Filing a timely notice for disability retirement benefits critical to eligibility for such benefits

Filing a timely notice for disability retirement benefits critical to eligibility for such benefits

Wilson v NYSERS, 288 AD2d 602

Theodore J. Wilson neglected to file the written notice required by Retirement and Social Security Law [RSSL] Section 363-c (e) (a) in order to claim accidental disability retirement benefits. As a result, the Retirement System rejected his application for such benefits.

Wilson appealed, arguing that he had provided the required notice because he had filed Workers' Compensation claims, which was an option available to him, citing RSSL Section 363-c [e] [b] [1].

Unfortunately, this did not offer a solution to Wilson’s problem because Wilson had not filed his written claim for workers' compensation benefits within the 30-day period provided by Workers' Compensation Law Section 18.

While Wilson had apparently gave oral notice of the occurrence and thereby provided the employer with actual knowledge of the occurrence within the 30-day period, which would be sufficient to permit the Workers' Compensation Board to excuse the lack of timely written notice, the Appellate Division, citing Spahn v Regan, 163 AD2d 642, said:

This court has repeatedly stated that a decision of the Workers' Compensation Board to excuse a petitioner's failure to comply with the provisions of Workers' Compensation Law Section 18 is not binding upon respondent [Comptroller] for accidental disability retirement purposes and does not alter the fact that timely notice of the compensation claim was not given.

 

The Appellate Division said that it found no reason to deviate from this holding notwithstanding the fact that Wilson's application was for performance of duty disability retirement benefits.

The lesson here: It is essential that the individual file the required Section 363-c (e) (a) notice with the Retirement System in a timely fashion.

Freedom of Law only applies to public entities

Freedom of Law only applies to public entities

McBride v Franklin, 288 AD2d 130

The McBride decision demonstrates that only a public entity is subject to the provisions of New York States' Freedom of Information Law [FOIL], (Section 84, Public Officers Law).

Nathan McBride filed a petition in a New York State Supreme Court in an effort to compel Jessie T. Franklin to disclose certain information that McBride contended FOIL required be made available to the public. When the Supreme Court dismissed his petition, McBride appealed, only to have the Appellate Division affirm the lower court's determination.

The Appellate Division pointed out that McBride's petition was properly dismissed since Franklin, a private investigator hired by McBride's attorneys in a criminal manner, is not an “agency” subject to FOIL's disclosure requirements and thus there was no authority for a court directing that Franklin provided the information McBride had demanded.

Workers’ compensation and Section 207-a/207-c disability claims

Workers’ compensation and Section 207-a/207-c disability claims

Balcerak v Nassau County, Ct. of Appeals, 93 NY2d 808

If a police officer is awarded workers’ compensation benefits before his or her employer decides whether or not he or she is eligible for disability benefits under Section 207-c of the General Municipal Law, may the appointing authority still deny the individual’s application for Section 207-c benefits? Yes, said the Court of Appeals, in a unanimous opinion, reversing a decision by the Appellate Division to the contrary.

Until this ruling, various appellate division and Supreme Court decisions held that the employer was prevented from rejecting the police officer’s Section 207-c claim under such circumstances under the doctrine of collateral estoppel. In fact, one Supreme Court justice recently ruled that the mere filing of a workers’ compensation claim by the employer, which it was mandated to do by law, prevented it from denying the individual’s Section 207-c application.

In Balcerak, the Court of Appeals concluded that Gregory Balcerak, a Nassau County corrections officer was not automatically entitled to Section 207-c benefits simply because the Workers’ Compensation Board had determined that he had suffered a work-related injury and that the doctrine of collateral estoppel did not apply in such cases.*

Balcerak had been injured in an automobile accident in June 1996, just after leaving from his assignment to special duty on the “midnight shift.” Nassau rejected his application for Section 207-c benefits for his “injury sustained while on duty form” on September 9, 1997. The Workers’ Compen­sation Board, however, had approved Balcerak’s application for workers’ compensation benefit before the county had made its determination.

Balcerak sued, demanding that Nassau provide him with “Section 207-c benefits, retroactive to the date of the accident.

A Supreme Court justice concluded that the Nassau was bound by the Workers’ Compensation Board’s finding that Balcerak was injured while on duty. The Appellate Division affirmed, agreeing that the collateral estoppel doctrine applied against the County.

The Court of Appeals reversed, holding that the Workers’ Compensation Law and the General Municipal Law are discrete, independent compensation systems and that a favorable Workers’ Compensation determination does not, therefore, automatically entitle an employee to the special benefits provided by Section 207-c.**

According to the ruling, the Workers’ Compensation Board’s determination does not automatically preclude a municipality’s discrete decision on a General Municipal Law Section 207-c application. The distinction between the two laws made by the Court of Appeals:

1. Section 207-c benefits were meant to fulfill a narrow and important purpose ... to compensate specified municipal employees for injuries incurred in the performance of special work related to the nature of heightened risks and duties.***

2. Workers’ Compensation is a general and comprehensive social program designed to provide all injured employees with some scheduled compensation and medical expenses, regardless of fault for ordinary and unqualified employment duties.

