A police officer [Claimant] responded to a call that resulted in the arrest of three individuals. Several weeks later Claimant was interviewed concerning that incident as part of an Internal Affairs investigation. The following day Claimant was suspended from his position and informed that he would receive a written notification of charges.
Claimant thereafter sought mental health treatment stemming from the incident and his resulting suspension. Ultimately Claimant filed a workers' compensation claim alleging his stress, anxiety and post-traumatic stress disorder was caused by an allegedly unlawful disciplinary action.
A Workers' Compensation Law Judge determined that the claim was not compensable as Claimant's psychological injury was "a direct consequence of a lawful personnel decision involving a disciplinary action."*
Claimant then submitted an administrative appeal in which he contended "the disciplinary action was unlawful." The Workers' Compensation Board [Board] affirmed the decision of the Workers' Compensation Law Judge.
Claimant next initiated a judicial appeal in which he contended that the Board's decision was not supported by substantial evidence because his suspension did not constitute a disciplinary action, or another personnel action, within the meaning of §2(7) of the Workers' Compensation Law.
The Appellate Division sustained the Board's determination, noting that the record indicated that the Claimant argued, both at the administrative hearing and at the subsequent administrative review that followed, that his suspension was a disciplinary action.
The court explained that to the extent that Claimant "now advances a contrary argument for the first time on appeal," that claim "is unpreserved for [its] review."
* See https://publicpersonnellaw.blogspot.com/2011/09/depression-resulting-from-being-served.html
Click HERE to access the Appellate Division's ruling.