. Bovino pleaded guilty to a misdemeanor and was placed on probation.

He currently markets a product called Defend, a mix that, if ingested before a urinalysis, purportedly masks the presence of drugs.

Bovino said the product is designed not to aid drug users but to protect innocent workers and athletes from false-positive urinalyses.

MIKE YAROCKI:

THE CARPENTER

Another former Nassau police officer, Mike Yarocki, was diagnosed with a sprained right shoulder in May, 1986, after he said he tripped and hurt his shoulder going down a steel fire escape at an investigation site.

For more than a year after his injury, Yarocki complained of shoulder pain, and his physician, Dr. Stephen Zolan, diagnosed Yarocki as disabled. Two arthrograms of the shoulder were negative, according to records reviewed by Newsday. McManaman said the determination that Yarocki was disabled was based on the agreement by two orthopedists who treated Yarocki, an orthopedist who examined him on behalf of the state, and a police department doctor.

When first contacted by Newsday in February, Yarocki denied he was working. "My wife is working now and I'm just hanging around the house," he said. "...I can assure you I have no jobs on the side here...

Newsday reporters, however, had several months earlier observed and photographed Yarocki working at a construction site in Sayville where he was renovating the interior of a restaurant. He holds contractor licenses in both Nassau and Suffolk Counties and has also advertised his home renovation business in the PBA newsletter.

When confronted with this information, Yarocki acknowledged that he does such work. "Can I do construction on the side? Yeah, I guess I can, you know," Yarocki said. "If I sometimes overdo it, will my arm bother me more than normal? Sure it will. Do I have access to aspirin and Ben-Gay? Sure. Do I have to notify everybody in the world that I'm on it [disability retirement]? No . . . And I can't tell you how bad my arm hurts or how bad my back hurts. Did I do them myself? I guess I did. Was it my own stupidity climbing down the stairs? Did I fall down the stairs? Sure. I put in my papers and that was it."

Asked if he could now work the full duties of a police officer, Yarocki replied: "Oh, yeah, sure." But he also said: "I received my disability as legally as possible, and I don't have any regrets." He said he continues to have shoulder pain.

Yarocki collects $33,359 a year in tax-free pension payments, according to records provided by the pension system.

JOHN RYAN:

THE PLAYER

John Ryan, the disabled shortstop, retired at age 43. As a Suffolk policeman, he suffered several on-the-job accidents. He was injured in April, 1990, when a floor board slipped in an attic in Wyandanch where he was staked out watching drug activity. His right leg went through Sheetrock.

"My knee always bothered me after that," Ryan said.

In July, 1990, Ryan was involved in a brawl at a police retirement party. Internal affairs charges for "conduct unbecoming an officer" were filed against him in October, 1990.

In July, 1991, Ryan suffered another injury. "I was in the Fifth Precinct and somebody had poured Betadine soap, you know, that anti-bacterial soap, all over the floor, and I slipped on the Betadine soap and went down and pulled something in my chest - I thought I was having a heart attack, I was getting chest pains and my knee was killing me," Ryan said.

Then, in October, 1991, Ryan was chasing a suspect and ran into heavy brush, striking a tree and injuring his head, shoulder, back and neck, according to an accident report. "Upon returning to his vehicle he fell into a hole, injuring his left knee," the report said. Ryan was granted his accidental disability retirement in May, 1992, before the administrative charges against him could be adjudicated.

Ryan's disability pension, according to pension officials, was awarded in connection with the fall on Betadine scrub in the station house restroom, which injured his right knee. "Our orthopedist found the knee deranged and he was unable to perform duty," said McManaman.

Despite his injury, Ryan managed to increase his pension by working $13,688 worth of overtime, or 409 hours, during his final year, according to police department records. The overtime helped raise his pension to $66,460 a year, tax-free.

Ryan, when first contacted by Newsday, denied that he has played ball since his retirement. "I can hardly walk," he said.

Later, after being told that Newsday had photographed him playing softball, he admitted playing in his softball league. "I don't consider that playing ball. That's just a recreational thing I do with my family on a Sunday," he said.

He also coaches junior varsity baseball at Shoreham-Wading River High School.

