Failure to fully comply with the relevant rules and regulations may prove fatal to filing a viable administrative appeal of an adverse administrative decision

The Workers' Compensation Board declined to review of a decision by a Workers' Compensation Law Judge on the grounds that the self-insured employer [Employer] failed to comply with the controlling provisions of its rules and regulations.

A correction officer [Claimant] assaulted by an inmate filed a claim for workers' compensation benefits for an injury to his jaw and for "post-concussive syndrome and photophobia." A Workers' Compensation Law Judge [WCLJ) amended the claim to include an injury to the Claimant's head and found, among other things, that Claimant "is totally industrially disabled based upon his work-related injuries and legal blindness."

The Employer filed an application for review of the WCLJ's determination by the Workers' Compensation Board, challenging, among other things, the WCLJ's finding that [Claimant was] totally industrially disabled. The Board denied the application for Board review of the WCLJ's ruling because of Employer did not answer a question on the application form it had submitted seeking such review. Employer next appealed the Board's rejection of its application for review.

The Appellate Division affirm the Board's decision, noting that it had "consistently recognized that 'the Board may adopt reasonable rules consistent with and supplemental to the provisions of the Workers' Compensation Law, and the Chair of the Board may make reasonable regulations consistent with the provisions thereof.'"

The court explained that the regulations require, in relevant part, that "an application to the Board for administrative review of a decision by a [WCLJ] shall be in the format as prescribed by the Chair [and] . . . must be filled out completely",* noting that "[w]here, as here, a party who is represented by counsel fails to comply with the formatting, completion and service submission requirements set forth by the Board, the Board may, in its discretion, deny an application for review."

Further, opined the court, Employer's reliance on "its responses to other questions on the application for Board review does not cure the defective response to question number 15," the specific question which the Board found was not answered.

* See 12 NYCRR 300.13[b]

Click HERE to access the full text of the Appellate Division's decision.

 

Elements to be considered in evaluating justifications advanced for rejecting a Freedom of Information Law request filed with a governmental entity subject it provisions

In reviewing an appeal from a Supreme Court decision which denied the petition filed by Plaintiff seeking to compel the New York City Dept. of Investigation [Investigations] to disclose its entire case file and all documents related to a certain investigation under color of the Freedom of Information Law [FOIL],* the Appellate Division vacated the Supreme Court's ruling, in part, and remanded the matter for further proceedings as to the remaining records responsive to the FOIL request before a different Justice, and otherwise affirmed the Supreme Court's ruling, without costs.

In particular, the Appellate Division found:

1. Investigations failed to meet its burden of establishing that "disclosure of any records responsive to Petitioner's FOIL request would 'interfere with law enforcement investigations or judicial proceedings', which exemption 'ceases to apply after enforcement investigations and any ensuing judicial proceedings have run their course.';

2. " Investigations failed to establish that disclosure would 'identify a confidential source or disclose confidential information relating to a criminal investigation ... [and] in the absence of any evidence that [any] person received an express or implied promise of confidentiality'; and

3. Investigations' assertion that "disclosure would reveal nonroutine criminal investigative techniques or procedures is conclusory."

As to certain email messages offered by Plaintiff in support of its Article 78 petition, the Appellate Division, citing Matter of Gould, 89 NY2d at 277, opined that they "are covered by the inter-agency or intra-agency materials exemption " of Public Officers Law §87[2][g] as they amount to "opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making".

However, said the Appellate Division, "the applicability of this exemption to any other responsive records cannot be determined on this record in the absence of in camera review.  

The court than remanded the matter to Supreme Court for a de novo determination, after an in camera inspection, of the applicability of the inter-agency or intra-agency materials exemption and any other exemptions properly raised by Investigations.

* Public Officers Law §§84-90

Click HERE to access the full text of the Appellate Division's decision. 

 

Employee absent on workers' compensation leave served with disciplinary charges alleging he was able to perform the essential functions of his job while on such leave

A school district [Employer] adopted the finding a §75 disciplinary action hearing officer holding that the employee [Plaintiff] was guilty of certain charges of misconduct and the hearing officer's recommendation that the Petitioner be terminated from his position. Petitioner appealed the Employer's decision but the Appellate Division sustained the Employer's action and dismissed Plaintiff's Article 78 petition on the merits, with costs.

Petitioner, a motor equipment operator, sustained injuries on August 11when the ride-on lawn mower he was using while at work overturned. Petitioner obtained a doctor's recommendation that he not return to work until September 8.  After Plaintiff returned to work on September 8, the Employer filed fourteen Civil Service Law §75 disciplinary charges against the Petitioner alleging misconduct that occurred between August 12, and September 8, which charges the Appellate Division characterized as alleging the Plaintiff was "out of work on workers' compensation even though he was able to perform the essential functions of his job as a motor equipment operator."  

