Statutory presumption that an individual suffered a disease of the heart as a result of the performance of duty rebutted by medical evidence to the contrary

Statutory presumption that an individual suffered a disease of the heart as a result of the performance of duty rebutted by medical evidence to the contrary
Lawless v DiNapoli, 56 AD3d 1114

A member of the New York State Employees’ Retirement System [NYSERS] applied for performance of duty disability retirement benefits alleging that he was permanently incapacitated as the result of a heart attack he suffered approximately six months earlier. The member filed his application relying upon the statutory presumption contained in Retirement and Social Security Law §507-b(c).

§507-b(c) provides that “…any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a member covered by this section, presently employed and who shall have sustained such disability while so employed, who successfully passed a physical examination on entry into service as a correction officer or security hospital treatment assistant, which examination failed to disclose evidence of any disease or other impairment of the heart, shall be presumptive evidence that it was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.”

NYSERS conceded that the individual was permanently incapacitated from the performance of his duties, but decided that his disability was not sustained as a result of the discharge of his duties as a correction officer and rejected his application for line-of-duty disability benefits. The Hearing Officer upheld the denial, concluding that the proof submitted by the Retirement System was sufficient to rebut the statutory "incurred in the line of duty presumption" set out in Retirement and Social Security Law §507-b(c).

The Appellate Division, noting that the Retirement System did not dispute that the member had successfully passed his pre-employment physical or that he is now permanently disabled from performing his duties as a correction officer due to his heart attack and underlying coronary artery disease, said that because the applicant elected to rely upon the statutory presumption contained in §507-b(c), the issue to resolve was whether the Retirement System had rebutted this presumption with competent medical evidence.

The court said that its conclusion, after its review of the record as a whole, was that the Retirement System successfully rebutted the statutory presumption and thus properly rejected the member’s application for benefits.

The full text of the decisions is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09335.htm

The duties and responsibilities of the position control with respect its classification and allocation to a salary grade

The duties and responsibilities of the position control with respect its classification and allocation to a salary grade
Matter of Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO v State of New York Unified Court System, 55 AD3d 1070

Following the reallocation of positions previously titled "Hearing Examiner" to “Support Magistrates, JG-31” and the adoption of a new title standard, individual Support Magistrates and the labor union representing them [petitioners], commenced a proceeding seeking to rescind the allocation of the title to JG-31, and place the Support Magistrate title in a higher salary grade -- JG-33. The title change and level of compensation had been determined by the Chief Administrative Judge.

Supreme Court concluded that the classification of the position and its allocation to JG-31 had a rational basis, was not arbitrary and capricious and dismissed the petition. The Appellate Division affirmed Supreme Court’s determination.

In the course of the proceeding the Administrative Director of the Unified Court System submitted an affidavit in support of the classification of the position and the allocation of the title Support Magistrates to JG-31 in which he stated that the allocation of the Support Magistrate title to salary grade JG-31 was based upon the Chief Administrative Judge's finding that duties, responsibilities and functions of Support Magistrates are comparable to those of Court Attorney-Referees. Court Attorney-Referees act as special referees in a number of courts, including Family Court, and are also allocated to grade JG-31.

In addition, the Administrative Director said that “Court Attorney-Referees, when authorized by a Family Court judge and upon consent of the parties, perform the same quasi-judicial functions that Support Magistrates do and in the same court both conduct trials, take evidence and issue orders, including orders of protection.”

Conceding that the reasons underlying the determination, are "facially legal," the petitioners argued that the two titles are not comparable because a Support Magistrate is directly empowered by statute to decide certain issues while a Court Attorney-Referee has no original jurisdiction conferred by statute and the Court Attorney-Referee must be appointed by a court to hear and report or, with the consent of the parties, hear and determine, the issues.

The Appellate Division was not persuaded by the petitioners’ argument, ruling that “the difference in the origin of authority to entertain issues does not contradict [the Chief Administrative Judge’s] conclusion that the duties, responsibilities and functions of the two titles are similar.” In other words, it is the duties and responsibilities of the position that are controlling in classifying the position and allocating it to a salary grade, not the source of the authority that the incumbent of the title exercises.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08043.htm

 

Reports from the Office of the State Comptroller

Reports from the Office of the State Comptroller

For the week of June 11 - 17, 2012

Forensic Audit Reveals Metro–North Employees Were No Shows

Metro–North Railroad employees that were supposed to monitor train conditions and crew performance were not on the job when they were scheduled to work and performed poorly when they were, according to an audit released Friday by New York State Comptroller Thomas P. DiNapoli. Auditors and investigators also found that a relative of a manager was hired at an inflated salary over other more qualified employees, a possible violation of the New York State Public Officers Law.

DiNapoli: State Agencies’ Late Approvals of Contracts with Not–For–Profits Rose to 80 Percent Last Year

State agencies were late more than 80 percent of the time in approving contracts subject to the Prompt Contracting Law with not–for–profit providers last year, according to a report released Thursday by State Comptroller Thomas P. DiNapoli. This prompted interest payments that cost taxpayers nearly $200,000, the report found.

