October 10, 2018

Challenging a hearing officer's decision that concluded that an individual absent from work pursuant to §207-c of the General Municipal Law can perform certain light duty


Challenging a hearing officer's decision that concluded that an individual absent from work pursuant to §207-c of the General Municipal Law can perform certain light duty
Mankowski v Nassau County, 2018 NY Slip Op 02470, Appellate Division, Second Department

Stanley Mankowski, a correction officer, was injured by inmate and was absent from work due to the line-of-duty injury and continued to receive his salary and other benefits pursuant to General Municipal Law §207-c.* Treated by an orthopedic surgeon, in a police surgeon designated by the appointing authority to conduct examinations assessing Mankowski's capability of returning to work, found that Mankowski could return to work " in a restricted/light-duty capacity" such as in an administrative role with no supervision of inmates.

Mankowski's union filed a contract grievance and commenced a proceeding in the Supreme Court, seeking a court order to enjoin the enforcement of the report of the police surgeon dated January 20, 2015, contending that "under the applicable collective bargaining agreement, it was the responsibility of the hearing officer, not a police surgeon, to determine the restrictions under which the petitioner was to return to work."

Supreme Court vacated the hearing officer's determination on the ground that the hearing officer exceeded or imperfectly executed her power such that a final and definite award was not made, and remitted the matter to the hearing officer to make the required determination. In a determination on remittal dated March 26, 2015, the hearing officer adopted the factual findings of the police surgeon and specified the the types of duties to which Mankowski could be assigned.

Again Mankowski challenged the hearing officer's ruling, filing a CPLR Article 78 petition seeking a judicial review the hearing officer's determinations dated January 20, 2015, and March 26, 2015, respectively, on the ground, among others, that they were not supported by substantial evidence. Supreme Court disagreed and determining that the hearing officer's determinations could be reviewed pursuant to both CPLR Articles 75 and 78, found that both of the hearing officer's determinations were supported by substantial evidence and denied Mankowski's petition. Mankowski appealed.

The Appellate Division, noting that as Mankowski's petition raises a question of whether the hearing officer's determinations were supported by substantial evidence, the Supreme Court should have transferred the proceeding to Appellate Division. However, as the "complete record is now before" the Appellate Division, the court treated the matter as one which has been transferred to it and reviewed the hearing officer's determinations de novo.

The Appellate Division said that a municipality is entitled to require an injured officer to submit to a medical examination and, if the physician determines that the officer is able to perform specified types of light duty, the municipality may discontinue payment of the officer's full salary or wages if the officer refuses to return to work when a light-duty post is available and offered to the officer. In the event the individual challenges the medical finding and submits evidence from his or her treating physician to support a claim of "continued total disability," however, the termination of benefits payable under General Municipal Law § 207-c and an order to report for duty may not be enforced until an administrative hearing has been held

In this instance the correction officer sought such an administrative hearing. As the hearing officer's determination following that hearing was subject to review pursuant to CPLR Article 78, "[j]udicial review of a determination of an administrative agency made after a hearing required by law is limited to consideration of whether the determination is supported by substantial evidence."

Noting that substantial evidence is defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact," the Appellate Division found that the hearing officer's determinations dated January 20, 2015, and March 26, 2015, respectively, finding that Mankowski was able to return to work on restricted duty, were supported by substantial evidence.

Accordingly, the Appellate Division ruled that the hearing officer's determinations must be confirmed, denied Mankowski's petition dismissed the proceeding on the merits; and awarded one bill of costs to the employer.

* General Municipal Law §207-c requires certain municipalities to continue to pay law enforcement personnel who sustain a disability in the course of their employment their salary and certain other benefits while on "leave for disability." General Municipal Law §207-a provides for the payment of similar benefits to firefighters injured in the performance of their duties.

The decision is posted on the Internet at:

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