Resolving conflicting medical evidence submitted connection with a Workers’ Compensation Law claim is within the exclusive province of the Workers’ Compensation Board

Resolving conflicting medical evidence submitted in connection with a Workers’ Compensation Law claim is within the exclusive province of the Workers’ Compensation Board

Granville v Town of Hamburg; 2016 NY Slip Op 01373, Appellate Division, Third Department

The Town of Hamburg had employed Patrick Granville as a laborer and light equipment operator from 2003 to 2012. In May 2013, Granville filed for workers' compensation benefits claiming that he had sustained an occupational hearing loss due to exposure to loud occupational noise as a result of his operating such equipment such as heavy-duty sit-down lawn mowers, weed whackers, heavy-equipment tractors, backhoes, zambonis and air jacks.

The Town, a self-insured employer for the purposes of Workers’ Compensation, and its third-party administrator [collectively “the Town”] controverted the claim for benefits filed by Granville. The Workers' Compensation Law Judge [WCLJ] who conducted the hearing concluded that Granville had suffered a causally-related binaural loss of hearing. The Workers' Compensation Board affirmed the WCLJ’s findings.

The Town, conceding that Granville had suffered a hearing loss, appealed the Board’s decision, contending that the record as a whole:

[1] did not establish that Granville was exposed to injurious noise during the course of his employment by the Town; and 

[2] did not establish that Granville’s hearing loss was causally related to his employment.

The Appellate Division rejected the Town’s argument, explaining that Granville had satisfied his burden of establishing, by competent medical evidence, that a causal connection existed between his hearing loss and his employment.

At the workers’ compensation hearing Granville had testified that he had operated heavy and light machinery "at least ninety percent of the time" during a typical workweek, that he had no loud hobbies or activities outside of work and that, prior to his work with the employer, he had worked in the banking industry. He also testified that he was required to undergo a hearing test in 2004, shortly after commencing employment with the Town, and that the results of this test revealed that he had "no effects of hearing loss.* In addition, Granville submitted a report and medical opinion of his treating otolaryngologist, Dr. Sayeed Nabi, who found that Granville's hearing loss was causally related to his employment.**

In contrast, the otolaryngologist who examined Granville on behalf of the Town opined that Granville's hearing loss was neither consistent with injurious noise exposure nor causally related to his employment’

Sustaining the Board’s decision in favor of Granville, the Appellate Division said “The Board found the opinion of [Dr.] Nabi to be more credible and, according appropriate deference to that assessment, substantial evidence supports the determination that [Granville] suffered a causally-related binaural loss of hearing,” explaining that the resolution of conflicting medical opinions, particularly with regard to the issue of causation, is within the exclusive province of the Workers’ Compensation Board.

* The Appellate Division noted that the Town “failed to produce the records of this hearing test.”

** The court said that "[W]here medical proof is relied upon to demonstrate the existence of a causal relationship, it must signify a probability of the underlying cause that is supported by a rational basis and not be based upon a general expression of possibility"

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01373.htm

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The Disability Benefits E-book: - This 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: http://booklocker.com/3916.html

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Determining when the statute of limitations to file a civil rights action commencesn

Determining when the statute of limitations to file a civil rights action commences

Azor v City of New York, 2016 NY Slip Op 01440, Appellate Division, First Department

Jean Azor alleged that his civil rights were violated in the course of a disciplinary hearing. Azor the filed an action claim a violation of 42 USC 1983.

The Appellate Division ruled that his action was barred by the three-year statute of limitations as his time to commence the §1983 action began to accrue on the date of the disciplinary hearing determination was delivered.

The decision is posted on the Internet at:

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http://www.nycourts.gov/reporter/3dseries/2016/2016_01440.htm

Negligence in complying with the Open Meetings Law may not be sufficient to vacated decisions made at a meeting subject to its provisions

Negligence in complying with the Open Meetings Law may not be sufficient to vacated decisions made at a meeting subject to its provisions

Cutler v Town of Mamakating, 2016 NY Slip Op 01543, Appellate Division, Third Department

The Town of Mamakatingabolished its position of Parks Maintenance Supervisor.

The then incumbent of the position, Oliver Cutler, challenged the Town’s action. Cutler contended that the Town had “had illegally and in bad faith abolished his position.” Cutler also alleged that the Town violated the Open Meetings Law, Public Officers Law Article 7, when it voted to abolish the Parks Maintenance Supervisor position at a closed executive session and was unrecorded.