DiNapoli: Auditors Blocked $61.5 Million in Erroneous Workers’ Compensation Payment Requests

Auditors uncovered $61.5 million in erroneous workers’ compensation payment requests, according to a report released Thursday by New York State Comptroller Thomas P. DiNapoli. The 2011 year–end report details errors caused by improper data entry or computation, among other reasons. After discussions with the Comptroller’s Office, the Workers’ Compensation Board made improvements which reduced the improper payment rate by 17 percent in November and December of 2011.

Comptroller DiNapoli Releases School Audit

New York State Comptroller Thomas P. DiNapoli announced his office completed an audit of the Hoosick Falls Central School District.

Comptroller DiNapoli Releases Municipal Audit

New York State Comptroller Thomas P. DiNapoli announced his office completed an audit of the City of Syracuse.

An employer may find that firefighter’s disability was not the result of a work-related injury or disease not withstanding the Retirement System’s decision to the contrary

An employer may find that firefighter’s disability was not the result of a work-related injury or disease not withstanding the Retirement System’s decision to the contrary

Davenport v City of Mount Vernon, 2012 NY Slip Op 04744, Appellate Division, Second Department

The City of Mount Vernon Fire Commissioner adopted the recommendation of a hearing officer denying a firefighter’s application for supplemental benefits otherwise available pursuant to General Municipal Law §207-a(2).* The Appellate Division confirmed the Commissioner’s decision, commenting that it was supported by substantial evidence.

The court said that the record contains evidence consisting of the reports of three orthopedic surgeons, each of whom concluded that the firefighter's condition was not caused by an accident, explaining that the Commissioner had the authority to evaluate conflicting medical evidence, and was free to credit evidence based on reports of one set of physicians over that of another set of physicians.

In Cook v City Of Utica, 88 NY 2d 833, the court ruled that while a disabled firefighter's Section 207-a benefits may depend in part on benefits paid pursuant to RSSL Section 363-c, there is no specific statutory language or anything in the legislative history concerning these measures suggesting that the Comptroller's eligibility determination with respect to RSSL benefits precluded the municipal employer from making a separate, and, as here, contrary determination with respect an individual's eligibility for GML Section 207-a benefits. Accordingly, the employer could deny granting the firefighter supplemental benefits to his or her disability retirement allowance upon a finding that the disability was not the result of a work-related injury or disease that was supported by substantial evidence.

Similarly, in Balcerak v Nassau County, 94 NY2d 25, the Court of Appeals said that "[a] determination by the Workers' Compensation Board that an injury is work-related does not by operation of collateral estoppel, automatically entitle an injured [police] officer to General Municipal Law Section 207-c benefits."

Accordingly, an employer was not precluded from determining that an individual was not entitled to Section 207-c benefits despite a prior Workers' Compensation determination in an employee had suffered an "on-the-job" injury.

* The amount of the supplement that would be paid the disabled firefighter pursuant to §207-a(2) would the difference between his or her retirement allowance and the compensation he or she would have received in active service, payable until the firefighter's mandatory age of retirement.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04744.htm

Removal of an officer of a political subdivision of the State for misconduct, maladministration, malfeasance or malversation in office

Removal of an officer of a political subdivision of the State for misconduct, maladministration, malfeasance or malversation in office
Matter of Hedman v Town Bd. of Town of Howard, 56 AD3d 1287

§36 of the Public Officers Law provides for the removal of an officer of a town, a village, an improvement district or a fire district, [other than a justice of the peace], found guilty of misconduct, maladministration [performing official duties corruptly or inefficiently], malfeasance [performing official duties inadequately or poorly], or malversation [misuse of public or other funds] while holding public office.

In this action it was alleged that a member of the Town Board attempted to conceal his relationship with an alternate energy company, and ignored an alleged conflict of interest that arose when he voted to approve a wind energy facility proposed by company that included installing a wind turbine on the Board member’s property.

The Appellate Division, citing Jones v Filkins, 238 AD2d 954, said that the removal of an official from office pursuant to Public Officers Law §36 "generally will not be granted absent allegations of self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust[,]” while allegations of  “minor neglect of duties, administrative oversights, or violations of law do not, in general, warrant removal."

The court decided no an actual conflict of interest that would warrant the removal of the Board member had been shown, explaining that the submitted evidence in support of the alleged conflict of interest that consisted solely of company's proposal for a wind energy facility in which Board member was identified as a proposed participating landowner on whose property a wind turbine would be located.

In contrast, the Appellate Division said that the Board member had established that he had not entered into any agreement with company with respect to a wind turbine at the time he voted on the proposal in favor of the company's plan for a wind energy facility. Further, the court said that the allegation that Board member had intentionally concealed his relationship with company “was based on pure speculation and thus was not entitled to any evidentiary weight.”

The full text of the decision is posted on the Internet at:

 http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09229.htm