But life isn't always so sweet after retirement. Within months after retiring, he called the police department and requested to return to work, according to Deputy Suffolk Police Commissioner Robert Kearon. The system allows for officers to return to duty up to one year after a disability retirement. But Kearon said the request was denied, partly because a series of promotions had already been made as a result of Ryan's departure.

If Ryan lives a normal 72-year lifespan, he'll collect about $600,000 more than he would have with a regular police pension, according to Newsday calculations.

© 1994, Newsday

By Brian Donovan and Stephanie Saul

Erma Myers didn't take the money and run - she galloped off to the rodeo.

During a competition in 1992, the former California Highway Patrol officer, who had been found disabled, raced horses around barrels and wrestled calves to the ground as undercover surveillance cameras captured her on tape, prosecutors charged.

Three years earlier, when she obtained her disability pension, she had said her back and knees were injured so badly from an on-the-job car accident that she could no longer run, bend, do yardwork, hang up clothes or even take them out of the dryer.

But some of her colleagues were suspicious, put her under surveillance and videotaped her during her rodeo competition. Myers even helped organize the events for a police rodeo association, officials said.

The Sacramento County district attorney's office brought felony charges of grand theft and filing a false claim last year against the 36-year-old former officer. She has pleaded innocent, and the charges are pending. If Myers is convicted in September, when her case is set for trial, she could go to jail and lose her pension, according to Sgt. Steve Lerwill, one of the investigators on her case.

The California Highway Patrol has set up a special unit to crack down on disability fraud. Since the unit was formed two years ago, six officers have been arrested. Just last week investigators arrested an officer retired on disability for a back injury and allegedly working for a furniture-moving company. Other arrests include a patrolman who is charged with faking his own accident to collect disability pay. Officials say the unit has saved taxpayers $2 million.

In New York, however, senior state pension officials say they can't recall a single case anywhere in the state in which a police officer has been prosecuted for pension fraud. Disability retirees are never re-examined to see if they're still disabled. And even convicted drug-dealer officers can collect their tax-free disability pensions while serving time in prison.

The problem in New York, some officials say, isn't that there are no proposals for change. A number of other big states have adopted a variety of measures that officials say have helped to curb some of the pension abuses that Newsday reported last week. In New Jersey and Texas, for example, the state can re-examine retired officers periodically to see if they're still disabled - something that's not done in New York.

The problem, as some critics see it, is that the political establishment in Albany - Democrats and Republicans alike - have been unwilling to clash with the well-organized and well-financed police-union lobby, which pushes for more generous police benefits while helping to finance politicians' campaigns and delivering coveted endorsements.

"From the mood of elected officials all over the state, they are pro-police because of the type of job they do," said state Sen. Caesar Trunzo, the Brentwood Republican who heads the civil service and pensions committee. "It's quite obvious that everything seems to be working very well for the police unions - there's no doubt of that. I don't see a change happening."

"They have been sacred cows for many years," said Suffolk Comptroller Joseph Caputo. "And they continue to be, so they have lots of clout."

Even severe critics of the police disability system say that most cases are legitimate and that honest officers deserve a safety net. But police union leaders say they fear that attempts to crack down on the minority who abuse the system could wind up hurting legitimate applicants, too.

Nassau Police Benevolent Association President Gary DelaRaba agreed that there are "appearances of some abuses" in the police disability pension system, but advised proceeding cautiously with changes. "What you've got to do, I think, is place some safeguards to make sure the police are protected as well as the public."

State Comptroller H. Carl McCall said last week that he is planning to hire a consultant to evaluate the disability pension system and make recommendations to the Legislature next session. "I think that there are problems across the board in this system. And therefore it's going to take a very thorough examination and we'll have to come up with a thoughtful series of recommendations," McCall said. "I recognize that this is a serious problem and we're going to try to address it as expeditiously and as thoroughly as possible."

Many officials have been reluctant to discuss the disability pension system. State Senate Majority Leader Ralph Marino, a Republican from Muttontown, for instance, refused an interview with Newsday on the subject last week, but issued a statement from his office saying, "Police officers who are legitimately disabled in the line of duty deserve adequate compensation. And I believe our laws were designed to do just that. We have a system in place that is supposed to investigate, evaluate and approve claims so that individuals won't bilk the pension system or otherwise collect disability fraudulently. If there is evidence of widespread abuse, perhaps that system needs to be overhauled."