Supreme Court dismissed Cutler’s “combined proceeding pursuant to CPLR Article 78 and action for declaratory judgment” to vacate the Town’s action abolishing his position which resulted in his being terminated from employment.

Cutler appealed the Supreme Court’s action but the Appellate Division affirmed the lower court’s rulings. Citing §80 of the Civil Service Law, the court ruled that a public employer may, in the absence of bad faith, collusion or fraud, abolish positions for purposes of economy or efficiency.

Here the record included affidavits of the Town Supervisor and a member of the Town Board indicating that because its “parks maintenance department consisted of only [Cutler] and one part-time laborer, it could achieve greater economy and efficiency by abolishing the supervisory position in favor of hiring additional laborers.” The Town also said that Cutler’s managerial duties were “shifted” to the Town Supervisor and that this reorganization and the employment of two full-time and one part-time laborer provided an overall “cost savings.”

Thus, said the court, the burden was then shifted to Cutler to demonstrate that his position was eliminated in bad faith or as a subterfuge to circumvent his rights under the Civil Service Law. The Appellate Division said Cutler failed to meet his burden, submitting only “conclusory and unsupported assertions” which failed to refute the Town Board's showing that its actions were part of “a good faith effort to reorganize a municipal department for the purposes of reducing costs and increasing efficiency.”

The court explained that the mere reassignment of duties, in and of itself, does not constitute proof of bad faith nor was there any indication in the record of any personal or political animosities that would suggest some deceitful purpose of ousting and replacing Cutler.

Addressing Cutler’s argument in the alternative, that the closed executive session in which the unrecorded vote to abolish his position was taken constituted a violation of the Open Meetings Law, the Appellate Division held that “Supreme Court had good cause to void the Town Board's action.” Although a discussion of the abolishment of Cutler's specific position for reasons of economy and efficiency was a proper subject of an executive session, the court said it agreed with Cutler that the Town Board violated the Open Meetings Law by inadequately describing the purpose for entering into the executive session as, simply, "personnel issues."

The Appellate Division also agreed with Cutler “that it was improper for the Town Board to vote on its decision without recording the vote in the executive session minutes, even though it did not "appropriate public moneys."

Notwithstanding its agreement with Cutler concerning these two “procedural defects,” the court decided that Cutler failed to show the requisite "good cause" for declaring the Town Board's action to be void stating that the record does not suggest that the [Town Board's] failure to comply with the precise requirements of the Open Meetings Law was anything more than mere negligence." Citing Roberts v Town Board of Carmel, 207 AD2d 404; Leave to appeal denied, 84 NY2d 811, the Appellate Division concluded that “mere negligence” does not constitute good cause for invalidating the Town Board's otherwise permissible action.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01543.htm

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions involving layoff and related matters. For more information click on http://booklocker.com/5216.html

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A law enforcement agency may refuse to appoint an applicant for employment in a civilian position based on the applicant's prior criminal conviction

A law enforcement agency may refuse to appoint an applicant for employment in a civilian position based on the applicant's prior criminal conviction

2016 NY Slip Op 01548, Appellate Division, First Department

Article 23-A of the Corrections addresses the “licensure and employment of persons previously convicted of one or more criminal offenses.” It is referred to as a remedial statute “enacted to eliminate the effect of bias against ex-offenders that prevented them from obtaining employment,” by prohibiting employers, public and private, from unfairly discriminating against persons previously convicted of one or more criminal offenses. In making its employment decision, Article 23-A bars discrimination based on a criminal record “unless after consideration of certain enumerated statutory factors, the employer determines that there is direct relationship between the offense(s) and the duties or responsibilities inherent in the … employment … or such employment … poses an unreasonable risk to the public….”

Characterized as case turning on the interpretion of Article 23-A and involving “an issue of first impression,” the Appellate Division unanimously sustained the decision of the New York City Police Department [NYPD] not to appoint DB to the position of Police Communications Technician (PCT). Individuals employed by NYPD as PCTs serve as "civilian employees"* in contrast to serving in the Department as "sworn officers" as defined in §1.20 (34) of the Criminal Procedures Law. 

