Wednesday, June 01, 2016

Absent a statutory or negotiated administrative hearing procedure, an appointing authority may delegate decision-making authority to the hearing officer


Absent a statutory or negotiated administrative hearing procedure, an appointing authority may delegate decision-making authority to the hearing officer
McKay v Village of Endicott, 2016 NY Slip Op 04085, Appellate Division, Third Department

The Village of Endicott had been paying Firefighter Joseph W. McKay General Municipal Law §207-a(1)* benefits while he was unable to work after he had suffered an "on the job" injury to his lower back.

In March 2010, McKay underwent  surgery. The Village told McKay that because his "neck condition" was "not related to the work injury," his General Municipal Law §207-a benefits were "terminated." McKay appealed and ultimately the hearing officer appointed by the Village determined that McKay was entitled to GML §207-a(1) benefits because there was a causal relationship linking the lower back injury to the accident and no evidence that McKay’s lower back had improved to the point that, but for the intervening cervical spine injury, he would have been able to return to work as a firefighter.

While that hearing was pending, McKay retired and commenced receiving performance of duty disability retirement benefits and the Village discontinued McKay’s GML §207-a(1) benefits. In November 2011, at the Village's request, McKay applied for supplemental benefits authorized by GML §207-a(2).**

In March 2012, McKay was examined by an orthopedist retained by the Village. The orthopedist opined that McKay’s 2008 back injury "would not have prohibited [him] from performing his duties as a firefighter and EMT." In May 2012, the Village denied McKay's "application" for GML §207-a(2) benefits. McKay then commenced a CPLR Article 78 proceeding challenging the Village’s determination. Supreme Court “partially granted [McKay’s petition] finding that the Village could not terminate his General Municipal Law §207-a benefits without a hearing. The Appellate Division sustained the Supreme Court’s ruling.***

In August 2012, the Mayor of the Village wrote to the Hearing Officer to confirm his appointment "in the [GML] §207-a(2) appeal case." At the subsequent 2013 hearing to consider McKay's November 2011 application for §207-a(2) benefits, the parties testified and in February 2014, the Hearing Officer issued a decision in which he characterizing the "issue presented" to be whether McKay was entitled to General Municipal Law §207-a(2) benefits as a result of the April 2008 lower back injury.

Noting that he was obligated to "uphold" the Village's determination to deny the benefits as long as it was supported by substantial evidence, the Hearing Officer issued "findings" that McKay was entitled to General Municipal Law §207-a(2) benefits based on the "volume of medical evidence" that supported the conclusion that McKay  [1] was "permanently incapacitated from performing his duties, [2] that his disability [was] permanent, and [3] that his disability [was] causally related to the performance of his duties."

Specifically, the Hearing Officer "determin[ed] that [McKay's] workplace injury on April 8, 2008 [was] the cause of his permanent inability to work." The Mayor, however, rejected the Hearing Officer's awarding McKay GML §207-a(2) benefits, finding that substantial evidence supported the Village's May 2012 determination denying McKay with such benefits.

McKay then commenced a CPLR Article 78 proceeding seeking a court order annulling the Mayor's determination. Supreme Court determined that the Village was not bound by Hearing Officer's decision and then transferred the proceeding to the Appellate Division.

The Appellate Division said that core issue was whether the Hearing Officer's February 2014 decision was a final and binding determination, noting that "it has long been recognized that . . . General Municipal Law §207-a . . . [was] enacted for the benefit of firefighters . . . who sustain disabling injuries in the line of duty, [and] the statutory provisions are to be liberally construed."

However, said the court, the statute does not set out any administrative procedure for determining a firefighter's entitlement to benefits and a municipality may promulgate or negotiate such a procedure provided that it comports with administrative due process. Accordingly, said the Appellate Division, the initial question presented is what procedure, if any, did the Village promulgatge.

The Appellate Division observed that [1] there was no negotiated procedure in place nor [2] was any written policy that governed the termination of existing General Municipal Law §207-a benefits was introduced at the hearing. Rather, said the court, the record indicated that the Village “simply opted to appoint a hearing officer — first, in 2010 to decide [McKay’s] entitlement to General Municipal Law §207-a(1) benefits, and then, in 2012, to decide [McKay’s] entitlement to General Municipal Law §207-a (2) benefits.”

Considering the record, the Appellate Division concluded that Supreme Court's initial finding that the Village was not bound by the Hearing Officer's determination was in error. The court explained that contrary to the Village’s argument, without any statutory or negotiated prohibition or direction, the Village was authorized to delegate its decision-making authority to the Hearing Officer.

Further, said the court, that the Mayor did, in fact, appoint the Hearing Officer to make a final determination and not a recommendation "is apparent from the record before us." Neither the 2010 nor the 2012 appointment was in any way qualified so as to limit the respective Hearing Officers to an advisory role, i.e., to make and submit findings of fact and a recommendation to the appointing authority regarding the disposition of these matters.

Referring to its earlier decision in which it determined that the Village could not terminate benefits payable to McKay pursuant to GML §207-a(2) without a hearing, the court said that “Given this procedural due process protection,” it considered such a hearing to be a de novo assessment of whether McKay sustained a permanent disability as a result of the 2008 work incident.

The court then opined that the Hearing Officer's observation that he was required to uphold the Village's decision if that decision was supported by substantial evidence misstated the standard for, as a matter of due process, in this instance it was the Hearing Officer's charge to decide the permanency issue in the first instance based on a fully developed record. The Appellate Division said that the Hearing Officer did so, after assessing the credibility of the witnesses and weighing the testimony. Further, the hearing transcript before the Hearing Officer and the post-hearing submissions further confirmed that neither the Hearing Officer nor the parties considered the Hearing Officer to be serving in an advisory capacity.

As the Mayor elected to "unilaterally and abruptly" change the Hearing Officer's decision to a recommendation, rather than comply with the protocol outlined in the appointment letter, the Appellate Division concluded that the Mayor's February 2014 determinations must be annulled. 

The court then observed that “[i]f dissatisfied with the Hearing Officer's determination, the Village's remedy was to challenge that determination in a CPLR Article 78 proceeding.

* General Municipal Law §207-a(1) provides for the payment of full wages and medical expenses until a disability has ceased.

** General Municipal Law §207-a(2), in pertinent part, provides that [1] the payment of the firefighter’s full amount of regular salary or wages pursuant to §207-a(1) shall be  discontinued upon the firefighter receiving a retirement benefit for disability incurred in performance of duty pursuant to RSSL §363-c and [2]  the employer shall supplement such the disability retirement allowance by paying the firefighter the difference between the amount of such disability retirement allowance and the amount of his or her regular salary or wages, including longevity pay and negotiated salary increases, if any, until such time as the firefighter shall have attained the mandatory service retirement age applicable to him or her or shall have attained the age or performed the period of service specified by applicable law for the termination of his or her service.

*** McKay v Village of Endicott, 113 AD3d 989, Motion for leave to appeal denied, 23 NY3d 1015.

The decision is posted on the Internet at:

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The Disability Benefits E-book – 2016 Edition: This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on:

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