Sick leave and workers’ compensation

Sick leave and workers’ compensation

Robinson v NYC Department of Social Services, 266 A.D.2d 613

Ada Robinson, a stenographer/secretary, filed a claim for workers’ compensation benefits based upon work-related carpal tunnel syndrome. Although she “failed to file her claim” within the two-year period as required by Section 28 of the Workers’ Compensation Law, the Workers’ Compensation Board awarded her workers’ compensation benefits. The department appealed.

The department had continued Robinson on the payroll following her surgery to relieve her condition. The Board decided that this constituted an advance payment of wages within the meaning of Section 28, and held that the “limitations period” did not apply in her case.*

As Robinson “could have used sick leave” even if her condition had not been work-related, the department argued that she would have been paid regardless of the cause of injury and thus it had not made an advance payment.

The department’s personnel records, however, showed that Robinson had checked the disability box, not one of the sick leave boxes, on the “request for leave form” approved and signed by her supervisor. Also, her request for additional absence, also approved by her supervisor, included the notation “Workers’ Comp.”

Thus, said the court, the record supported the Board’s ruling that the department continued to pay Robinson in recognition of its workers’ compensation liability.

* Remuneration in the form of wages can constitute an advance payment where the payment is provided in recognition of workers compensation liability. In contrast, payments made regardless of the cause of injury do not constitute an advance payment.

Determining General Municipal Law Section 207-a benefits to be paid the individual after he or she retires

Determining General Municipal Law Section 207-a benefits to be paid the individual after he or she retires

Gresis v Fairview Fire District, Supreme Court, Justice Loehr, 15 Misc.3d 209

James J. Gresis is a retired Fire Captain receiving a performance of duty disability retirement allowance from the New York State Employees’ Retirement System plus a supplemental benefit pursuant to General Municipal Law Section 207-a(2) paid by Fairview. The Section 207-a supplemental benefit to be paid by Fairview is the difference between the amount of Gresis’ disability retirement allowance and the amount of “his regular salary and wages” until he reaches mandatory service retirement age, age 70.*

When Gresis commenced receiving his retirement allowance, the collective bargaining agreement (CBA) then in effect between the Fairview Fire Department and the Fire Fighters Association provided for a graduated salary structure for firefighters based on years of service. Further, Gresis’ “regular salary and wages” as a Captain was determined by applying a mathematical formula that provided Fairview Fire Captains with an annual salary that was 35% higher than the salary of a first-grade Firefighter.

In September 2002, all Captains, with the exception of Gresis, were reclassified Deputy Chiefs. Any Captain seeking to be appointed to this new title had to take and pass the Deputy Chief's examination. It appears that all Captains, with the exception of Gresis, took the Deputy Chief's examination and were appointed Deputy Chiefs.

Initially Fairport provided a Section 207-a supplement to Gresis based on a Captain's salary. However, commencing in mid-2006, Fairview reduced the supplement it had been paying Gresis to a lesser amount.

Gresis claimed that his supplement should be based on the compensation rate paid to Deputy Chiefs. The impact of this change in compensation, according to Gresis, was as though Fairport had demoted him from two grade levels above the Firefighter's grade to one grade above Firefighter’s grade. Fairview’s reduction of his supplementation to his retirement allowance, Gresis argued, violated General Municipal Law Section 207-a.

Fairport, on the other hand, maintained that it had continued to pay Gresis at the grade he retired at: Captain. It argued that any reduction in the amount of the supplement was the result of the reclassification and the new CBA, In effect, Fairport said that the pay rate for its Fire Captains at the time Gresis retired was now equal to the pay rate for its Fire Lieutenants. Thus, Fairport contended, it had not demoted Gresis but merely provided him with the supplement reflecting the change in the classification and allocation of his former position.

The court, citing Pease v Colucci, 59 AD2d 233,** rejected Fairview’s theory. It ruled that Section 207-a guarantees that any firefighter who suffers an employment-connected disability will receive his or her full annual wage “which shall not be interrupted or reduced in any respect except as based on the employee's own misconduct.”

The court decided that Fairport’s reduction of Gresis’ supplemental benefit from two grades above a Firefighter's to one grade above a Firefighter's was arbitrary and capricious and in violation of General Municipal Law Section 207-a(2).

* In Drahos v Village of Johnston City, 80 AD2d 100, the Court held that a firefighter injured in the line of duty and unable to return to work is entitled to the full amount of his regular salary until he returns, citing Section 207-a of the General Municipal Law. This, said the Drahos court, includes increases and adjustments received by firefighters in active status during the period of absence.