The Appellate Division, explaining that a court's review of an administrative determination in an employee disciplinary proceeding made after a hearing pursuant to Civil Service Law §75 is limited to considering whether the determination was supported by substantial evidence, said where there is conflicting evidence or different inferences may be drawn from the evidence, "the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]" and the courts may not weigh the evidence or reject the choice made by the appointing authority where the evidence is conflicting and room for choice exists, noting the Court of Appeals decision in Berenhaus v Ward, 70 NY2d 436.

As any credibility issues were resolved by the hearing officer, the Appellate Division said it found "no basis upon which to disturb the determination that the [Plaintiff] was guilty of the misconduct alleged, which was supported by substantial evidence."

Noting that "A court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness", the Appellate Division opined that "[u]nder the circumstances here, the penalty of termination of the [Plaintiff's] employment was not so disproportionate to the offense committed as to be shocking to one's sense of fairness," citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

Click HERE to access the full text of the Appellate Division's decision.

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A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click on http://booklocker.com/books/7401.html  

The changing number of justices on the Supreme Court of the United States

As discussions concerning increasing the number of justices serving on the United States Supreme Court are currently a topic of continuing interest, it might be well to note although the Judiciary Act of 1789 set the number of justices of the Supreme Court at six, a chief justice and five associate justices, in 1807 Congress amended the law and increased the number of justices to seven.

The next change occurred in 1837 when the number of justices was increased to nine while in 1863 the number became 10 justices. In 1866 Congress enacted the Judicial Circuits Act, reducing the number of justices to seven in number, only to raise the number of justices to nine in 1869, which number has survived to date.

Although then President Franklin Delano Roosevelt sought to persuade Congress to enact legislation authorizing the appointment of additional justices to the high court in the event a justice, upon attaining the age 70, declined to resign or retire, and limited the total number of justices serving on the Supreme Court to 15 members, Congress elected not to do so.

See, also, https://publicpersonnellaw.blogspot.com/2018/10/setting-number-of-justices-on-united.html

An educator's previously unblemished employment record deemed insufficient to mitigate imposing a lesser penalty than dismissal from the position after being found guilty of charges of incompetence and misconduct

An educator [Plaintiff] was found guilty of disciplinary charges served upon her by her employer, the New York City Department of Education [Employer] after a hearing. The arbitrator found the Plaintiff guilty of disciplinary charges filed against her alleging incompetence and misconduct and imposed the penalty of dismissal.  

Plaintiff initiated a CPLR Article 75 proceeding challenging her dismissal from her position and sought a court order vacating the arbitration award which sustained disciplinary charges filed against her alleging Plaintiff was guilty of incompetence and misconduct. 

Supreme Court granted the Employer's motion to dismiss Plaintiff's Article 75 petition seeking to vacate an arbitration award, which ruling Plaintiff appealed to the Appellate Division.

The Appellate Division unanimously affirmed the Supreme Court's decision. The court observed that the arbitrator's "determination sustaining charges of incompetency is amply supported by the evidence." Further, said the court, the evidence also showed that Plaintiff was "unwilling ... to implement suggestions and constructive criticism of her ineffective teaching methods. Likewise, said the court, the portions of the arbitrator's decision addressing various charges of misconduct were "in accord with due process, rationally based and supported by adequate evidence."

As to the penalty imposed, dismissal from her position, the Appellate Division opined that notwithstanding Plaintiff's "previously unblemished record ... her identified pedagogical shortcomings, lack of improvement, and student safety issues inherent in two of the sustained misconduct charges, the penalty of termination does not shock one's sense of fairness", citing Matter of Ferraro v Farina, 156 AD3d 549, leave to appeal denied, 32 NY3d 902.

Click HERE to access the full text of the Appellate Division's decision.

 

The Medical Board's recommendation that an application for performance of duty disability retirement benefits be denied is conclusive if it is supported by some credible evidence and is not arbitrary or capricious

Supreme Court annulled a determination by the Board of Trustees of the New York City Employees' Retirement System [Trustees] denying the application of a retired New York City correction officer, [Petitioner] for performance of duty disability retirement benefits based on its Medical Board's recommendation and directed that the Petitioner be granted performance of duty disability retirement benefits retroactive to March 11, 2016.

The Appellate Division reversed the Supreme Court's ruling, on the law, with costs, and confirmed the Trustees' determination and dismissed Petitioner's CPLR Article 78 proceeding on the merits.

