Medical experts and conflicting medical opinions

Medical experts and conflicting medical opinions
Harper v McCall, App. Div., Third Dept., 277 AD2d 589

Pauline Harper challenged the rejection of her applications for ordinary and accidental disability retirement benefits by the New York State Employees’ Retirement System, contending that the Comptroller should have considered the expert medical opinion of her physician in making his determination.

Harper, a school bus driver, claimed that she was permanently disabled due to a neck condition. Her personal physician said that Harper was permanently incapacitated from performing the duties of a school bus driver as a result of a degenerative arthritic condition in her neck that was asymptomatic prior to a 1994 work-related accident that aggravated the condition.

The retirement system’s expert testified that, while Harper exhibited pain and discomfort when he examined her in 1997, he could find no objective evidence of neurological disease or injury that would cause her subjective symptoms, and he concluded that petitioner could perform the duties of a school bus driver.

The Appellate Division rejected Harper’s appeal, commenting that “[i]t is well settled that [the Comptroller] has the authority to resolve conflicts in medical opinion and to credit the testimony of one expert over that of another and may rely on an expert opinion based on a review of medical records and a physical examination is generally credible evidence.”
NYPPL

Complimentary Webinar - Assessing the Risks of Moving to "The Cloud"

Complimentary Webinar - Assessing the Risks of Moving to "The Cloud"
Source: Virtual LegalTech

A one-hour webinar entitled, "Addressing and Assessing the Risks of Moving to the Cloud," will offered by Virtual LegalTech on December 14, 2010 from 1:30 – 2:30 PM ET.

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Participants in the webinar are eligible for CLE in certain jurisdictions.*

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The full schedule for these CLE accredited sessions* at Virtual LegalTech on December 14, 2010 follows:

9:00 – 10:00 am ET – Information Governance: Managing your Information to Reduce the Costs of Discovery

9:30 – 10:30 am ET – Ethical and Privilege Issues for Pharmaceutical Whistleblowers Counsel

10:00 – 11:00 am ET – Facing the Legal Dangers of Social Media1

2:15 – 1:15 pm ET – Frontiers of E-Discovery: What you Need to Know about Predictive Coding

1:30 – 2:30 pm ET – Addressing and Assessing the Risks of Moving to the Cloud

3:00 - 4:00 pm ET – Ethical Considerations in the New Era of Whistleblower Claims Under Dodd-Frank and Other Statutes

3:45 – 4:45 pm ET – Back to the Future: The Most Important 2020 E-Discovery Cases, and a Look Ahead to 2011

If you have additional CLE questions, please contact Virtual LegalTech at 212.457.7912 or via e-mail at ljackson@alm.com .

* Complimentary CLE is approved by the responsible authorizing agencies in New York, California and Illinois. Approval of CLE credit is pending in Florida.

Disciplinary charges must sufficiently specific so as to permit the accused to prepare his or her defense

Disciplinary charges must sufficiently specific so as to permit the accused to prepare his or her defense
Wolfe v Kelly, 2010 NY Slip Op 08847, decided on December 2, 2010, Appellate Division, First Department

Eric Wolfe, a New York City Police Department detective, was served with disciplinary charges alleging that He was guilty of perjury and the confiscation of drugs and money for personal gain involving Wolfe’s “stopping unidentified individuals in unspecified locations and confiscating unspecified amounts of narcotics and cash for his own personal gain on four occasions that occurred on unspecified dates at some time during a 24-month period between January 1998 and December 1999.”

Terminated from his position, Wolfe contended that he was denied due process of law, and that the lack of specificity in the charges prevented him from preparing any type of defense other than offering a general denial of any wrongdoing.

The Appellate Division, noting that Wolfe’s disciplinary hearing was held some six to eight years after the alleged acts of misconduct occurred, agreed.

Specification 1 alleged that "on two separate occasions between January 1998 and December 1999," Wolfe "stopped two individuals who were traveling in cabs and confiscated, without affecting [sic] an arrest and for personal monetary gain, a quantity of heroin from one, and a quantity of prescription drugs from the other."

Specification 2 alleged that "on two separate occasions between January 1998 and December 1999," Wolfe "stopped two individuals and confiscated, for personal monetary gain, a quantity of United States currency."

Specification 3 alleged that on or about and between April 23, 1998, and December 17, 1998, Wolfe testified falsely while under oath during an official court proceeding, in violation of Penal Law §210.15.

The Appellate Division explained that “It is well settled that the principles of due process applicable to criminal trials apply to government administrative proceedings, citing Matter of Murray v Murphy, 24 NY2d 150” and that the requirements of due process of law applied here because Wolfe has a constitutionally protected property interest in continued public employment.

Further, said the court, due process requires that the accused employee be provided with the notice of the charges that are "reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him . . . and to allow for the preparation of an adequate defense," citing Matter of Block v Ambach, 73 NY2d 323.
While the specificity of the notice of charges required varies from case to case, but it must be specific enough to give actual notice to the party being charged.

The Appellate Division agreed with Wolfe that indicating a general time frame that spanned two entire years was not reasonably specific so as to satisfy due process requirements.*

The Appellate Division characterized the Department’s rebuttal of Wolfe’s claims to the effect that Wolfe could have offered an alibi defense by testifying about "any times during those two years when . . . he was not partners with [New York City police officers Julio] Vasquez or [Thomas] Rachko"** as “an incomprehensible — and inane — argument, and one that impermissibly shifts the burden of proof” to Wolfe.

In addition, the court commented that:

Equally incomprehensible is that, in denying petitioner's motion to dismiss for violation of due process, the ADC stated that "the unique nature of events alleged, the places where the misconduct occurred and the witnesses present, provided the defense with ample opportunity to prepare." The alleged incidents could only be assumed as "unique" if [Wolfe] was, indeed, guilty as charged. Otherwise, as the record reflects, there was nothing at all unusual or "unique" about any of the circumstances surrounding the alleged misconduct.

Annulling the Commissioner’s determination as to Specifications 1 and 2, the Appellate Division then rejected Wolfe’s arguments with respect to Specification 3 “given the low threshold in a substantial evidence analysis” and affirmed the Commissioner's determination that Wolfe was guilty of Specification 3.

As the penalty imposed on Wolfe, termination from his position, the court remanded the matter to the Department for its reconsideration based the court's annulling Specifications 1 and 2.

* The Appellate Division said that Wolfe’s alleged misconduct in specifications one and two applied to three or four discrete incidents and was therefore “not an offense of an ongoing/continuing nature.”

** In November 2003, Vasquez and Rachko were arrested for the theft of $169,000 from a narcotics merchant who was under federal surveillance. Both subsequently entered into cooperation agreements with federal authorities, the terms of which required them "to testify at any proceeding in the Eastern District of New York or elsewhere as requested by the [U.S. Attorney's] Office." They were required to testify at Wolfe’s hearing. The decision notes that “In exchange for their testimony, Vasquez and Rachko were given the possibility of lighter sentences, and the Manhattan District Attorney's office agreed not to prosecute them for any crimes they may have committed in New York County. Both former officers were facing terms of life imprisonment at the time of petitioner's administrative hearing but had not been sentenced.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08847.htm