Notwithstanding the criteria set out in Article 23-A, the court ruled that a law enforcement agency may refuse to hire an applicant seeking employment with that agency as a civilian solely on the basis of the applicant's prior criminal conviction. The Appellate Division explained that, in its view, the protections of Article 23-A do not apply to an individual seeking to be hired by a law enforcement agency in a "civilian" capacity because "membership in any law enforcement agency" is expressly exempted from the statutory definition of "employment" set out in §750(5) of the Correction Law.**

DB had alleged that the sole basis for the NYPD rejecting her for employment as a PCT was that she has a prior criminal conviction.*** 

The issue as formulated by the Appellate Division: Is an individual applying for civilian employment as a PCT with NYPD, a law enforcement agency, seeking something different from "membership" in a law enforcement agency? DB contended that "membership" in a law enforcement agency applies only to sworn officers such as police officers in contrast to those seeking employment in a civilian capacity and that any other interpretation renders the policy of rehabilitation through employment meaningless because good jobs with the NYPD are foreclosed to her, despite having received a certificate from disabilities.

The court concluded that where a term does not have a controlling statutory definition, "courts should construe the term using its usual and commonly understood meaning." Turning to the Merriam-Webster dictionary, the Appellate Division said "membership" is therein defined as "the state of belonging to or being a part of a group or an organization — the state of being a member — all the people or things that belong to or are part of an organization or a group." 

Thus, said the court, applying this broad definition, the exemption does not apply to a narrower group of people such as those seeking employment as sworn officers with a law enforcement agency but applies to anyone, including those such as DB, applying for employment in a law enforcement agency in civilian capacity rather than in a sworn officer capacity. In the words of the Appellate Division: “Had the legislature intended that the exemption from Article 23-A only apply to persons seeking to enforce laws [i.e. uniformed police officers or peace officers], but not the civilians employed by the same agencies or departments, it could have specifically so provided.”

Noting that New York State’s Attorney General has similarly interpreted the exemption in Article 23-A [see 1981 Ops Atty Gen No. 81-7], the court said that while an opinion of the Attorney General is not binding, it "is an element to be considered." In addition, the Appellate Division cited Little v County of Westchester, 36 AD3 616, a case involving the rejection of an applicant for appointment as a correction officer.****

The court opined that its interpretation was not inconsistent with the broad purpose of Article 23-A, that applicants with prior criminal convictions be treated fairly as PCTs take calls, obtain critical information and are the first point of contact between the public and law enforcement and such personnel have access to confidential information, including non-public activities. In the words of the Appellate Division, “The civilian nature of the job does not determine its importance in NYPD operations.”

* Incumbents of such positions are frequently referred to as 911 operators or dispatchers.

** §750.5 provides that "employment" shall not, for the purposes of [Article 23-A], include membership in any law enforcement agency” while §751, pertinent part, provides that the provisions of Article 23-A shall apply with respect to employment “except where a mandatory forfeiture, disability or bar to employment is imposed by law, and has not been removed by an executive pardon, certificate of relief from disabilities or certificate of good conduct.” According to the decision, DB possessed a certificate of relief from disabilities.

*** The court noted that DB contended that she was a victim of domestic violence and that she inflicted certain injuries on her abuser in self-defense. She pleaded guilty to second-degree assault, a Class D felony and was sentenced to five years probation, which she had completed.

**** In Little the court held that “An appointing authority has wide discretion in determining the fitness of candidates, which discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01548.htm

Selected Reports issued by the Office of the State Comptroller during the week ending March 5, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending March 5, 2016

Click on text highlighted in color to access the full report

State audits released.
 
City University of New York – Administration of Fellowship Leaves; Follow-up
An initial audit issued in October 2013, examined whether the fellowship leaves granted instructional staff were awarded for authorized purposes and in compliance with all applicable requirements. Although most of the fellowship recipients reviewed complied with CUNY policy, improvements were needed to protect taxpayer dollars and the integrity of CUNY’s fellowship leave program. In a follow-up report, auditors determined CUNY has made progress in addressing the issues identified in the initial report.

http://osc.state.ny.us/audits/allaudits/093016/15f5.pdf

Office of General Services – Passenger Vehicle Fleet Management

In the almost three years since the state’s Spending and Government Efficiency (SAGE) Commission’s recommendations, OGS has not made any formal recommendations regarding the state’s vehicle fleet, as directed in the commission report. As a result, there has been relatively little progress in achieving the overall goal of consolidating and centralizing management of the fleet, which largely remains the responsibility of managers at the individual agencies. For additional progress to occur, OGS needs to perform a comprehensive analysis of agency needs and take steps to ensure the fleet available to each agency is the proper size and makeup to most efficiently meet agency missions.

