July 07, 2015

Claiming and denying benefits available pursuant to General Municipal Law §207-c

Claiming and denying benefits available pursuant to General Municipal Law §207-c
2015 NY Slip Op 05476, Appellate Division, Second Department

This decision by the Appellate Division illustrates some of the procedural elements involved in claiming and providing benefits available to law enforcement personnel injured in the performance of his or her official duties.

The genesis of the case was the Town’s adopting the findings and recommendations of a hearing officer that a Town Police Officer [Officer] was [1] not physically able to perform his regular police duties and [2] that his continuing left knee complaints were not related to a certain line-of-duty incident. The Town adopted the hearing officer’s findings and terminated the Officer’s General Municipal Law §207-c, benefits. The Town also declined to re-credit Officers leave credits that used to remain on the payroll while absent from work under color of his having a work-connected disability.

Ultimately the Appellate Division found that Officer had been injured in the line of duty and received benefits pursuant to General Municipal Law §207-c. However the court also found that an orthopedic surgeon appointed by the Town to examine Officer subsequently concluded that Officer had a preexisting "condition" involving his left knee that was the proximate cause of his present knee condition, and that Officer was fit for full duty.

The Appellate Division’s decision states that when the Town's Chief of Police directed Officer to report for full duty he protested and the Chief then directed him to return to work in a "transitional, restricted-duty" capacity. Officer’s treating orthopedic surgeon submitted a letter disputing the Town’s medical examiner’s conclusion that Officer was fit to return to full duty but opined that Officer was fit for a light duty assignment that would accommodate his physical limitations.

When directed to report for restricted duty, Officer requested a hearing in order to challenge the Town discontinuing his General Municipal Law §207-c benefits as was his right under the controlling the collective bargaining agreement between the Town and the Officer's employee organization. Officer then returned to work in a restricted-duty capacity. The Town denied Officer’s request for a hearing.

The Officer’s employee organization then demanded that the issue of Officer’s right to a hearing be submitted to arbitration. The arbitrator ruled that Officer did have a right to a hearing concerning the termination of his General Municipal Law §207-c benefits. Upon receipt of the arbitrator's award Officer “advised his superior officer of his position that he was not required to report for work in any capacity until the conclusion of the hearing.”

Officer’s superior, in turn, advised Officer that he was required to continue his "light duty" assignment in accordance with provisions set out in General Municipal Law §207-c and that his failure to report for duty would be  considered being absent from duty without proper authorization. Officer elected to absent himself from work and used his accumulated leave credits [1] in order to be continue on the payroll in lieu of General Municipal Law §207-c payments to cover his absence from work pending the hearing and [2] to avoid disciplinary action.

The hearing officer appointed to determine if Officer was physically able to perform his regular duties and whether his continuing disability, if any, was related to the line-of-duty incident found that Officer:

[1] Was not physically able to perform his regular duties and

[2] His inability to perform his regular duties was not the result of any work-related incident.

The Town Board adopted the hearing officer's findings of fact and recommendations and terminated the Officer’s General Municipal Law §207-c benefits. The Town also determined that Officer was not entitled to be re-credited with any of the leave credits he used during his absence from work after being told to report for duty by his superior.

Officer next commenced a proceeding pursuant to CPLR Article 78 to review the Town’s determinations. The Supreme Court granted that part of Officer’s petition providing for the annulment of the Town’s determination not to re-credit Officer’s leave time he used from January 17, 2012, to November 20, 2012 and the Town was directed to re-credit him with that leave time. The court then transferred the proceeding to Appellate Division.

Having the full record before it, the Appellate Division, “in the interest of judicial economy,” decided to consider the case “on the merits.”

The court said:

1. A disabled officer receiving General Municipal Law §207-c benefits is entitled to a due process hearing before those benefits may be terminated when the officer submits medical evidence contesting the finding of a municipality's appointed physician that the officer is fit for duty.

2. Once such evidence has been submitted, an "order to report for duty may not be enforced, or benefits terminated,” pending adjudication of the individual's claim in an administrative hearing, which hearing decision itself is subject to review under CPLR Article 78.

3. Where the municipality's physician is of the opinion that the officer is able "to perform specified types of light police duty," payment of the full amount of salary or wages may be discontinued should the officer refuse to perform such light police duty if an appropriate assignment "is available and offered to [the officer]" and enables him or her "to continue to be entitled to his [or her] regular salary or wages."

4. If an officer who refuses to return to light duty fails to provide medical proof that he or she is unable to do so, the municipality may discontinue his or her §207-c benefits without a hearing.

Here, said the Appellate Division, there is no dispute that Officer [a] was able to perform a light-duty assignment; [b] received and followed an order to return to work and perform a restricted duty assignment, for which he received his full salary; [c] refused an offer to continue performing this light-duty assignment, although he remained able to so; [d] the granting of a General Municipal Law §207-c hearing did not excuse Officer from performing his light-duty assignment; and [e] received an unequivocal order to return to his light-duty assignment, which her refused to obey, electing instead to use his accumulated leave time in order to remain on the Town's payroll.

The Appellate Division concluded that when Officer refused to return to his light-duty assignment, the Town was entitled to discontinue his §207-c benefits without a hearing. Accordingly, the Town's determination not to re-credit the accumulated leave time he used to remain on the payroll was not arbitrary and capricious and must be sustained.

The court also commented that the hearing officer's determination that Officer’s disability was not causally related to the line-of-duty incident was supported by substantial evidence. The hearing officer, said the Appellate Division, was free to credit the testimony and reports of the Town's medical expert over the conflicting opinion of the Officer's treating orthopedic surgeon.

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


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