In view of this ruling, it appears that in evaluating a claim for Section 207-c benefits, the appointing authority should:

1. Determine if an individual is unable to perform the duties of his or her position because of a disability.

2. If it is determined that the individual is disabled, was the individual disabled as the result of a work-related injury or disease? If the answer is no, the individual is probably eligible for disability leave pursuant to Section 72 of the Civil Service Law.

3. If it is determined that the individual was disabled on the job, was the injury or disease at work incurred in the performance of “official duties” as a police officer? If the answer is no, the individual is probably still eligible for leave pursuant to Section 71 of the Civil Service Law, Workers’ Compensation Leave.

4. If it is determined that the individual was disabled as a result of his or her performing “official duties,” he or she is presumably eligible for Section 207-c benefits as provided by law.

Some collective bargaining agreements negotiated pursuant to the Taylor Law set out procedures for the processing of Section 207-c applications.

* Although this case concerned Section 207-c, which covers police officers, while Section 207-a of the General Municipal Law applies to firefighters injured in the line of duty, the rationale adopted by the Court of Appeals in making its determination would probably be followed in a similar Section 207-a case.

** This decision did not end the matter regarding Balcerak’s eligibility for 207-c benefits. The Court of Appeals said that its ruling “resolves only the collateral estoppel issue....” The other issue in this action -- did Nassau have “a rational basis for its decision denying Balcerak Section 207-c benefits,”, had not yet addressed by the Appellate Division. Accordingly, the case was returned to the Appellate Division for its consideration of this issue.

*** N.B. Subsequently the Court of Appeals revisited and clarified its view regarding the availability of Section 207-c benefits based on a perception of “heightened risks and duties,” holding that “[I]n order to be eligible for Section 207-c benefits, a covered municipal employee need only prove a ‘direct causal relationship between job duties and the resulting illness or injury’.” (see Matter of Theroux v Reilly, 1 NY3d 232 

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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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Activities by teachers in the course of collective bargaining are not protected activities within the meaning of the Taylor Law when such activities place students at risk

Activities by teachers in the course of collective bargaining are not protected activities within the meaning of the Taylor Law when such activities place students at risk

Lucia v Board of Educ. of the E. Meadow Union Free School Dist., 2011 NY Slip Op 51210(U), Supreme Court, Nassau County, Judge Vito M. DeStefano, Not selected for publication in the Official Reports.

Although teachers of the Woodland Middle School of the East Meadow Union Free School District were provided with their own parking spaces on school property, one day several teachers parked their cars along the curb in front of the school, an area designated as the schools student "drop off" area, in an effort "intended to achieve a new collective bargaining agreement." 

East Meadow, alleging that because of rain, heavy traffic, and the presence of parked cars at both the curbs in front of the school, parents were forced to drop off their children in the middle of the street, filed disciplinary charges against Barbara Lucia and three other teachers who allegedly parked their cars along the curbside on that day.

Following the resulting disciplinary hearing, the Hearing Officer ruled that the District had sustained its burden of proof on the charges filed against the teachers.Noting that protected union activity may lose its status by the manner in which it was conducted, the Hearing Officer ruled, in relevant part that:

“Based upon the finding that [her] actions created a safety hazard for the children, I do not find that [her] actions . . . were protected activity. . . . It is foreseeable that where so many cars are parked at that location it would delay the drop off of students … Albeit a lapse in judgment, [Lucia's] actions took place outside the school, and there is no evidence that they had any impact on her role as a teacher with considerable experience. A fine of one thousand ($1,000) dollars should serve to remind her that her actions that morning were inappropriate.

Lucia filed a petition pursuant to CPLR 7511 seeking an order vacating the decision of the Hearing Officer on the grounds that it was "irrational, arbitrary and capricious, and not based upon adequate or substantial evidence, in violation of public policy and not in accord with due process."

Noting that Education Law §3020-a(5) provides that an employee seeking to modify or vacate a hearing officer's determination is limited to the grounds set forth in CPLR 7511 or if it is clearly violative of a strong public policy, Judge DeStefano ruled that the Hearing Officer's determination did not violate a strong public policy and, further, was not totally or completely irrational, and did not exceed a specific enumerated limitation of the Hearing Officer's power. 

As to the “public policy exception, Judge DeStefano explained that although Lucia, and similarly situated teachers, have a constitutionally protected right to engage in union activity, the scope of the public policy exception is "extremely narrow … and the exercise of teachers' free assembly and speech rights are circumscribed to the extent that such exercise endangers the safety of children.”