In dozens of interviews with law enforcement and county officials, and officials from other states, several suggestions emerged for making New York's police pension system less vulnerable to abuse:

Periodic medical re-examinations of disability retirees. In Massachusetts, authorities put a Marlborough police officer back to work last year, after 11 years on disability, when a medical review found he'd recovered. The officer had moved to Florida, but now he's back in uniform. On Long Island, Newsday found officers on disability pensions who could fly a hang glider, play ball and work as a Jones Beach lifeguard, a carpenter, a jail guard and even continue doing police work for a village department. The state comptroller's office has the authority to do such exams, but officials say it's a waste of time without the authority to revoke pensions. The state comptroller's office has drafted legislation to give them that authority. It would take an act of the Legislature.

More vigorous investigation of possible fraud. The retirement system has no fraud investigators and only 15 examiners to screen about 4,500 disability applications a year from police and civilian employees. Newsday found several cases in which senior Nassau and Suffolk police officials felt officers had filed fraudulent pension applications, but could not get state officials to consider their evidence. Fraud investigators could be hired through a budget increase approved by the governor and Legislature, or the governor could use State Police.

Limits on outside earnings by disability pensioners. Pension officials say the removal of an earnings cap on many disability recipients in 1987 helped cause an increase in the number of disability pension applications. In Florida, disability pensioners are barred from any outside work, and the state has rescinded the pensions of recipients found working. Connecticut revoked a retired officer's pension and ordered him to make restitution after he was found working as a policeman in Florida. Limiting earnings would have to be done by the Legislature, which voted overwhelmingly for the 1987 measure, and by the governor, who signed it into law.

Reductions in pension payments if a police officer gets Social Security disability benefits. A New York state advisory commission on pension matters recommended in 1986 that the combination of pension and Social Security benefits not exceed pre-retirement income. Retired Nassau Police Officer Angelo Amendolare, for example, collects his tax-free disability pension of $44,325 a year and said he also gets about $1,000 a month in Social Security disability checks. As a result, Amendolare's disability income exceeds his pre-retirement salary of $48,353. The Legislature and governor never acted on the commission's recommendation.

Pension forfeiture for criminal conduct. Police, most of whom do not contribute any of their own money toward their pensions, would lose their pensions if convicted of a crime involving malfeasance in office.

The state comptroller has introduced such bills, but they are opposed by the police lobby and other public employee unions. They die in legislative committees. Pennsylvania, Florida, Georgia, Illinois and Massachusetts all have statutes on the books mandating that officers forfeit their pensions if convicted of certain kinds of crimes. Newsday found cases in which the system approved disability pensions without knowing that the officers had filed their disability claims while under criminal or departmental investigation. Some of those officers were later convicted in connection with drugs or burglary.

A disability payment system based on the degree of injury. Police officials question why police officers should receive the same pension for a trigger-finger injury, such as the one suffered by Nassau Police Officer Benson Huggard, as for total paralysis. Huggard continued his strenuous hobby of marathon swimming after getting his disability pension in 1983 for an injury that weakened his trigger finger. A sliding-scale system of payments, such as that used in the workers' compensation system, would have to be approved by the Legislature and governor.

DelaRaba said last week that he opposed most of the recommendations for tighter controls. Suffolk Police Benevolent Association President Tom Tohill was not available for comment last week and has previously refused to talk to Newsday about police disability.

In its series on police disability pensions last week, Newsday reported that hundreds of Nassau and Suffolk police officers have taken advantage of loose guidelines and weak oversight to win lucrative tax-free windfalls at public expense, retiring on medical disability at a rate that's often among the highest in the country. In some recent years about a third of Long Island police who retire get the disability pensions; many are from slip-and-fall claims that do not involve criminals. About one out of three cases are believed by senior police officials to be fraudulent or highly questionable, but the state has failed to act on allegations of fraud. In addition, the report has detailed how some officers under investigation have managed to use disability pensions as a form of golden parachute. One officer, convicted of cocaine sales, collected his $32,304-a-year tax-free pension while serving time in Attica.

