December 16, 2010

Section 207-c administrative hearings

Section 207-c administrative hearings
Doolittle v Broome County, 276 AD2d 863

The Doolittle case involves a relatively unique issue: a hearing officer conducting a Section 207-c hearing* deciding the duration of a workplace stress situation that the employee claimed was the cause of her work-connected disability.

Rita Doolittle, a Broome County correction officer, claimed that she had suffered a disability as a result of work-related stress. She applied for workers’ compensation benefits. One of the issues addressed by the Appellate Division, Third Department, in this round of litigation concerned the determination of the period for which Doolittle was eligible for disability benefits.

According to the decision, the Section 207-c hearing officer had determined that Doolittle was entitled to Section 207-c benefits only for a limited period of time - about eight months in all.

The hearing officer had concluded that any psychological injury suffered by [Doolittle] as a result of workplace stress was limited in time from March 1989 to November 1989 in view of the Doolittle’s expert witness’ testimony that she had subsequently suffered an adjustment disorder arising from the stress of the lawsuit and [the County’s] ... internal investigation ... for approximately six months. Doolittle appealed the hearing officer’s determination.

A comprehensive review of the history of this litigation is set out in an earlier appeal, Matter of Doolittle, 220 AD2d 864. Briefly, in 1988 Doolittle and two female co-workers filed complaints alleging gender discrimination and sexual harassment in the workplace. Broome County commenced an internal investigation of the allegations. In March 1989 Doolittle had a nervous breakdown while on the job and claimed that she was unable to return to work due to this workplace injury.

Doolittle filed an application for workers’ compensation benefits. Broome’s policy was to consider an application for workers’ compensation benefits as a claim or request for both workers’ compensation benefits and for disability benefits under Section 207-c of the General Municipal Law. It, however, controverted [opposed] both applications for benefits on the grounds that Doolittle had not suffered any injury on the job.

Doolittle was terminated due to her absence from work for a period of more than one year, presumably pursuant to Section 73 of the Civil Service Law since the County had controverted her claims.**

Following Broome County’s risk manager rejecting Doolittle’s application for Section 207-c benefits, a Section 207-c hearing was scheduled in accordance with the County’s Local Law 15.

In the course of her federal action, Doolittle claimed that she had experienced another nervous breakdown while she was testifying. A mistrial was declared after the court concluded that she was unwilling or unable to continue. Eventually the federal action was dismissed for failure to prosecute.

Doolittle also alleged that she was unable to testify at the Section 207-c hearing and asked the hearing officer to consider her deposition testimony instead. She also refused to comply with the Hearing Officer’s directive that she submit to an examination by Broome County’s forensic psychiatrist as to her ability to participate effectively in the hearing.

Ultimately the hearing officer determined that Doolittle had sustained a compensable injury on March 8, 1989 and that she was disabled as a result of that injury from that date through November 30, 1989. Accordingly, ruled the hearing officer, Doolittle was entitled to benefits from the County for that discrete time-period only.

After holding that Doolittle’s appeal from the hearing officer’s Section 209-c determination was time-barred, having been filed more than four months after the hearing officer had issued the decision, the Appellate Division elected to note that “if this matter was properly before us, we would find the determination that [Doolittle] was entitled to benefits for a discrete period of eight months to be supported by sufficient evidence in the record.” The court’s rationale:

In view of the nine years between petitioner’s last day on the job in March 1989 and the commencement of the hearing in 1998, it was reasonable for the Hearing Officer to determine the duration of any mental illness or condition that could be deemed attributable to the working conditions in the County Jail in 1989.

In addition, the court also observed that the Hearing Officer could decline to consider otherwise relevant evidence offered by Doolittle because of her refusal to undergo an examination or to provide requested documents.

Significantly, the Appellate Division said that it was not irrational for the Hearing Officer to draw a strong inference against Doolittle as the result of her failure to call her psychologist to provide psychological justification for her failure to participate in the hearing, especially in view of her refusal to cooperate with efforts to inquire into her claim that she was medically unfit to testify.

Unlike a criminal action where the accused had a constitutional right not to testify or be called as a witness, in an administrative action such as a disciplinary hearing or a Section 207-c hearing, the hearing officer may consider the fact that the individual did not testify on his or her own behalf and, moreover, may conclude that such testimony, which would be under oath, would not be helpful to his or her case.

Further, said the court, Doolittle was not prejudiced by the Hearing Officer’s reference to workers’ compensation case law because the Workers’ Compensation Law features a more lenient and more inclusive standard of covered activity than is intended to be covered and compensated under Section 207-c, citing Balcerak v County of Nassau, 94 NY2d 253.

* For information about PELP’s handbook on General Municipal Law§§ 207-a and 207-c go to: http://section207.blogspot.com/

** An employee who suffers a non-permanent work-related injury or disease is to be placed on leave without pay pursuant to Section 71 of the Civil Service Law while an individual unable to work as a result of a non-occupational injury or disease is entitled to leave without pay pursuant to Section 72 of the Civil Service Law. An employee on Section 72 leave may be terminated pursuant to Section 73 of the Civil Service Law after being absent for twelve consecutive months or longer. A person absent on Section 71 leave may be terminated after being absent for a cumulative period of one year.

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