Selecting from among conflicting medical opinions

Selecting from among conflicting medical opinions
Bell v NYC Employees’ Retirement System, 273 AD2d 119, Motion for leave to appeal denied, 96 NY2d 701

The New York City Employees’ Retirement System rejected the application for accidental disability retirement filed by Augusta Bell. Bell appealed, contending that the System’s decision was arbitrary and capricious.

The Appellate Division dismissed Bell’s petition, thus sustaining the Systems’ decision. The ruling points out that the System’s Medical Board found that Bell was not disabled while her personal physician had a conflicting opinion.

The court found that the Board’s determination was rationally based on its own examination of Bell. The fact that it chose to rely on the findings of its examiners rather than the conflicting reports of Bell’s physicians is not an indication of arbitrariness.

Testing for illegal drugs

Testing for illegal drugs
Wilson v White Plains, 95 NY2d 783

The Appellate Division reinstated Ian Scott Wilson to his position of firefighter with the City of White Plains. Wilson had been terminated after testing positive for large quantities of benzoylecgonine (a metabolite of cocaine) in his urine.

In annulling Wilson’s dismissal, the Appellate Division said that in directing [Wilson] to submit to blood and urine tests, the fire department officials relied upon an unsubstantiated and anonymous letter and that there was no objective evidence, which would have suggested that the [firefighter] was abusing alcohol or drugs.

The Court of Appeals reversed the Appellate Division’s decision noting that the parties agreed that a public agency may lawfully order an employee to submit to a drug test on reasonable suspicion of drug use.

The Court of Appeals found that the hearing officer concluded that the White Plains had reasonable suspicion to conduct the test, holding that the Appellate Division erred in concluding otherwise.

According to the decision, in addition to its receiving an anonymous letter concerning Wilson’s alleged use of drugs, the City presented evidence of Wilson’s physical manifestations of substance abuse the day he was tested, his long record of excessive absences, his prior substance abuse problems, his reputation for showing up at work under the influence, as well as his understanding that he could be tested if he showed any signs of recurring substance abuse.

The Court of Appeals then remitted the case to the Appellate Division for it to consider a number of Wilson’s contentions that it had not addressed when the case was initially argued before it in light of its ruling in this appeal.

Employer’s claim that a provision in the expired CBA was subject to a sunset provision in the absence of a successor agreement to go to arbitration

Employer’s claim that a provision in the expired CBA was subject to a sunset provision in the absence of a successor agreement to go to arbitration
Matter of Schuyler County v Schuyler County Highway Unit, Local 849, Unit 8600, AFSCME, CSEA Local 1000, 2011 NY Slip Op 00479, Appellate Division, Third Department

The parties entered into a collective bargaining agreement (CBA) for the years 2006-2009 that provided for a four-step grievance process, the third being advisory arbitration.

The CBA's compensation provisions included a clause specifying that employees would receive wage step increases every year, with the steps defined in a wage schedule showing the effect that annual base wage increases from 2006-2009 would have on them.

When a successor agreement negotiated in a timely fashion, Schuyler County declined to grant employees step increases in 2010. The County contended that the increases at issue “were not intended to continue beyond the term of the CBA”

Local 849 filed a grievance which was denied by the County. When the Local demanded that the grievance be submitted to arbitration the County filed an Article 75 petition seeking a court order staying arbitration.

Although Supreme Court granted the County’s petition, the Appellate Division reversed the lower court’s ruling.

The Appellate Division explained that the issue was whether the step increase provision of the CBA continued upon that agreement's expiration and, in that regard, Civil Service Law §209-a (1)(e) provides that an expired CBA's provisions will continue until a new agreement is negotiated unless those provisions create "rights which by their very terms were intended to expire with the agreement."*

The court said that there was neither law nor policy barring either party from submitting a question of contract interpretation regarding wages to arbitration, including the central issue in this action: "whether the CBA's language evinces an intent to an intent to 'sunset' the step increase provision."

Turning to the County’s argument that an arbitration award interpreting the CBA in such a way as to require post-expiration step increases would be violative of public policy, the Appellate Division said that "such a potential does not mandate a stay of arbitration.” The court said that should the County’s claim prove correct, the remedy is vacatur," citing Matter of County of Sullivan,** rather than a court order staying the arbitration.

* Section 209-a(1)(e) is the codification the Triboro Doctrine earlier promulgated by PERB.

** Sullivan County Empls. Assn., 235 AD2d at 750].

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00479.htm

Individuals receiving unemployment Insurance Benefits are ineligible to receive emergency unemployment compensation benefits

Individuals receiving unemployment Insurance Benefits are ineligible to receive emergency unemployment compensation benefits
Matter of Umpierre v Commissioner of Labor, 2011 NY Slip Op 00470, Appellate Division, Third Department

Jose A. Umpierre, received unemployment insurance benefits for a benefit year beginning in February 2008, which were paid for the full duration permitted (see Labor Law §§ 521, 590[4]). Umpierre then received emergency unemployment compensation (EUC) benefits.

EUC benefits are available to individuals who "exhausted all rights to regular compensation under the [s]tate law or under [f]ederal law with respect to a benefit year."*

At the end of his initial benefit year Umpierre reapplied for unemployment insurance benefits and was found to have a valid original claim that entitled him to renewed regular benefits, but at a rate substantially lower than he had been receiving in the previous year.**

The Unemployment Insurance Appeal Board, however, determined that Umpierre was not entitled to ongoing EUC benefits because of his renewed eligibility for "regular benefits."

Umpierre appealed the Board’s decision but the Appellate Division sustained the Board’s ruling, noting that “As a matter of federal law, federally funded EUC benefits are only available when a claimant's right to receive regular benefits under state law is exhausted.”

The Appellate Division explained that although Umpierre had “exhausted his right to regular benefits in the prior benefit year, he had renewed eligibility for benefits in the next, and the Board properly determined that he was not entitled to ongoing EUC benefits as a result.”

The fact that the new “regular benefits” were less than the amount that Umpierre had been initiallly receiving was apparently irrelevant insofar as his eligibility for EUC benefits were concerned.

* Public Law 110-252, Title IV, § 4001 [b] [1], 122 US Stat 2323.

** See Labor Law §527.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00470.htm