With the public ever fearful of crime, experts say Long Island police unions have won contracts that make them among the highest-paid police officers in the nation.

On Long Island, police unions often provide key endorsements for politicians running for office. They also help finance campaigns. Nassau's PBA last year bought banner advertisements on buses endorsing the re-election of County Executive Thomas Gulotta. In Suffolk, police unions used a computer list of hundreds of current and former law-enforcement officers to help get out the vote for candidates they favored.

"They have tremendous clout," said Michael Mahoney, former Suffolk PBA president. "Right now, crime is the number one political issue. Not only do the police unions have clout with their own negotiations, but also in terms of state and local law on crime."

"Unions in New York are stronger and are able to bargain for more generous packages," said Michael Bucci, a U.S. Bureau of Labor Statistics expert on police pensions. "New York also has a union tradition, where states like California and Florida don't have that tradition."

In Albany, where both the Nassau and Suffolk PBAs have representatives, their success is due partly to the fact that they're not professional lobbyists but active police officers.

Their lobbying organization, called the Metropolitan Police Conference of New York State, represents 35,000 downstate police officers. Kenneth Long, chairman of the group's legislative committee, was a Nassau County patrol officer until 1988, when he became the PBA's representative in Albany. Under the unions' contracts, the counties pay the salaries of officers who work much of the year as lobbyists.

"It's hard to argue against something in law enforcement," said Long, discussing the police lobby's success in Albany. "We move more bills as a group than other lobbying organizations because we're not doing it for personal gain, per se."

While public pensions generally have been shrinking in the past decade, police in New York have actually won some enhanced benefits.

In 1987, for example, police won the right to unlimited outside earnings for disability pensioners after they reach the 20th anniversary of their hiring date.

A state retirement system report in 1991 noted that the number of disability retirements jumped after the earnings cap removal.

Given the police lobby's ability to win expanding benefits in lean times, it becomes apparent that any retraction in the pension system would be politically difficult.

The last effort at major legislative revisions in the disability system, aimed at both police and firefighters and civilian state employees, came in 1986, when the Permanent Commission on Public Employee Pension and Retirement Systems recommended sweeping changes to the Legislature and the governor after an analysis by the Manhattan actuarial firm of Milliman & Robertson, Inc.

The commission was formed in the 1970s after a New York City bridge-tenders strike over pension benefits, and it remained unpopular throughout its existence.

"The pension commissioner was not liked by the unions," said Robert Helm, an Albany lawyer and former aide to Gov. Nelson Rockefeller who served as the pension commission counsel for 15 years. "They thought it was a management tool. It became a political thing for a number of years."

The 1986 report contained controversial recommendations. Among them were that disability pensioners undergo periodic medical exams to requalify for pension benefits; that pension benefits be reduced if the recipients also got Social Security disability payments; and that, after the first two years of disability, recipients be re-evaluated based on whether they were capable of performing any job, not just the job they had held.

None of the recommendations was adopted, Helm said, partly because of union opposition and partly because no one pushed for them. The commission was subsequently abolished.

Some officials recommend that the pension amount be based on degree of disability. Under the current system, police can collect the same amount from the state for a minor finger injury as they do for a crippling leg injury.

"We have had police officers getting disability retirements because their trigger finger has been impaired," said Sgt. Vincent Ward, former head of the Suffolk Police Department's medical evaluation unit. "Yet that person would get the same disability retirement benefit as someone who lost both his arms and both his legs in an accident." Ward's counterpart in Nassau, Det. Sgt. Robert Kiesel, suggests also that pension benefits be reduced depending on whether there was an element of negligence by the injured police officer.

In one Suffolk case, Capt. Harold McCormick reported that he stepped backward and fell over a parking lot stanchion, injuring his leg and back, while measuring a building for painting. Other police officers have filed injury claims for falling out of chairs, tripping over electrical cords, and slipping on stairs, snow and gasoline. "You fall out of your chair because you put your feet up on the desk and leaned back. That's your negligence. But you still get three-quarters," Kiesel said. "If a member steps on his shoelace and falls down, he should not be entitled to the same money as someone who gets shot and is disabled for the rest of his life."

