Wednesday, July 23, 2014

Although an administrator may have certain powers to administer a statute, he or she lacks authority to supplement or amend duly enacted legislation


Although an administrator may have certain powers to administer a statute, he or she lacks authority to supplement or amend duly enacted legislation
Hazan v WTC Volunteer Fund, 2014 NY Slip Op 04103, Appellate Division, Third Department

A former emergency medical technician [EMT] went to World Trade Center site to offer assistance in the rescue and recovery efforts on September 11, 2001. He served as a volunteer at a triage center that was being established at the Chelsea Piers and sorting supplies and setting up a treatment area. The following day, EMT went to ground zero, using his emergency medical technician card and badge to gain access to the site and attempted to search for survivors. The EMT, however, was not registered or affiliated with any volunteer organization or agency during the course of these two days, and he did not aid in the rescue or recovery operations after September 12, 2001.

In March 2010, EMT registered his participation as a volunteer in the World Trade Center rescue, recovery and/or cleanup operations with the Workers' Compensation Board and filed this claim for workers' compensation benefits for injuries allegedly sustained as a result of his exposure to dust and toxins at the sites at which he served as a volunteer pursuant to Workers' Compensation Law Article 8-A. A Workers' Compensation Law Judge [WCLJ] found that EMT had sustained a compensable injury and awarded him certain benefits. The World Trade Center Volunteer Fund, however, sought review of the WCLJ's decision, contending that EMT t failed to meet the definition of "volunteer" because he did not provide proof that he was acting under the direction and control of a volunteer agency.

The Workers’ Compensation Appeal reversed the WCLJ's decision, finding that EMT did not meet the definition of "first response emergency services personnel" as set forth in the final revised Order of the Chair No. 967 issued by the Board's chair in 2006 and, thus he did not qualify as a volunteer. EMT appealed.

The Appellate Division overturned the Board’s determination in view of the legislative history of Article 8-A, several bills were circulated in the Legislature that defined a "volunteer rescue worker" as one who "rendered service under the direction and control of an authorized rescue entity." Significantly, said the court, r, such language is not included in Workers' Compensation Law Article 8-A, and "[t]he deletion of this explicit language from the version of [Workers' Compensation Law Article 8-A]; that finally passed is persuasive evidence that the Legislature rejected" the more restrictive definition of volunteer that originally was proposed.

Further, the Appellate Division said that to the extent that the Board has consistently relied upon the final revised Order of the Chair No. 9 in denying benefits to volunteers who were not affiliated with an authorized rescue entity or volunteer association, “we need note only that while Workers' Compensation Law §141 vests the Board's chair with certain powers to administer the provisions of the Workers' Compensation Law, it does not vest him or her with the authority to supplement or amend duly enacted legislation.”

Citing Russomanno v Leon Decorating Co., whatever the net effect of such orders may be, they "cannot overrule the statute itself," neither the statutory language nor the legislative history supports the Board's requirement that an individual be affiliated with an authorized rescue entity or volunteer agency in order to qualify as a volunteer and, hence, be eligible for the coverage afforded under the statute.

Accordingly, the Appellate Division held that the Board's decision denying EMTs application for benefits upon this particular ground cannot stand, although EMT must still satisfy the time, location and activity elements of Workers' Compensation Law Article 8-A in order to be entitled to benefits. The court then remitted the matter to the Board “for consideration of those issues and, more to the point, the sufficiency of claimant's proof thereon.”


Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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