General Municipal Law §207-c Hearing Officer entitled to weigh conflicting medical opinions and determine which expert’s testimony to credit.
2015 NY Slip Op 03214, Appellate Division, Third Department
A correction officer [CO] at a county correctional facility sustained a concussion when he hit his head on a wall while attempting to restrain an inmate. Treated for symptoms attributed to a mild traumatic brain injury and post-concussive disorder, he began receiving benefits pursuant to General Municipal Law §207-c.*
Subsequently the County Sheriff [Sheriff] offered CO the opportunity to return to work on light duty status where he would be assigned to “a sitting job with no inmate contact and no lifting, pushing or pulling any objects in excess of two pounds.” CO refused to accept the light duty assignment and the matter was submitted to an administrative hearing in accordance with the relevant procedures set out in the collective bargaining agreement applicable to CO.
The Hearing Officer's recommendation: CO should be returned to light duty. The Sheriff adopted the Hearing Officer’s recommendation and ordered CO to report as assigned.** CO appealed the Sheriff’s decision.
The question before the Appellate Division: Was the Sheriff's determination supported by substantial evidence?
The Sheriff’s expert, a neuropsychologist, conducted an independent medical examination of CO that included a number of neuropsychological tests, had opined that CO could return to work, testifying that in his opinion”
1. CO had exerted "suboptimal effort" during the testing, and that he found nothing that would prohibit CO from returning to work based on cognitive and psychological issues; and
2. After a follow-up examination of CO, Sheriff’s expert again opined that CO could return to work.
In contrast, CO’s, also a neuropsychologist, testified that CO displayed deficits in visual and mental processing, planning, language comprehension, attention, concentration and memory and in her opinion CO “was not able to work in the proposed light duty position.”
The Appellate Division explained that while CO’s expert did not agree with the Sheriff’s expert, the Hearing Officer was entitled to weigh the conflicting medical opinions and determine which expert’s testimony to credit.
Although CO had argued that the Sheriff’s expert’s opinion was based on unreliable test results and should not have been credited, the Appellate Division said that the Sheriff’s expert did not indicate that the test results were unreliable, but that the test results showed that CO's claims were unreliable.
The court dismissed CO’s appeal, holding that where the appointing authority’s determination is supported by substantial evidence, as it was in this case, it will not be disturbed.
* §207-c of the General Municipal Law provides for the payment of salary, wages, medical and hospital expenses of police officers and other law enforcement personnel suffering injuries or illness incurred in the performance of duties.
** §207-c 3 of the General Municipal Law provides, in pertinent part that in the event the individual is not eligible for or is not granted such accidental disability retirement allowance or retirement for disability incurred in performance of duty allowance or similar accidental disability pension and, in the opinion of such health authorities or physician, is unable to perform his regular duties as a result of such injury or sickness but is able, in their opinion, “to perform specified types of light police duty, payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to such policeman if he shall refuse to perform such light police duty if the same is available and offered to him, provided, however, that such light duty shall be consistent with his [or her] status as a policeman...” [emphasis supplied].
The decision is posted on the Internet at:
Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html