Another proposal, pension forfeiture for criminal conduct, was introduced from 1988 through 1992 by Trunzo on behalf of the comptroller's office, but the bill was not seriously considered by the Legislature.

The proposal would allow forfeiture of a pension if a police officer or other public employee is convicted of malfeasance in office.

"It's not a burning issue up here," said an aide to Trunzo, explaining why the legislation died in his committee year after year. One problem, some officials suggest, is that the bill would also apply to state legislators, as well as other public officials convicted of criminal conduct.

Police lobbying groups oppose the idea. "If I spend 18 or 19 years serving the public and commit one indiscretion, I shouldn't be penalized for a life's work," Long said.

Robert Kearon, deputy Suffolk police commissioner, said the review of disability applicants should also include information that might bear on an applicant's credibility, such as disciplinary record, pending departmental investigations and actual prosecutions.

"Is internal affairs looking at him closely? Is his job in jeopardy? It's certainly not smoking-gun proof that perhaps there's a degree of fraud involved in the claim, but I would certainly be interested in knowing what's happening," Kearon said.

The pension commission also recommended medical re-evaluations of disability pension recipients. While state law allows medical reviews, Mauhs and other officials complain that the law has no teeth because it gives them no way of revoking a pension.

The comptroller's office has recently drafted legislation to deal with police who are found to have recovered from their disabilities, officials said in a recent interview. The proposed bill would give the retirement system the right to convert a police officer's pension to a regular service retirement, reducing the benefit and making it subject to federal income taxes. It would also give the pensioner the chance to go back on the public payroll rather than accept the reduced pension.

And experts agree that's what undermines New York's disability system most - its failure to weed out fraud and false claims. Pension officials could not identify one case of suspected police pension fraud that they had forwarded to local district attorneys. Police officials, meanwhile, say that even if fraud were suspected, a finding of disability by the state pension system would undermine any effort to prosecute officers for pension fraud at the local level. Other big states, such as California, actively prosecute fraud and have instituted a number of programs to curb abuses. In Florida, state officials use computers to compare the disability rolls to statewide data on employment. If disability retirees are found to be working, they are re-evaluated, and some pensions have been revoked, officials said. In New Jersey, if the state medical board decides that a retiree's disability might clear up over time, they are required to undergo annual physical exams by state doctors until age 50.

Texas state troopers who retire on disability are re-examined annually for the first five years and every three years after that until age 60. If it's found they are no longer disabled, their pensions can be revoked. In Massachusetts, disability retirees have to report annually on their income and employment situation, and a statewide oversight agency can bring proceedings to order them back to work or reduce their pensions.

None of these controls exists in New York. Long Island officials say they've been frustrated and baffled by the state's lack of response when presented with evidence suggesting fraud.

Nassau Deputy Insp. John Sharp, former head of the department's medical administration unit, said: "The thing that irked me about the system was that we would go out and absolutely document the fact that the injury was bogus, that they had no basis in reality, this is just a guy pulling a scam to get three-quarters, this is not a guy who's really injured.

"And then I would send a letter to Albany ... 'I have a videotape, tell me what to do with it.' They never even responded to say, 'Thanks, but no thanks.'"

One of the rare cases in which local authorities prosecuted police pension fraud took place in Suffolk during the late 1980s as an offshoot of another investigation. The target was retired Police Officer Albert Iannuzzi, who pleaded guilty to 10 misdemeanors in satisfaction of a 62-count indictment and had to file a statement in court acknowledging that he is no longer disabled and could work.

State officials, however, said there's nothing they can do to stop his pension payments. His prosecution didn't result from any vigilance by the pension system.

Comptroller McCall said his office does not have the money to increase fraud investigations. "We do not have the resources to do that. I don't have a room full of investigators sitting around," he said.

Sharp said changes are needed: "We're asking cops to do things that the public doesn't ask of anybody else, so we need to protect them," he said. "There are cops who'll never be right again because they did what we told them to do.