http://osc.state.ny.us/audits/allaudits/093016/14s30.pdf

Department of Health – Fraudulent and Improper Claims – Follow-up

An initial audit issued in August 2013, determined that Medicaid made improper payments totaling $94,460 to Davis Ethical Pharmacy. Auditors determined that Davis Ethical likely fabricated nearly all of the improper claims. After an investigation, the owner, William Davis, pleaded guilty to Grand Larceny in the Second Degree in Nassau County District Court. In a follow-up, auditors determined DOH made progress addressing the problems identified in the initial report. At the time of the follow-up review, Davismade full restitution to the state.

http://osc.state.ny.us/audits/allaudits/093016/15f25.pdf

United HealthCare – Fraudulent and Improper Claims
An initial audit report issued in August 2013, determined the New York State Health Insurance Plan (NYSHIP) made improper payments totaling $137,459 to Davis Ethical Pharmacy. After an investigation, the owner, William Davis pleaded guilty to Grand Larceny in the Second Degree in Nassau County District Court. In a follow-up, auditors determined United made progress addressing the problems identified in the initial report. At the time of the follow-up review, William Davis made full restitution to the state.

http://osc.state.ny.us/audits/allaudits/093016/15f26.pdf

 

Higher Education Services Corporation – Tuition Assistance Program
Auditors determined that Metropolitan Learning Institute was overpaid $581,315 because school officials incorrectly certified students as eligible for state financial aid awards.

http://osc.state.ny.us/audits/allaudits/093016/14t1.pdf

NYC Department of Health and Mental Hygiene – Administration of Contracts
NYC Department of Health and Mental Hygiene [DOHMH] did not effectively administer certain financial aspects of the contract with the Center for Urban Community Services. As a result, CUCS overbilled DOHMH by about $1.06 million during the year ended June 30, 2013. The overbillings include $1.05 million of improperly claimed personal service expenses and $11,889 of unsupported or inappropriate non-personal service costs.

http://osc.state.ny.us/audits/allaudits/093016/14n5.pdf

SUNY Downstate Medical Center – Review of Grove Technologies, Inc.
In April 2014, Downstate entered into a state-funded, non-competitive, single-source contract with Growe for electronic medical health record services.  Auditors found Downstate paid up to $1.3 million more than necessary by using a non-competitive procurement rather than bidding the services or using existing competitive contracts available to Downstate.  The decision to use the non-competitive contract was based on unsupported claims from Downstate officials.

http://osc.state.ny.us/audits/allaudits/bseaudits/bse20160219.pdf

IRS Alerts Payroll and HR Professionals to Phishing Schemes

IRS Alerts Payroll and HR Professionals to Phishing Schemes

Source: IRS Newsletter #IR-2016-34 [Links to additional information are in color below.]

On March 3, 2016, the Internal Revenue Service [IRS] issued an alert to payroll and human resources professionals warning of an emerging phishing e-mail scheme that purports to be from executive officers or supervisors and requests employee personal information.

The Merriam‑Webster dictionary defines phishing as "a scam by which an e-mail user is duped into revealing personal or confidential information which the scammer can use illicitly."

The IRS reports that it has learned this scheme – part of the surge in phishing e-mails seen this year – already has claimed several victims as payroll and human resources offices mistakenly e-mailed payroll data including W-2 Forms that contain Social Security numbers and other personally identifiable information, to cyber-criminals posing as executive officers or supervisors.

IRS Commissioner John Koskinen said “If your CEO appears to be e-mailing you for a list of company employees, check it out before you respond. Everyone has a responsibility to remain diligent about confirming the identity of people requesting personal information about employees.”

IRS Criminal Investigation is reviewing several cases in which individuals have been tricked into sharing Social Security numbers with what turned out to be cyber-criminals. Criminals using personal information stolen elsewhere then seek to “monetize” this data, including filing fraudulent tax returns for refunds due a taxpayer. 

There is also a phishing variation is known as a “spoofing” e-mail. The e-mail will contain, for example, the actual name of an executive officer or supervisor. In this variation, the “CEO” sends an e-mail to a payroll or personnel office employee requesting a list of employees and information including employee Social Security numbers.