The Appellate Division explained that the Trustees' Medical Board's determination is conclusive if it is supported by some credible evidence and is not arbitrary or capricious, citing Matter of Solomonoff v New York City Employees' Retirement Sys., 188 AD3d 700. Further, opined the court, in the event there is conflicting medical evidence involved in the proceeding, the "resolution of a conflict in the medical evidence is solely within the province of the Medical Board.

Noting the decision in Topkin v Board of Educ. of City School Dist. of N.Y., 121 AD2d at 531, the Appellate Division said:

1] "The board is privileged to accept the medical reports of its own expert over those of a claimant"

2. "A mere conflict in opinion among physicians is not a ground for disturbing a determination; and

[3] "Courts may not 'substitute [their] own judgment for that of the Medical Board,' citing Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d at 761.

Click HERE to access the full text of the Appellate Division's decision in this appeal. 

 

Law practice management software

Nicole Black, a Rochester, New York attorney, has posted an item on her law blog, Sui Generis, providing a "round up" of law practice management software, litigation fact management software, ABA Techshow and more.

Click HERE to access her post.

 

Audits and reports issued by the New York State Comptroller during the week ending April 16, 2021

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending April 16, 2021.

Click on the text highlighted in color to access the complete audit report.

MUNICIPAL AUDITS

Village of Shoreham – Board Oversight and Justice Court (Suffolk County)  Auditors found the board did not properly oversee the village’s financial operations and the Justice Court did not properly account for court funds. Auditors found 22 claims totaling $132,819 were paid without support, duplicate receipts were rarely issued and not all cash was deposited in a timely manner. The board also did not annually audit the clerk-treasurer's or court's records and reports. For the court, 70 tickets could not be accounted for, duplicate receipts were not always issued and bank reconciliations and accountability analyses were not complete or reconciled. In addition, receipts totaling $3,435 were collected and deposited but payments to the clerk-treasurer and reported to the Justice Court Fund only amounted to $3,360.

SCHOOL DISTRICT AUDITS

Hudson City School District – Information Technology (Columbia County) District officials did not adequately secure and protect its information technology (IT) systems against unauthorized use, access and loss. The board and district officials also did not adopt adequate IT policies or a disaster recovery plan. Auditors found questionable internet use on four of six computers tested. School officials also did not disable 123 of the 462 enabled network accounts auditors examined. These 123 user accounts were not needed and included generic and former employee accounts. In addition, sensitive IT control weaknesses were communicated confidentially to officials.

 

Royalton-Hartland Central School District – Information Technology Contingency Planning (Genesee County, Niagara County and Orleans County) The board and district officials have not developed and adopted a comprehensive written information technology (IT) contingency plan. The district pays $10,500 for central site infrastructure support, which includes a disaster recovery plan template, a key component of an IT contingency plan. Although the district paid for a template, officials did not obtain it. Without a comprehensive written IT contingency plan in place that is properly distributed to all responsible parties and periodically tested for efficacy, district officials have less assurance that employees will react quickly and effectively to maintain business continuity. As a result, important financial and other data could be lost, or suffer a disruption to operations.

Westhampton Beach Union Free School District – Extra-Classroom Activity Funds (Suffolk County) The extra-classroom activity clubs did not maintain adequate records. Therefore, auditors could not determine whether all funds received and disbursed were properly accounted for. Deposits were not always supported by school deposit forms or accurately completed bank deposit slips and activity logs.

 

Wyandanch Union Free School District – Budget Review (Suffolk County) Auditors found that the significant revenue and expenditure projections in the proposed budget are reasonable. District officials did implement the recommendations in Comptroller DiNapoli’s July 2020 budget review letter. The district's proposed budget complies with the tax levy limit because it includes a tax levy of $22,922,337, which is within the limits established by law.

 

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Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 180,000 contracts, billions in state payments and public authority data. Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.

 

Tolling the running of the statute of limitations to permit the reinstatement of an action

In this decision the Appellate Division addressed the application of the statute of limitations with respect to certain proceedings encountered in the course of a CPLR Article 78.

Typically the statute of limitations for filing a timely Article 78 petition is four months from the time that the determination to be reviewed becomes final. CPLR 205(a), however, provides, in pertinent part, that [i]f an action is timely commenced and is terminated in any other manner than by ... a dismissal of the complaint for neglect to prosecute the action, ... the plaintiff may commence a new action upon the same transaction or occurrence ... within six months after the termination ....

In contrast, the CPLR provides that in the event a dismissal is one for neglect to prosecute the action, "the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation."