"On the other hand, we have guys who start scheming from their first day on the job how to get a disability pension. The sacrifice of good cops is diminished by these people who are abusing the system. It's unfortunate that the system is so shoddily managed that the phony cases get through. We need the system, but we need to fix it."

Key Players in Police Disability Pensions

• H. Carl McCall
  State Comptroller.
  The comptroller's office administers the entire state pension system, including collecting and investing funds, processing applications and awarding disability pensions.
  Based: Albany
• State Sen. Ralph J. Marino
  Senate Majority Leader.
  The Republican leader is a key figure in determining whether legislation will or will not be passed by the State Senate.
  Based: Albany and Oyster Bay
• Assemb. Sheldon Silver
  The Democratic leader is a key figure in determining what legislation will or will not be passed by the State Assembly.
  Based: Albany and Manhattan
• State Sen. Caesar Trunzo
  Chair, Committtee on Civil Service and Pensions.
  Heads the Senate committee that reviews all proposed changes in the pension disability laws.
  Based: Albany and Hauppauge
• Assemb. Eric N. Vitaliano
  Chair, Committee on Governmental Employees.
  Heads the Assembly committee that reviews all proposed changes in the pension disability laws.
  Based: Albany and Staten Island
• Gov. Mario M. Cuomo
  Can propose legislation, sign it into law or veto it.
  Based: Albany
• Gary DelaRaba
  President, Nassau County PBA.
  His union lobbies the legislature and helps pay members' legal and medical bills.
  Based: Mineola
• Thomas Tohill
  President, Suffolk County PBA.
  His union lobbies the legislature and helps pay members' legal and medical bills.
  Based: Bohemia
• Kenneth Long
  Chairman, Legislative Committee.
  Metropolitan Police Conference. He is the chief lobbyist for this umbrella group of downstate police organizations.
  Based: Albany

© 1994, Newsday

By Brian Donovan and Stephanie Saul

In some states, police officers collecting disability pensions have been re-examined and put back to work when authorities developed evidence that their disability claims were suspicious.

But in New York, even a retired officer's admission in court documents that he's no longer disabled isn't enough to prod the system into taking another look at his case.

That's the situation with former Suffolk Police Officer Albert Iannuzzi, who's collected more than $130,000 in state disability pension payments since 1981. The pension pays him $10,108 a year.

When a Suffolk grand jury indicted Iannuzzi, his wife, daughter, mother, mother-in-law and best friend in a multi-faceted fraud case in 1989, then-Suffolk District Attorney Patrick Henry said: "We're talking about people who would steal the pennies off a dead man's eyes."

Part of the fraud, the grand jury charged, was a falling-out-of-cars epidemic that broke out in Iannuzzi's circle in 1977, winning him both a state disability pension and Social Security disability benefits.

Iannuzzi's friend was Thomas Brazier, a federal Bureau of Alcohol, Tobacco and Firearms agent. During a six-month period, Iannuzzi said he fell out of Brazier's car; Brazier said he fell out of a car driven by Iannuzzi's wife, Deborah; and Deborah Iannuzzi said she fell out of a car driven by her husband.

The three falls, prosecutors charged, were a scheme to collect disability and insurance payments. Iannuzzi said he was disabled by head injuries.

In a plea-bargain settlement in 1991, Iannuzzi, then 47, and Brazier got three years' probation after pleading guilty to 10 misdemeanors. Charges against the women were dismissed. As part of the deal, Iannuzzi filed a document in court acknowledging that he was "no longer disabled" and was "able to work." Prosecutors insisted he sign the document because they expected the state and federal governments to cut off his disability benefits.

But state pension officials say they can't cut off his pension, which they send to his retirement address in Florida, because Iannuzzi didn't plead guilty to the specific counts that pertained to his state pension in the 62-count indictment.

The amount and status of Iannuzzi's Social Security benefits couldn't be learned, but Suffolk prosecutors don't believe the Social Security Administration has done anything.

They've been saving surveillance videotapes they made of Iannuzzi and relatives visiting a Long Island Social Security office in 1988 and, law enforcement sources said, telling officials he was too disabled to drive or care for himself. But Social Security has never come to get the tapes, which show Iannuzzi driving away in his Cadillac.

© 1994, Newsday