The following are actual examples of the information requested in these “spoof mails”:

“Kindly send me the individual 2015 W-2 (PDF) and earnings summary of all W-2 of our employees for a quick review

“Can you send me the updated list of employees with full details (Name, Social Security Number, Date of Birth, Home Address, Salary) as at 2/2/2016.

“I want you to send me the list of W-2 copy of employees wage and tax statement for 2015,

“I need them in PDF file type, you can send it as an attachment. Kindly prepare the lists and e-mail them to me ASAP.”

The IRS recently renewed and issued a consumer alert [IR-2016-28, Feb. 18, 2016] for e-mail schemes after seeing an approximate 400 percent surge in phishing and malware incidents so far this tax season and receiving other reports of scams targeting others in a wider tax community.

The e-mails are designed to trick individuals into thinking these are official communications from the IRS or others in the tax industry, including tax software companies. The phishing schemes can ask individuals to provide a wide range of personal and financial information. E-mails can seek information related to refunds, filing status, confirming personal information, ordering transcripts and verifying PIN information.

The IRS, state tax agencies and tax industry are engaged in a public awareness campaign – Taxes. Security. Together. – to encourage everyone to do more to protect personal, financial and tax data. See IRS.gov/taxessecuritytogetheror Publication 4524 for additional information addressing steps that can take to protect employees and individuals from spoofs, scams and phishing.  

Determining if an administrative agency's decision is arbitrary and capricious

Determining if an administrative agency's decision is arbitrary and capricious

Muhammad v Zucker, 2016 NY Slip Op 01446, Appellate Division, First Department

Dr. Rafeak Muhammad was disciplined after he was found to have falsified workers' compensation forms and treating workers' compensation patients when it was no longer medically indicated in his private practice.

Dr. Muhammad filed an Article 78 petition in which he sought to modify a consent order that limited his license to practice medicine and annul the determination of the Director of the Office of Professional Medical Conduct [the Director] with respect to certain modifications Dr. Muhammad had requested.

Supreme Court denied Dr. Muhammad's petition and dismissed the proceeding. The Appellate Division unanimously affirmed the Supreme Court’s ruling.

Citing the so-called Pell Doctrine,* the Appellate Division explained that the test used by courts to determine if an administrative agency's decision is arbitrary and capricious is whether the determination "is without sound basis in reason and is generally taken without regard to the facts." The court said that upon its review of the record, the Director’s decision not to join in Dr. Muhammad’s application seeking a modification of the underlying consent order "was rational and based on the facts.”

Dr. Muhammad had asked the Director to consider two proposed modifications of the consent order. The first modification would permit Dr. Muhammad to treat workers' compensation patients in the Jamaica Hospital Ophthalmology Clinic. The second modification Dr. Muhammad sought would permit him to treat workers' compensation patients in his private practice.

The Appellate Division noted that the Director concluded that the circumstances described in Dr. Muhammad’s letters of support from the chief financial officer of the hospital and the head of the ophthalmology department warranted only the adoption of first proposed modification.

The Director’s response to Dr. Muhammad's second modification request -- that he be permitted to treat workers' compensation patients in his private practice -- was a limited second modification order that would entail a more gradual release of the license restriction. 

This, said the court, demonstrated that the facts of this matter were considered and that the Director exercised his discretion in advocating an incremental approach, concluding that that this was not a case that would require the court to "surmise or speculate as to how or why an agency reached a particular conclusion."

* Pell v Bd. of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222

The decision is posted on the Internet at:

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http://www.nycourts.gov/reporter/3dseries/2016/2016_01446.htm

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html 

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Recent decisions issued by the New York City Office of Administrative Tribunals and Hearings

Recent decisions issued by the New York City Office of Administrative Tribunals and Hearings

Click on text highlighted in color to access the complete text of the decision.

Failure to provide a urine sample for a drug test

Dep't of Sanitation v. E. V., OATH Index No. 805/16

 

A sanitation worker was charged with refusing to undergo a drug test after he could not provide sufficient urine within the requisite three hour period for the test.

The employee argued that his blood pressure medication limited his ability to produce urine. Two doctors, testifying for the appointing authority, concluded that it is unlikely that the particular medication could have had such an effect. The employee did not offer any medical documentation showing his difficulty with urinating prior to the date of the contested drug test and had no trouble producing enough urine in subsequent drug tests.

OATH Administrative Law Judge John B. Spooner sustained the charge and recommended 30-day suspension without pay.   