**  In Pease the Appellate Division ruled that once an individual became qualified for a Section 207-a benefit, the benefit continues until the individual recovers or reaches the mandatory age of retirement. The Pease case involved a Buffalo fire lieutenant who was "laid off" from his position while on Section 207-a leave. Lieutenant Pease’s position was abolished due to the City of Buffalo's financial difficulties. Buffalo then "reinstated" Pease to a firefighter position; reducing his Section 207-a supplement by calculating it on basis of a "firefighter's salary" rather than his previous salary as a lieutenant. This change, said the court, violated mandates set out in Section 207-a with respect to supplements to the retirement allowance to be paid to by the employer.

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Proceeding with disciplinary action in situations where disability may be a consideration

Proceeding with disciplinary action in situations where disability may be a consideration

Matter of Schlitz v Cavanagh, 14 Misc.3d 1213(A

The significant issue in the Schlitz case concerned the interplay of two different provisions of the Civil Service Law: (1) serving disciplinary charges against an individual pursuant to Section 75 and (2) Section 72, which is triggered in cases of an employee’s inability to perform the duties of the position because of non-work related disease or disability.

Essentially Section 72 provides for the placement of an employee on a leave because of a disability, other than a disability resulting from an occupational injury or disease, in the event it is determined that he or she is unable to perform the duties of the position satisfactorily because of that disability.

In Penebre v Dzaluk, 51 AD2d 574, the Appellate Division ruled that §75 charges for misconduct should not have been served on a police officer but that the employer should have proceeded under §72, Ordinary Disability Leave instead. Penebre, said the court, “had performed successfully as a police officer for 13 years before his behavior markedly changed.” He became depressed and inattentive. Under these circumstances, the Appellate Division said that serving Penebre with §75 charges for misconduct was misplaced.

Schlitz also was served with disciplinary charges pursuant to Section 75. Before the conclusion of the disciplinary hearing, however, Schlitz was placed on Section 72 -- non-occupational disability leave -- from his position.

A physician was employed by the Town and asked to determine whether or not Schlitz was suffering from a “mental health issue” that affected his ability to perform his duties satisfactorily. The physician’s opinion, “given within a reasonable degree of medical certainty,” was that "any past misbehavior on the part of Mr. Schlitz would not have been because of a psychiatric condition."

Ultimately, Schlitz was found guilty of various instances of misconduct and the penalty imposed was demotion.

Schlitz appealed but withdrew his claim regarding the Section 75 determination and penalty by conceding that there was substantial evidence to justify the findings of misconduct and the penalty imposed. Instead, Schlitz contended that the Town knew that he was suffering from depression and that the filing of disciplinary charges against him under these circumstances amounted to unlawful workplace discrimination against a person with a disability.

In addition, Schlitz argued that the Town was required to present the evidence of his depression in the §75 hearing as a defense or in mitigation of the misconduct charges.

Justice Mayer found that Town was within its rights to conduct the §72 proceeding and suspend the §75 hearing pending the results of Schlitz’s medical evaluation. Further, said the court, once the Town had evidence that the misconduct alleged in the §75 charges and specifications were not due to mental disability, it had the right to move forward under §75.

As to Schlitz’s claim that he was the victim of “unlawful workplace discrimination against a person with a disability,” the court said that the medical evidence in this case was that Schlitz’s acts of misbehavior were not caused by a psychiatric condition. Justice Mayer held that “there is no admissible proof that the petitioner is, or ever was, mentally disabled, and the claim of workplace discrimination perpetrated by the Town by bringing the charges of misconduct against an allegedly disabled person is, therefore, without merit.”

In contrast to discipline/termination procedures, the basic concept underlying the use of Section 72 in disability related situations is the separation/rehabilitation/reinstatement of the employee.

Section 72.1 sets out the procedures to be followed by the appointing authority before an employee may be placed on leave for ordinary disability involuntarily.

Section 72.3 describes the appeal procedures, including recourse to the courts pursuant to Article 78 of the Civil Practice Law and Rules, available to an individual involuntarily placed on disability leave following a Section 72.1 hearing.

Section 72.5 provides an exception to the basic requirement that a Section 72.1 hearing must be concluded before the employee may be placed on Section 72 disability leave involuntarily based on the appointing officer determination that there is a "potential danger" if the employee is permitted to continue on the job.

Section 73 of the Civil Service Law addresses the termination of an individual who has been continuously absent from his or her position on Section 72 leave for more than one year.