Further, explained the Appellate Division, "CPLR 205(a) is a tolling provision, which serves the salutary purpose of preventing a Statute of Limitations from barring recovery where the action, at first timely commenced, had been dismissed due to a technical defect which can be remedied in a new action". It is "designed to insure to the diligent suitor the right to a hearing in court until he or she reaches a judgment on the merits,"citing Wells Fargo Bank, N.A. v Eitani, 148 AD3d 193.

Thus, said the court, the "'neglect to prosecute' exception in CPLR 205(a) applies not only where the dismissal of the prior action is for '[w]ant of prosecution' pursuant to CPLR 3216, but whenever neglect to prosecute is in fact the basis for dismissal."

Accordingly, the court in this proceeding opined that "the tolling provision of CPLR 205(a) is inapplicable where, as here, over the course of nearly 14 months, a litigant fails to timely perfect a proceeding and fails to make any effort to obtain an extension of time to perfect, citing Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d at 521.

Click Here to access the full text of the Appellate Divisions decision.

 

Middletown chiropractor sentenced to nine years for insurance fraud

On April 13, 2021, New York State Comptroller Thomas P. DiNapoli announced James “Jay” Spina was sentenced in federal court for running a large-scale healthcare insurance fraud scheme. Spina and three co-conspirators systematically double-billed insurers, charged for services never rendered, created shell companies and falsified records to hide their crimes.

In 2018, Spina and three others were charged with billing insurers for medically unnecessary services and procedures, submitting claims for services not rendered, double-billing for services, fabricating medical records and concealing the fraud by blocking audits. The submitted claims totaled more than $80 million. All four individuals who were charged have pleaded guilty.

Spina pled guilty to one count of conspiracy to commit healthcare fraud and was sentenced to serve 108 months (nine years) in federal prison, plus three years of probation and pay $9.7 million in restitution and forfeit $9.1 million. The co-conspirators are awaiting sentencing.

DiNapoli said “This type of fraud harms all New Yorkers and contributes to higher health care costs across the state and country." He thanked  U.S. Attorney Audrey Strauss, the FBI, the U.S. Department of Health and Human Services Inspector General and the Orange County Sheriff's Office for their aid and assistance in this matter.

U.S. Attorney Audrey Strauss said: “James Spina led a sophisticated, widespread, and callous scheme that put greed and profits ahead of patients and their well-being.  In doing so, he betrayed his professional obligations and bilked insurance companies and Medicare out of millions of dollars.  Thanks to the coordinated efforts of federal and state investigative agencies, Spina will now serve a lengthy sentence in federal prison.”

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse.

Reports of alleged of fraud involving taxpayer money may be made by calling the toll-free Fraud Hotline at 1-888-672-4555, by mailing a report to the Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236, or via Internet at https://www.osc.state.ny.us/investigations.

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Claimant who voluntarily retired became ineligible for workers' compensation benefits after the effective date of such retirement

An individual working for a public employer [Claimant] suffered an injury on the job and was classified as permanently partially disabled. Awarded benefits "for reduced earnings," Claimant continued to perform her duties with her employer "on a fairly consistent basis for many years."

When Claimant decided to retire, she opted for "regular service retirement" because she had reached the eligibility age and did not seek disability retirement benefits.  The Workers' Compensation Board found that Claimant's work-related injuries did not cause or contribute to her decision to retire and thus she was not entitled to an award of reduced earnings subsequent to the date of her retirement. Claimant appealed the Board's determination.

Although Claimant stated that she received medical advice from one physician to retire, the Appellate Division noted that the record did not contain any substantiating medical documentation supporting her having received such advice from a physician. 

The Appellate Division sustained the Board's determination that Claimant withdrew from the labor market voluntarily when she retired and thus she was not entitled to a Workers' Compensation award for "reduced earnings" subsequent to the effective date of her retirement.

Click HEREto access the Appellate Division's decision.

Determining workers' compensation benefits in situations where the employee suffered a disability that is not amenable to a schedule award

The Appellate Division affirmed a decision by the Workers' Compensation Board in which the Board ruled, among other things, that the claimant sustained a 32.5% loss of wage-earning capacity.

Citing Matter of Varrone v Coastal Envt. Group, 166 AD3d 1269, the court opined that "In situations where, as here, a claimant sustains a permanent partial disability that is not amenable to a schedule award, the Board must determine the claimant's loss of wage-earning capacity in order to fix the duration of benefits".

The court agreed with the Board's method for determining the loss of wage-earning capacity for a claimant with a non-schedule permanent partial disability, which involved the evaluation of three elements: 

1. The nature and degree of the medical impairment;

2. Functional ability/loss; and

3. Non-medical vocational factors such as education, skill, training, age and literacy.

Click HERE to access the Appellate Division's decision.