Determining the amount of the General Municipal Law §207-a (2) supplement payable to a firefighter upon his or her retirement for disability because of a work related injury or disease

 
Determining the amount of the General Municipal Law §207-a (2) supplement payable to a firefighter upon his or her retirement for disability because of  a work related injury or disease
Fennelly v Eastchester Fire Dist., 2017 NY Slip Op 06533, Appellate Division, Second Department

General Municipal Law §207-a(1), in pertinent part, provides that a paid firefighter of an organized fire company or fire department of a city of less than one million population, or town, village or fire district, "who is injured in the performance of his duties or who is taken sick as a result of the performance of his duties so as to necessitate medical or other lawful remedial treatment, shall be paid by the municipality or fire district by which he is employed the full amount of his regular salary or wages until his disability arising therefrom has ceased." In effect, the firefighter is placed on sick leave at full pay until he or she returns to full duty or "light duty" with his or her employer, retires, dies, is found ineligible to continue to receive such compensation or retires.

General Municipal Law §207-a (2) provides, in pertinent part, for discontinuing the payment of the full amount of regular salary or wages with respect to any firefighter continued on the payroll pursuant §207-a(1) who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his or her duties "in the event the firefighter is granted an accidental disability retirement allowance pursuant to section three hundred sixty-three of the retirement and social security law, a retirement for disability incurred in performance of duty allowance pursuant to section three hundred sixty-three-c of the retirement and social security law or similar accidental disability pension provided by the pension fund of which he is a member...."

§207-a(2), however, then mandates that the firefighter so retired "shall continue to receive from the municipality or fire district by which he [or she] is employed, until such time as he [or she] 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, the difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages."*

In this CPLR Article 78 action the Appellate Division was asked to review a determination by the Board of Fire Commissioners of the Eastchester Fire District [Eastchester] that reflected the findings and recommendations "of a hearing officer, made after a hearing," that the petitioner, Keith E. Fennelly, Eastchester's retired former fire chief, "was not entitled to supplemental wage increases pursuant to General Municipal Law §207-a(2) and that Eastchester was entitled to recoup 'overpayments' made to [Fennelly] since 2005."

The court held that [1] Fennelly was not entitled to the supplemental wage increases, i.e. payments reflecting "the difference between the amount received under such allowance or pension and the amount of his [or her] regular salary or wages"* but [2] Eastchester was not  entitled to recoup any "overpayments" it made to Fennelly since 2005. The court "otherwise dismissed" Fennelly's petition "on the merits."

The court explained that Eastchester's determination that Fennelly was not entitled to increases in the supplemental benefits he was paid pursuant to General Municipal Law §207-a(2) based upon the salary increases given to Eastchester's current fire chief was supported by substantial evidence. The evidence, said the court, "demonstrated that the salary paid to each fire chief is determined by the Board, and is based on the particular experience, education, and performance of the fire chief, as opposed to firefighters who receive salary increases pursuant to a collective bargaining agreement."

As to Eastchester recouping "past overpayments" from Fennelly, the Appellate Division, citing Matter of Masullo v City of Mount Vernon, 141 AD3d 95, said that "[t]here is no evidence that [Eastchester] had a process or application procedure in place at the time [Fennelly] was paid the section 207-a(2) benefits and, therefore, there can be no finding that the prior payments were improper so as to justify recoupment."

Note: NYPPL, after reviewing this decision, is of the opinion that although Fennelly may not be entitled to increases in the supplemental benefit  pursuant to General Municipal Law §207-a(2) in the amount of "the salary increases given to [Eastchester's] current fire chief," to the extent Fennelly's does not receive adjustments in the nature of a supplement to his retirement allowance or pension consistent with the reasons**and procedures described below, Eastchester is not in compliance with the mandates set out in §207-a(2) with respect to the payment of the "difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages:"

1. In Pease v Colucci, 59 A.D.2d 233, the court said that "Section 207-a of the General Municipal Law is a remedial statute enacted for the benefit of [firefighters] and should be liberally construed in their favor."

2. §207-a(1) provides that a firefighter suffering an injury or disease in the line of duty is to remain on the employer's payroll and receive "his [or her] compensation as long as he [or she] has not recovered from his [or her] injury," even if he or she remains unable to return to duty, in whole or in part, as a result of such injury or disease for the rest of his or her life. Such compensation must include any subsequent raises in salary given to those in the same grade or title held by the injured firefighter at the time of his or her injury.

3. In the event the firefighter retires, or is retired pursuant to an application filed on his or her behalf  by his or her employer as authorized by §207-a(2) and, as a result, is removed from the employer's payroll, §207-a(2) mandates that the retired firefighter's employer pay him or her the difference between the amount he or she receives as a retirement allowance or pension and the amount of his or her regular salary or wages he or she would have received had he or she remained on the employer's payroll and not retired. Such payments by the employer,  periodically adjusted to reflect any increases in salary or compensation paid to those in the same grade or title held by the injured firefighter at the time of his or her injury, are to be paid to the retired firefighter until he or she has attained the controlling mandatory age of retirement, dies or is found to be ineligible to receive his or her retirement allowance or pension.

In consideration of points [1], [2] and [3] above, and in view of Fennelly's particular situation with respect to the determination of the annual salary to be paid a fire chief upon his or her initial appointment by Eastchester following Fennelly's retirement for disability:

     [a] The amount of Fennelly's §207-a(2) mandated supplement to be paid by Eastchester initially should be determined based on the difference between his retirement allowance or pension and his annual salary immediately prior to the effective date of his retirement and any subsequent §207-a(2) payments reflecting the difference between the amounts received under such allowance or pension and the amount of his regular salary or wages should be determined so as to increase Eastchester's payments to supplement Fennelly's retirement allowance or pension that would provide

     [b] an equivalent to the percentage increase of any subsequent increase or increases in the annual salary paid to a successor incumbent fire chief following his or her initial appointment to the position based on Eastchester's representation that each such successor's annual salary at the time of his or her initial appointment "is based on the particular experience, education and performance of the appointee;" and

     [c] such supplement and adjustments to such supplements are to be paid by Eastchester to Fennelly until Fennelly attains the "mandatory age of retirement" set by the relevant provision of the Retirement and Social Security Law or his retirement allowance or pension ceases to be paid to him, whichever event first occurs.

* General Municipal Law §207-c(2), which applies to law enforcement personnel, tracks the provisions of §207-a(2) except that it does not provide for the employer's supplementing the individual's retirement allowance or pension in an amount equal to the "difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages."

** There are additional reasons and case law supporting NYPPL's views in this regard that have not been included in this "Note".

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_06533.htm

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Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html

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