May 29, 2018

Requiring a firefighter injured in the line of duty to accept a "light duty" assignment and where appropriate to undergo surgery


Requiring a firefighter injured in the line of duty to accept a "light duty" assignment and where appropriate to undergo surgery
Sestito v City of White Plains, 2018 NY Slip Op 03528, Appellate Division, Second Department

The Commissioner of Public Safety of the City of White Plains adopted the findings and recommendations of a hearing officer, made after a hearing, and terminated the Petitioner's benefits under General Municipal Law §207-a. The Appellate Division confirmed the Commissioner's determination and dismissed the Article 78 action "on the merits, with costs."

Petitioner in the action, a firefighter, alleged that he had been injured while performing his duties and applied for benefits pursuant to General Municipal Law §207-a. The Commissioner's medical examiner found that Petitioner was capable of returning to light duty and that there would be a "medium to moderate" chance that he would be able to resume full duty if he underwent spinal fusion surgery.

The City's Fire Chief sent Petitioner a letter ordering him to return to work to assume a light duty position, or risk losing his benefits. A second letter sent by the Fire Chief awarded the Petitioner General Municipal Law §207-a benefits for a designated period and directed Petitioner to schedule the "fusion surgery."

Petitioner did not return to work as directed and did not undergo surgery, choosing instead to proceed with a challenge of the return to work order.
A hearing was conducted and the hearing officer concluded that the Fire Chief's orders were "reasonable and rational," and that Petitioner's failure to comply with those orders was without justification. The Commissioner adopted the recommendations of the hearing officer.

In his appeal Petitioner argues that the Commissioner's determination is not supported by substantial evidence. The Appellate Division disagreed, explaining that "Substantial evidence means more than a mere scintilla of evidence and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides."

Finding that there was substantial evidence to support the Commissioner's determination that Petitioner was fit to return to light duty and that surgery was a reasonable and appropriate treatment the court ruled that as Petitioner failed to return to work for his light duty assignment, and did not undergo surgery, his GML §207-a benefits were properly terminated.

In Schenectady Police Benevolent Association v New York State Public Employment Relations Board, 85 N.Y.2d 480, the Court of Appeals ruled that General Municipal Law §207-c, which provided benefits to law enforcement personnel authorizes the appointing authority to (a) require such personnel injured in the line of duty to perform light duty when found medically qualified to do so and (b) under the appropriate circumstances, undergo surgery, where reasonable.

The key to requiring an individual to undergo surgery, said the court, is that §§207-a and 207-c both provide that its respective benefits may be withheld if the officer refuses to undergo surgery. The decision notes that the employer's physician "may attend any such injured or sick policeman, from time to time, for the purpose of providing medical, surgical or other treatment...."

The Court of Appeals observed that the §207-c further provides that anyone who refuses to accept "medical treatment or hospital care" waives the right to benefits under the section. A similar provision in §207-a applies where the injured employee is a firefighter.

The Sestito decision is posted on the Internet at:

The Schenectady decision is posted on the Internet at:

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