Third Circuit sustains employee's removal for lying about reason for absences

Third Circuit sustains employee's removal for lying about reason for absences

Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/

Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

John Prigge told Sears, his employer, that he was absent for two days to receive radiation treatment for prostate cancer.  In reality, Prigge suffered from bipolar disorder, which had been diagnosed several years earlier.  Prigge was subsequently absent for seven days during which he was admitted to a medical clinic suffering from depression.  On this occasion, Prigge advised Sears that his absence was due to incapacity and treatment for bipolar disorder.  He also confessed that his prior absence was not due to prostate cancer, but to bipolar disorder. 

Sears demanded that Prigge provide medical documentation substantiating his need for leave due to prostate cancer and bipolar disorder.  Prigge provided medical documentation substantiating his need for leave due to bipolar disorder.  He provided medical certification verifying that he did not suffer from prostate cancer.  Sears fired for failure to substantiate his need for leave with medical documentation due to prostate cancer, and for lying about his need for prostate cancer. 

The Third Circuit agreed with Sears.  It found, essentially, that Sears had the right to terminate Prigge for lying about his need for leave, and because he failed to substantiate that need with supporting medical documentation. 

Mr. Bosland Comments:  However awkward or embarrassing, employees need to tell their employers the real reason for their need for FMLA leave.  Courts have not allowed employees to tell their employer a false reason for the need for leave.  In addition to being truthful, had Prigge told Sears the real reason for the prior leave it would have likely been covered by the FMLA.  Courts have not excused employees from telling their employer the real reason for their need leave out of embarrassment or fear that the reason will be fodder for office gossip.  Nor have they looked past the false reason to find FMLA coverage based on the real reason for the leave.  Courts have consistently found that employers are entitled to the real reason animating the need for leave. 

Prigge v. Sears Holding Corp., No. 10-3397 (3d Cir. June 23, 2011).

Insurance to defend and indemnify offices and employees of a political subdivision of the State

Insurance to defend and indemnify offices and employees of a political subdivision of the State

Watkins Glen Central School District v. National Union Fire Ins. Co. of Pittsburgh, 286 A.D.2d 48

Sections 17 and 18 of the Public Officers Law provide for the defense and indemnification of public employees in connection with their official acts or their failure to perform an official act. Sometimes a public employer decides to purchase an insurance policy to protect itself in the event it is sued for its employees' alleged acts or omissions, official or otherwise.

The Watkins Glen Central School District purchased an “errors and omission” insurance policy from National Union Fire. When the District asked to Company to defend and indemnify it in connection with another law suit, Dean v Watkins Glen Central School District, [Western District of New York, Civil Action No. 98-CV-0362C], National Union said it was not obligated to defend and indemnify the District under the terms of the policy.* The District sued National, seeking a court order declaring that the insurance company was obligated to defend and indemnify it in connection with the Dean action.

In Dean, the plaintiff alleged that the District was negligent in its hiring and supervision of a teacher with a history of sexual misconduct with students. Did this mean that National Union could disclaim coverage under the exclusion for intentional acts set out in the policy it issued to the District?

The Appellate Division said that National Union could not disclaim coverage, finding that “to permit the insurer to do so would wholly vitiate coverage and frustrate the reasonable expectations of the insured, contrary to the parties' unambiguous intentions.”

Accordingly, ruled the court, under the circumstances of this case, Watkins Glen is entitled to be defended and, if need be, indemnified by National Union Fire as a matter of law.

Significantly, National Union claimed that coverage for damages arising from the teacher’s alleged sexual misconduct was expressly foreclosed pursuant to the unambiguous language of the assault and battery and bodily injury/emotional distress exclusions set out in the District's policy. The District, on the other hand, offered parole evidence that the parties had purposely negotiated for the elimination of a provision within the policy that would have expressly excluded coverage for sexual molestation.

The Appellate Division said that an understanding of the type of insurance policy involved was critical to correctly deciding the appeal. An errors and omissions policy is not a standard general liability policy but rather “is intended to insure a member of a designated calling against liability arising out of the mistakes inherent in the practice of that particular profession or business” other than those engaged in the legal and medical fields.

The Appellate Division ruled that National Union's errors and omissions policy was intended to cover the District's negligence in its rendering of professional services. Such coverage, said the court, undeniably includes negligence in the hiring and supervision of employees. Finding “no direct controlling authority to the contrary from any New York court precluding such errors and omissions coverage in a case such as this,” the Appellate Division said that it was persuaded that “National Union is indeed obligated to provide the School District with defense and indemnification for its potential liability for its alleged professional malpractice.”

* In the Dean case it was alleged that the District was negligent in connection with its hiring, supervision, and retention of a teacher. The teacher was reportedly convicted in Pennsylvania in 1974 of sex crimes he committed in the course of his employment as an elementary school teacher and Dean alleged that the teacher committed criminal acts of sexual abuse as against the Dean infant plaintiffs while in the employ of the District.