Physical altercation with a co-worker

Health & Hospitals Corp. (Renaissance Health Network) v. James, OATH Index No. 2085/15

OATH Administrative Law Judge Kara J. Miller recommended termination of an administrative associate at a health clinic who was alleged to have been both excessively late to work and having had a physical altercation with a co-worker.

The appointing authority alleged that the employee approached a co-worker and pushed him without provocation, using obscenities and attracting the attention of various other staff members. Multiple witnesses confirmed the co-worker's testimony. The employee argued that the incident stemmed from the co-worker sexually harassing her but provided no evidence to indicate that the alleged harassment actually took place. Moreover, the ALJ found that employee's testimony contained significant inconsistencies and implausible assertions.

Judge Miller sustained the physical altercation charge along with an uncontested charge of excessive lateness. 

Confrontation with a superior

Dep't of Sanitation v. Anonymous, OATH Index No. 056/16

The Department of Sanitation charged a sanitation worker with misconduct after he had a confrontation with a superior at work.

The worker had yelled at a Deputy Chief and pushed a car door into him, fracturing his finger. The worker also refused a drug test after being ordered to take one immediately after the incident.

OATH Administrative Law Judge Faye Lewis weighed the testimony of both parties along with medical documentation and photographs of the Deputy Chief's injury and sustained the charges, recommending termination of employment.  

Initiation of an unauthorized investigation

Dep't of Sanitation v. Serrano, OATH Index No. 813/16

OATH Administrative Law Judge Kevin F. Casey sustained charges of misconduct against a sanitation worker who completed an unauthorized investigation on behalf of a friend.

The employee was alleged to have questioned private security personnel about their procedures for issuing littering summonses while he was on duty. This inquiry following a complaint from the employee’s friend that she was being harassed by the security officers in her housing complex. The employee did not record or report his actions.

Judge Casey concluded that the employee used his position in the Department improperly to assist a friend, failed to document his activities, and acted unprofessionally. A 30-day suspension without pay was recommended.   

Failure to submit documentation justifying emergency leave and sick leave

Dep't of Sanitation v. Adkinson, OATH Index No. 2170/14

The Department of Sanitation proved that on multiple occasions a sanitation worker failed to submit documentation for emergency and sick leave, was inaccessible for home visits while on sick leave and failed to report to a clinic for examination when required.

Given the number of violations, OATH Administrative Law Judge Ingrid M. Addison recommended termination of employment but suggested that the Department consider the employee's expressed desire to retire shortly as a viable alternative to termination.    

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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Tax Guide to U.S. Civil Service Retirement Benefits

Tax Guide to U.S. Civil Service Retirement Benefits

IRS has published its latest tax guide for preparing tax returns involving U.S. Civil Service Retirement benefits. It is posted on the Internet at: https://www.irs.gov/publications/p721/

Unless an administrative agency explains why it is deviating from its past decisions in making its ruling, courts take a dim view of departures from its precedent

Unless an administrative agency explains why it is deviating from its past decisions in making its ruling, courts take a dim view of departures from its precedent

Zaremski v New Visions, 2016 NY Slip Op 01220, Appellate Division, Third Department

In Zaremski, the Appellate Division reminded the Workers’ Compensation Board that a decision of the Board would be deemed arbitrary "if it departs from prior Board precedent and fails to explain the reasons for its departure".

In January 2012, James Zaremski suffered an injury to his lower back during the course of his employment as a general maintenance repairperson for the employer and did not return to that employment. At the time of his injury, claimant was also solely operating a self-owned appliance repair business and in June 2012 he resumed operating that business on a part-time basis but with physical restrictions.

Zaremski’s claim for workers' compensation benefits was established December 2012 and, following a hearing on the issue of reduced earning benefits, a Workers' Compensation Law Judge [WCLJ] found that he was entitled to tentative reduced earnings of $300 per week based upon the difference between his average weekly wage from his employment as a general maintenance repairperson and his weekly earnings subsequent to his return to work at his self-employment business.

Upon review, the Workers' Compensation Board modified the WCLJ’s decision and ruled that Zaremski had no compensable claim for reduced earnings after January 22, 2013.

The court said that the Board has previously determined that although wages from a noncovered concurrent employment cannot be included in the calculation of a claimant's average weekly wage pursuant to Workers' Compensation Law §14(6), such wages must be taken into account when computing a claimant's reduced earnings under Workers' Compensation Law §15(5-a).

