Crediting expert testimony

Crediting expert testimony

Vassello v McCall, App. Div., 296 A.D.2d 815 

Firefighter Paul N. Vassello, claimed that he sustained injuries when he fell while descending from a fire truck in August 1998. He filed an application for performance of duty disability retirement benefits and, one month later, his employer filed an employer application for ordinary disability retirement benefits on his behalf.

The New York State Employees' Retirement System [ERS] rejected both applications. Vassello appealed but the ERS Hearing Officer upheld the Department's administrative denial of both applications, finding that Vassello was not permanently incapacitated from the performance of his duties as a firefighter. The Comptroller adopted the Hearing Officer's findings and Vassello filed an Article 78 action challenging the Comptroller's decision.

One of the points made by the Appellate Division was that the Hearing Officer considered the competing medical opinions offered by the experts testifying on behalf of Vassello and on behalf of ERS and resolved the conflict in favor of ERS. The court said that the Comptroller, in adopting the Hearing Officer's findings, was free to credit the testimony of one medical expert over that of another, citing Meegan v New York State Retirement System, 285 AD2d 892.

In the words of the court, if "the testimony offered by the Retirement System's expert constitutes substantial evidence to support [the Comptroller’s] determination, it will not be disturbed."

PEF announces contract vote count

PEF announces contract vote count

The New York State Public Employees Federation (PEF) at its press conference on Thursday, November 3, at PEF headquarters in Latham, announced that the results of the ballot count for the union’s revised tentative contract agreement with the State.

The vote count announced by AAA was:

27,718 in favor of the proposed contract;

11,645 opposed to the proposed agreement.

PEF is the state’s second-largest state-employee union, representing 55,000 State employees in the Professional, Scientific and Technical Services negotiating unit (PS&T) and other public and private employees.

All ballots were counted by the American Arbitration Association on Thursday morning, November 3, 2011 at the AAA offices in Manhattan.

As a result there will be no layoffs that would have otherwise taken effect on Friday, November 4, 2011.

PEF members rejected the initial propose agreement presented to them on September 27, 2011. The October 15, 2011 four-year revised proposed contract was accepted by the membership.

The text of the contract is posted on the Internet at:
http://www.pef.org/storage/files/tent_contract.pdf

Administrative Law Judge recommended dismissal of employee testing positive for marijuana

Administrative Law Judge recommended dismissal of employee testing positive for marijuana

NYC Fire Department v Rolling, OATH Index #1645/11

OATH Administrative Law Judge Alessandra F. Zorgniotti recommended termination of employment for an Emergency Medical Technician [EMT] who tested positive for marijuana in a random workplace drug test.

Although the EMT claimed that the positive test resulted from his consumption of vitamins that contain hemp-seed oil, there was no proof that he had consumed any substance that could trigger a false positive result.

Noting that “[i]nnocent ingestion is an affirmative defense that [the accused] must prove by preponderance of the evidence,” Judge Zorgniotti said that the EMT “could not identify anything he consumed that contained hemp-seed oil” at any time during the 24-hour period proceeding his being tested.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1615.pdf