Determining the disability benefits due a firefighter as the result of a work-related injury can be complex

Determining the disability benefits due a firefighter as the result of a work-related injury can be complex

McKay v Village of Endicott, 2016 NY Slip Op 02129, Appellate Division, Third Department

The Appellate Division, in considering the Village of Endicott’s appeal of  decisions made by Supreme Court that awarded firefighter Joseph W. McKay certain disability benefits, set out  basic procedural guidelines with respect to determining a firefighter's eligibility for benefits available pursuant to General Municipal Law §207-a in the event he or she disabled as the result of a "line-of-duty" injury:

1. In the event a firefighter claims that he or she suffered a disability in the performance of his or her duties, the employer makes the initial determination as to the employee’s fitness to return to full-duty or restricted/light-duty work based on the opinion of a physician it appointed to medically examine the firefighter.

2. The County has the right to make this initial determination without holding a hearing or initiating any type of proceeding.

3. In the event the employer determines that the firefighter is fit to return to full-duty or restricted/light duty, the firefighter may challenge the employer’s determination.

4. Should the firefighter challenge the employer’s decision, he or she is entitled to a hearing during which he or she may be represented by counsel and an opportunity to contest the employer's medical examiner's conclusion by submitting his own evidence, including the opinion of his personal physician and other medical experts.

5. The hearing officer weighs any conflicting medical opinions to arrive at his or her determination whether or not the firefighter is capable of returning to full-duty or restricted/light-duty work.

With these guidelines in mind, the significant events in the MacKay case are as follows:

McKay, employed by the Village as a firefighter, sustained a work-related injury in 2008 and obtained workers' compensation benefits. He was also granted disability benefits pursuant to General Municipal Law §207-a(1) by the Village.

The Village subsequently discontinued McKay’s GML §207-a(1) benefits. 

McKay, however, was latter found eligible for such GML §207-a(1) benefits but, prior to that determination being promulgated, McKay commenced receiving performance of duty disability retirement benefits from the New York State and Local Police and Fire Retirement System. As a result, McKay was no longer eligible for GML §207-a(1) disability benefits.

McKay then sought post-retirement supplemental benefits payments from the Village that were available pursuant to GML §207-a(2). The Village denied his application and McKay initiated a CPLR Article 78 proceeding. 

In 2012, Supreme Court granted McKay’s petition in part and directed the Village to pay McKay GML §207-a(2) benefits retroactive to the effective date of his performance of duty disability retirement in 2010, "pending a determination consistent with due process" as to whether GML §207-a(2) supplemental benefits should be terminated.

The Village appealed the Supreme Court's 2012 judgment. While that appeal was pending, McKay submitted a proposed judgment to Supreme Court that would award him a set amount in retroactive benefits. While the parties were arguing over the court’s issuing a new judgment and the correct amount of retroactive benefits to be awarded, the Appellate Division affirmed the Supreme Court's 2012 Article 78 decision, (see 113 AD3d at 991-993). 

In February 2014 Supreme Court issued a judgment that awarded McKay $67,830.69 in retroactive benefits, interest and costs. The Village appealed the Supreme Court’s 2014 ruling.

The Appellate Division, however, limited the Village’s appeal of the Supreme Court's 2014 ruling to the Village's claim that Supreme Court had erred in calculating the amount of retroactive benefits the court awarded to McKay in its 2014 judgment. 

The Appellate Division agreed with the Village's contention that the lower court had erred in calculating "retroactive benefit," holding that “the award of retroactive benefits cannot stand.” 

The court explained that although the Village was not required to pay McKay his full salary as of the date that he was granted performance of duty disability retirement benefits, he was entitled to the difference between the amounts received as his retirement allowance and the amount of his regular salary or wages that he would have otherwise received had he not retired from the Village "until such time as he shall have attained the mandatory service retirement age applicable to him or shall have attained the age or performed the period of service specified by applicable law for the termination of his service."

The Appellate Division also said that Supreme Court’s 2012 judgment, and its affirming thereof, “make clear that [McKay] was entitled to receive the benefits afforded by GML §207-a(2) until a due process hearing could be conducted to determine whether those benefits should be terminated.”

Although Supreme Court’s 2014 judgment correctly required the Village to pay McKay benefits retroactive to the date of his 2010 retirement, and Supreme Court acknowledged that those benefits must be "reduced by the amount of the [workers' compensation] benefits" that McKay received as a result of his 2008 injury, the Appellate Division noted that Supreme Court did not "factor in the receipt" of the workers' compensation benefits received by McKay in making its award “due to a  lack of proof to establish the offset amount” and directed the Village “to seek redress in whatever forum it deems appropriate."