Thus in Zaremski’s case the Board apparently ignored its precedent when it held that that  Zaremski's self-employment did not qualify as concurrent employment to increase his average weekly wage, the earnings from his self-employment could not be considered in determining his “reduced earnings.”

The Appellate Division held that because the Board failed to explain its departure from this precedent, the decision must be reversed and the matter remitted for further proceedings before the Board.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01220.htm

Acting in self-defense when accosted by others while at work did not constitute disqualifying misconduct within the meaning of the Unemployment Insurance Law

Acting in self-defense when accosted by others while at work did not constitute disqualifying misconduct within the meaning of the Unemployment Insurance Law
Matter of Chirico (City of Syracuse--Commissioner of Labor), 2016 NY Slip Op 01027, Appellate Division, Third Department

Anthony D. Chirico worked for the City of Syracuse as a motor equipment operator for about 10 months. After parking the truck he was driving, three individuals, two of whom were carrying golf clubs, assaulted him. After being struck with a golf club, Chirico grabbed one of the golf clubs and swung the club to ward off the three attackers. A few days later the City terminated Chirico from his employment for "unsatisfactory work performance."

Chirico then applied for, and received, unemployment insurance benefits. The Department of Labor, however, subsequently determined that Chiricolost his employment with the City due to actions that constituted misconduct in connection with that employment, thus disqualifying him from receiving benefits.

Ordered to reimburse the City for the unemployment insurance benefits he had received,* Chirico appealed. Although the Administrative Law Judge [ALJ] upheld the Department's determination, the Unemployment Insurance Appeal Board reversed the ALJ’s ruling and determined that Chirico was entitled to receive unemployment insurance benefits because, in its view, his actions were in self-defense and did not constitute disqualifying misconduct.

The City appealed the Board’s determination, contending that Chirico not entitled to receive unemployment insurance benefits because he had engaged in disqualifying misconduct while at work. The Appellate Division sustained the Board’s determination, explaining "Whether a claimant has engaged in disqualifying misconduct is a factual question for the Board to resolve and its determination will not be disturbed if supported by substantial evidence."

The court also noted that not every discharge for cause is misconduct within the meaning of the Unemployment Insurance Law, which defines such disqualifying misconduct  conduct as “a willful and wanton disregard of the employer's interest.”

Although engaging in a physical altercation or exchange during the course of one's employment may be found to constitute disqualifying misconduct, here Chirico asserted that [1] he did not initiate the altercation and [2] that he acted in self-defense and appropriately under the circumstances. These assertions, said the court, “presented a credibility issue that the Board could properly choose to credit.”

The City also argued that Chirico had made a “willful false statement” in his application for unemployment insurance benefits. The Appellate Division rejected the City’s contention that Board should have found that such a willful false statement or representation warranted a reduction or forfeiture of Chirico’s unemployment insurance benefits.

The court said that the details of the incident that Chirico provided in his application for unemployment benefits were consistent with his testimony at the hearing, “which the Board credited.” Accordingly, the Appellate Division found no reason to disturb the Board's decision.

* See Labor Law §594

The decision is posted on the Internet at:

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http://www.nycourts.gov/reporter/3dseries/2016/2016_01027.htm

Selected Reports issued by the Office of the State Comptroller during the week ending February 28, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending February 28, 2016

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Former Director of the Putnam County Department of Consumer Affairs enters guilty plea for stealing money she accepted to satisfy county-issued fines

Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Jean Noel, the former Director of the Putnam County Department of Consumer Affairs, for stealing money from Putnam County. Ms. Noel was arrested after a joint investigation by the State Police, the Office of the New York State Comptroller, and the Attorney General’s Office revealed Ms. Noel’s theft of cash that she accepted from local contractors to satisfy county-issued fines. Ms. Noel entered a guilty plea before the Honorable Joseph J. Spofford, Jr. in Carmel Town Court to the class “A” misdemeanor charge of petit larceny under Penal Law § 155.25. As part of a plea agreement, Ms. Noel agreed to terminate her employment with Putnam County, pay restitution, and was sentenced to a one-year conditional discharge.

http://www.osc.state.ny.us/press/releases/feb16/022316.htm?utm_source=weeklynews20160228&utm_medium=email&utm_campaign=022316release

Former Tupper Lake Volunteer Fire Department Treasurer pleaded guilty to grand larceny