As to Lucia’s argument that the Hearing Officer’s decision was totally irrational or that it otherwise exceeded his authority, Judge DeStefano said that “when reviewing compulsory arbitration in education proceedings, the court should accept the arbitrator's credibility determinations, even where "room for choice exits.” Here, said the court, there was testimony from which the Hearing Officer could reasonably conclude that “Lucia parked her car on the street as part of a demonstration calculated to disrupt the student "drop-off" area and which created a safety hazard to the children.” 

Judge DeStefano dismissed Lucia’s petition seeking an order vacating the determination of Hearing Officer.

The decision is posted on the Internet at:

 http://www.courts.state.ny.us/reporter/3dseries/2011/2011_51210.htm

No FMLA protections based on incomplete medical certification

No FMLA protections based on incomplete medical certification

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.

Janet Lewis was employed as a civilian in the Air Force as Director of the Elmendorf Air Force Base Child Development Center.  She requested 120 days of FMLA leave due to her own serious health condition. The Agency required Lewis to support her request for leave with the WH-380 medical certification form.  Lewis had her doctor fill out the form, which she submitted in support of her leave request. At the same time, she submitted a prescription from her doctor, and a 2006 letter from another doctor.  Kathleen DeShasier, Lewis's supervisor, told her the documents she submitted were insufficient to support her request for FMLA leave.  Lewis refused to submit more information, believing that she had provided all the information necessary under the FMLA.  When she failed to show up for work, the Agency fired her AWOL.  She appealed her removal through the administrative and federal district court, without success. 

Before the Ninth Circuit, Lewis argued that the documents she submitted provided sufficient medical facts to support the conclusion that she suffered from an FMLA-covered serious health condition. The Ninth Circuit disagreed.  Lewis's WH-380, the court observed, "states only that she was diagnosed with Post-Traumatic Stress Disorder and needed therapy, medical treatment, bed rest, two prescriptions medications, and 120 days off work." 

Significantly, the Court found that the WH-380 form was incomplete because it failed to-

1. provide a summary of the medical facts that support the diagnosis;

2. contain an explanation as to why Lewis was unable to perform her work duties; and

3. address what additional treatments would be required for her condition.

The   rejected Lewis's alternative argument that she submitted adequate medical documentation to the HR department in support of her workers’ compensation claim. 

Along with her OWCP claim, Lewis did, the Court found, submit medical documents and a detailed diagnosis.  

However, Lewis did not deliver the OWCP documents to her supervisor. Instead, she specifically requested that the HR department keep her medical records confidential and out of her supervisor's hands.  In so doing, the Court essentially found that Lewis could not rely on her OWCP documents as a way to supplement her incomplete WH-380.

Mr. Bosland Comments:  To substantiate an employee's request for serious health condition FMLA leave, an employer may require the employee to submit a complete medical certification.  The permissible content of that certification is governed by federal regulations.  To determine whether the leave is covered by the FMLA, an employer may not require an employee to provide more medical information than is permitted by law.  While an employer may voluntarily agree to accept a medical certification with less medical information than permitted  (employers are not mandated to require any medical certification), they are perfectly within their rights to insist that they receive a complete medical certification. 

Some employee's are very reluctant to disclose their medical condition to their supervisor or employer when requesting leave.  They fear that their highly confidential medical information will "get out" and become fodder for the office rumor mill.  These employees tend to offer sparse medical certifications.  These certifications may even have something written in every area of the WH-380 form, but the information provided is either incomplete or useless.  When offered the chance to submit additional information, these employees, like Lewis, often refuse.   

Employees who refuse to provide additional information run the considerable risk of losing FMLA protections.  As with Lewis, employees who forge ahead and take the leave anyway in the belief that they did provide a complete medical certification, and that the employer is wrong, run the considerable risk of being disciplined for AWOL.  Before risking your job, employees better be certain that they are right and their employer is wrong on this issue.  Check with your union, the US Department of Labor, or an attorney. 

Note that the Court rejected Lewis's argument that she satisfied her FMLA medical certification by providing additional medical information to the HR department as part of the OWCP claim. While the Court did not spell it out, the implication is that she was required to submit her FMLA request to her supervisor, not the HR department.  Moreover, she specifically asked that her OWCP medical documents be kept confidential including from her supervisor. 

Providing medical information, but not to the right person or office, is another (failed) tactic frequently used by employees who don't want to disclose information to their supervisor even though that is what may be required by the employer's policy.  For example, as in Lewis, employees will send their medical documentation to a medical or OWCP unit with confidentiality restrictions, and then claim that they satisfied the FMLA because they provided the certification to their employer writ large.   

Where the employer has a policy or practice requiring the employee to request leave and provide supporting medical certification through the immediate supervisor or a specified office, providing the medical documentation to some other unit of the employer will not secure the protections of the FMLA.  Courts have not allowed employees to game the system by providing supporting medical documentation to someone within the company, but outside of the policy or practice.   

Lewis v. USA, No. 10-35624 (9th Cir. May 26, 2011), http://www.ca9.uscourts.gov/datastore/opinions/2011/05/26/10-35624.pdf