Agreeing that the proof presented concering the amount of the offset was "meager," the Appellate Division said that the award was premature without considering this “offset” and rather than require the Village to undertake “piecemeal efforts” to establish the appropriate offset amount, it remitted the matter "to Supreme Court for the holding of a hearing, without delay, at which the parties may present proof relative to . . . [the Village’s] entitlement to an offset" in consideration of the workers’ compensation benefits paid to McKay."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02129.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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Name clearing hearings

Name clearing hearings

Chang v Department of Educ. of the City of New York, 2016 NY Slip Op 02018, Appellate Division, First Department

The New York City Department of Education [Department] terminated Tzefang Frances Chang’s contract as a bilingual speech pathologist. Chang brought an Article 78 action challenging the Department’s action.

Supreme Court dismissed Chang’s petition after finding that the agreement between the Department and Chang gave the Department “the unconditional right to terminate the contract without cause and that such contract termination clauses are enforceable.”*In addition, the court said that the Department was not required to accept Chang's claims concerning the events that triggered the Department’s action. The Appellate Division sustained the lower court’s ruling.

Another element in this action concerned Chang’s demand for a “name-clearing hearing.” The Appellate Division held that Chang was not entitled to a name-clearing hearing as she presented no evidence to refute the statements of the Department’s Director of Employee Relations that “the code” placed on Chang's personnel file was for internal use only, and therefore she failed to show a likelihood of public dissemination of the material she alleged was “stigmatizing.”

In Swinton v Safir, 93 NY2d 758, the Court of Appeals held that with respect to an employer providing a former employee with a “name clearing hearing,” the material in the individual’s personnel records objected to must be “stigmatizing in the constitutional sense,” and not merely charges of “individual or isolated instances of bad judgment or incompetent performance of duties.” Further, the individual seeking such a hearing carries the burden of proof and must show the “stigmatizing nature” of the information and its publication to the public.

Courts have held that the internal disclosure of allegedly stigmatizing reasons for the discharge or demotion of an employee to the individual and, or, to agency administrators “having a right to know” does not constitute a public disclosure of such information and thus a name-clearing hearing" is not required because of such intra-agency communications.

In any event, a name clearing hearing serves only one purpose - to provide the individual with an opportunity to clear his or her “good name and reputation” in situations where he or she alleges that information of a stigmatizing nature has been made public by his or her former employer. Prevailing at a name-clearing hearing does not entitle the individual to reinstatement to his or her former position.

* Presumably an employer’s “unconditional right” to terminate a contract employee would not extend to insulating the employer from liability if it terminated the individual for a constitutionally impermissible reason or purpose.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02018.htm

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html 

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Selected reports issued by the Office of the State Comptroller during the week ending March 26, 2016

Selected reports issued by the Office of the State Comptroller during the week ending March 26, 2016

Click on text highlighted in color to access the entire report 

Municipal Audits released:

Town of Hempstead Sanitary District No. 1 - Selected Financial Activities 

Niagara Falls Water Board – Financial Management 

City of Olean – Procedures Related to Obligations to Fund Operating Deficits 

School Audits released: 

Burnt Hills-Ballston Lake Central School District – Leave accruals and separation payments 

Ellenville Central School District – Financal Condition 

Lake Pleasant Central School District - Payroll 

Mount Pleasant-Blythedale Union Free School District – Short-Term Borrowing and Purchasing 

Pelham Union Free School District – Reserve Funds 

Mobil must include Climate Change Resolution in Shareholder Vote
Comptroller Thomas P. DiNapoli, as Trustee of New York State Common Retirement Fund, and the Church of England co-filed a shareholder proposal at ExxonMobil in December, asking the company to assess how the worldwide effort to rein in global warming would impact its business. In response, ExxonMobil sought clearance from the Securities and Exchange Commission (SEC) to block DiNapoli’s proposal from a shareholders’ vote at its annual meeting. Wednesday, the SEC rejected that request.

http://www.osc.state.ny.us/press/releases/mar16/032316c.htm?utm_source=weekly+news&utm_medium=email&utm_term=corporate+governance&utm_content=20160327&utm_campaign=pension+fund 

Agreements reached on Corporate Political Spending
New York State Comptroller Thomas P. DiNapoli announced that five Fortune 500 companies – Coca-Cola Enterprises, Raytheon, Waste Management, Union Pacific and Centerpoint Energy – have agreed to the New York State Common Retirement Fund’s request that they publicly report all direct and indirect corporate political spending.

http://www.osc.state.ny.us/press/releases/mar16/032316c.htm?utm_source=weekly+news&utm_medium=email&utm_term=corporate+governance&utm_content=20160327&utm_campaign=pension+fund