Former Tupper LakeVolunteer Fire Department Treasurer Timothy J. Brown pleaded guilty to grand larceny and agreed to repay the $30,000 he stole for private vacations revealed in an auditand investigation by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/feb16/022416b.htm?utm_source=weeklynews20160228&utm_medium=email&utm_campaign=022416brelease

School District Audits Released

Alexander Central School District - Financial Condition

Cazenovia Central School District - Financial Condition

Rondout Valley Central School District - Financial Management

Silver Creek Central School District – Financial Condition

Wallkill Central School District – Financial Management

Comptroller rejected contracts valued at $2.64 billion and 4,200 payments valued at $2.7 million due to fraud, waste or other improprieties in January

State Comptroller Thomas P. DiNapoli announced his office approved 1,436 contracts valued at $4.53 billion and approved 1.9 million payments worth $10.2 billion in January. His office also rejected 170 contracts and related transactions valued at $2.64 billion and 4,200 payments valued at $2.7 million due to fraud, waste or other improprieties.

http://www.osc.state.ny.us/press/releases/feb16/022516a.htm?utm_source=weeklynews20160228&utm_medium=email&utm_campaign=022516arelease

Department of Health (DOH) needs to fix problems and delays with how it is assessing fines to nursing homes after violations are found

The state Department of Health (DOH) needs to fix problems and delays with how it is assessing fines to nursing homes after violations are found, according to an auditreleased by State Comptroller Thomas P. DiNapoli. While DOH is frequently inspecting nursing homes and acting quickly on serious complaints, auditors found that some facilities had repeated violations that escalated into more serious problems with limited consequences.

http://www.osc.state.ny.us/press/releases/feb16/022216.htm?utm_source=weeklynews20160228&utm_medium=email&utm_campaign=022216release

State may face increasing budgetary challenges in coming years as revenue growth

is expected to slow

New York state’s fiscal position has improved, but the state may face increasing budgetary challenges in coming years as revenue growth is expected to slow and billions of dollars in settlement money are spent, according to an analysisof the $154.6 billion Executive Budget released by State Comptroller Thomas P. DiNapoli. This report, prepared each year following the release of the Executive Budget, provides information to assist in the evaluation of the 2016-17 proposal.

http://www.osc.state.ny.us/press/releases/feb16/022416a.htm?utm_source=weeklynews20160228&utm_medium=email&utm_campaign=022416arelease

Fiscal Stress Monitoring System – Reports concerning selected villages

State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System has identified 18 villages in New Yorkin some level of fiscal stress. For 2015, three villages have been classified as in “significant fiscal stress,” four in “moderate fiscal stress,” and 11 as “susceptible to fiscal stress.” Last year, a total of 22 villages were listed in fiscal stress.

http://www.osc.state.ny.us/press/releases/feb16/022516.htm?utm_source=weeklynews20160228&utm_medium=email&utm_campaign=022516release

Audit finds non-profit provider of supportive housing for New York City’s Dept. of Health and Mental Hygiene (DOHMH) overbilled the agency

A non-profit provider of supportive housing for New York City’s Dept. of Health and Mental Hygiene (DOHMH) overbilled the agency by $1 million according to an auditreleased by New York State Comptroller Thomas P. DiNapoli. DOHMH’s weak oversight of the Center for Urban and Community Services made the overpayments possible and raises concerns about potential overpayments to other vendors. 

http://www.osc.state.ny.us/press/releases/feb16/021916a.htm?utm_source=weeklynews20160228&utm_medium=email&utm_campaign=021916arelease

State Comptroller and the Church of England’s investment fund challenge Exxon’s attempt to silence questions on climate change

Investors, led by New York State Comptroller Thomas P. DiNapoli and the Church of England’s investment fund, the Church Commissioners, asked the Securities and Exchange Commission to reject ExxonMobil’s plan to block a shareholder proposal for information on how the company will be impacted by public policies seeking to rein in climate change.

http://www.osc.state.ny.us/press/releases/feb16/022416.htm?utm_source=weeklynews20160228&utm_medium=email&utm_campaign=022416release

 
State’s January receipts $4.8 billion higher than initially projected

New York state collected $126.6 billion in receipts from April through January, which was $582.3 million higher than the Division of the Budget’s latest projections and $4.8 billion higher than initial projections, according to the monthly state cash report issued by New York State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/feb16/022216a.htm?utm_source=weeklynews20160228&utm_medium=email&utm_campaign=022216arelease