Monetary penalty assessed against workers’ compensation benefit claimant’s attorney

Monetary penalty assessed against workers’ compensation benefit claimant’s attorney
2013 NY Slip Op 08495, Appellate Division, Third Department

This appeal challenged a decision of the Workers' Compensation Board that, among other things, assessed a monetary penalty counsel fees of $500 against a workers' compensation benefits applicant’s attorney pursuant to Workers' Compensation Law §114-a(3)(ii).*

An employee [Claimant] resides in the Bronx and was injured in the course of his duties as a correction officer at Rikers Island. His claim for workers' compensation benefits was not disputed.

Claimant, however, "request[ed]," on a form provided by his attorney, that all hearings in his case be conducted at a hearing site in the City of White Plains, Westchester County. The form asserting that his "request MUST BE GRANTED" pursuant to "Board Rule 10.01(1)(c)."

The Workers' Compensation Law Judge found no reasonable ground had been established for a change of venue, noting that "Board Rule 10.01" did not exist and that counsel for claimant had previously been warned that she would be sanctioned if she thereafter relied upon this purported rule as the basis for a change of venue application.

Ultimately the Workers’ Compensation Board found the award of counsel fees under §114-a(3)(ii) to be proper and increased the $250 assessment set by the Law Judge to $500.

The Appellate Division said that the sole issue in this appeal was whether the assessment of reasonable counsel fees against counsel for claimant was warranted. Affirming the Board decision, the court said that Workers' Compensation Law §114-a(3)(ii) permits the Board to assess reasonable counsel fees against counsel where a proceeding before it has "been instituted or commenced without reasonable ground."

The court noted that [1] counsel for claimant had previously been warned that seeking a change of venue based upon a nonexistent "Board Rule" would subject her to sanctions; [2] she elected to do so in this proceeding notwithstanding such earlier warning; [3] White Plains had no obvious connection to claimant or the accident that led to this claim; and [4] the Board found that counsel had not advanced any legitimate reason for a change of venue.

Finding that substantial evidence supported the Board's determination to assess reasonable counsel fees against counsel for claimant pursuant to Workers' Compensation Law §114-a(3)(ii), the Appellate Division sustained the Board ruling.

* The sole issue in this appeal is whether the assessment of counsel fees against claimant's attorney was warranted. As those fees were directly assessed against counsel, counsel is the party in interest pursuant to Workers' Compensation Law §23 and "should have filed the notice of appeal on her own behalf."  

The Wolfe decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08495.htm

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See, also, Banton v New York City Dept. of Corr. at: http://www.nycourts.gov/reporter/3dseries/2013/2013_08494.htmand

Toledo v Administration for Children Servs., at: http://www.nycourts.gov/reporter/3dseries/2013/2013_08500.htm

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 25, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 25, 2014

Source: Office of the State Comptroller

 

Click on text highlighted in color  to access the full report

DiNapoli: DOT Efforts to Police Trucking Companies Falling Short

The state Department of Transportation is not adequately monitoring whether commercial carriers whose vehicles or drivers have been taken off the road because of violations are making needed repairs or corrections, potentially putting the public at risk, according to an auditreleased January 22, 2014 by State Comptroller Thomas P. DiNapoli.

DiNapoli: Binghamton City School Finances Progressing

Prudent budgeting and proactive financial planning by officials in the Binghamton City School District have helped to improve the district’s fiscal condition, according to an audit issued January 24, 2014 by State Comptroller Thomas P. DiNapoli.

DiNapoli Announces State Contract & Payment Actions for December

State Comptroller Thomas P. DiNapoli announced Thursday his office reviewed 2,193 contracts valued at $9.8 billion and approved more than 2.3 million payments worth $11 billion in December 2013. His office rejected 205 contract transactions valued at $358 million and 1,390 payments valued at $1.9 million due to fraud, waste and other improprieties.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed audits of

the Albany Leadership Charter High School for Girls;

the Charter School for Applied Technologies;

the Eugenio Maria de Hostos Charter School;

the Germantown Central School District;

the Niagara Charter School;

the Oracle Charter School;

the Southside Academy Charter School; and

the True North Rochester Preparatory Charter School.
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New York State Offers New Exam For State Employment Opportunities

New York State Offers New Exam For State Employment Opportunities Source: New York State Department of Civil Service

New York State’s Department of Civil Service has announced a new examination program for job seekers with Bachelor’s degrees.  The examination will be used to fill over one hundred entry-level professional titles in a range of disciplines.  College seniors expecting to earn a Bachelor’s degree by September 1, 2014 are also encouraged to apply. The PCO exam qualifies job seekers for general administrative titles.  Job seekers can further establish their eligibility for select titles in areas such as health and human services, environmental conservation, science and finance by identifying concentrations of study or experience. “The new application and questionnaire process expedites establishing minimum qualifications for a significant number of State employment opportunities,” said Civil Service Commissioner Jerry Boone.  “We have eliminated the need for numerous specific exams by creating one test that will qualify candidates for a host of general positions.  Candidates may also qualify for more specialized positions based on individual educational or work experience.” After applying on-line, qualified job seekers will be scheduled to take the written PCO exam on either March 22nd or 23rd 2014.  Applications must be entered on-line by Wednesday, February 5th.  An application fee of $35 is required.   To view the introductory video, questionnaire and application, visit www.cs.ny.gov and click on “Check out Professional Career Opportunities.”

The “Rule of Necessity” permits a tribunal, the members of which could be affected by the decision, to decide a case or controversy

The “Rule of Necessity” permits a tribunal, the members of which could be affected by the decision, to decide a case or controversy

Pines, et. al. v State of New York, 2014 NY Slip Op 00335, Appellate Division, Second Department

In deciding an action initiated by Emily Pines and other judges, Supreme Court that held that “the compensation of judges and justices of the Unified Court System of the State of New York was duly increased pursuant to the Laws of 2009, Chapter 51, §3, and that the [State] is obligated to pay the judges and justices of the Unified Court System of the State of New York in accordance therewith retroactive to April 1, 2009."

After conceding that “more than a decade had passed since the plaintiffs and their colleagues in the New York State judiciary had received a pay raise authorized by the Legislature,” and setting out the relevant history leading to Pines’ initiating this litigation, the Appellate Division recognized that “members of this Court have a pecuniary interest in this case and will be affected by the outcome of this appeal.”

The court then explained that "The participation of an independent, unbiased adjudicator in the resolution of disputes is an essential element of due process of law, guaranteed by the Federal and State Constitutions" and “in order to ensure the dignity of the judiciary and maintain the integrity of the administration of justice, [o]rdinarily, when a judge has an interest in litigation, recusal is warranted."

That said, the Appellate Division noted that "[t]he Rule of Necessity provides a narrow exception to this principle, requiring a biased adjudicator to decide a case if and only if the dispute cannot otherwise be heard." 

Here, said the court, "the self-interest implicated by the issues raised on appeal would provide grounds for disqualifying not only the justices of this Court, but any other judicial body which might replace it." As “the recusal of the members of this Court, and those of every other court in the Unified Court System, would leave the plaintiffs without a legal remedy, the ‘Rule of Necessity’ compels us to decide this appeal on the merits, notwithstanding our personal stake in the litigation.”

The Appellate Division then explained that, notwithstanding Supreme Court's conclusion to the contrary, “there is no language in the statute that adjusts the salary schedules of the various judges and justices of this state. As in prior years, the plain language of the statute merely directs that a certain sum necessary for adjusting judicial compensation be set aside—what has previously been recognized as a ‘dry appropriation.'"

Rejecting Pines’ position is that the statute must have adjusted the rates of judicial compensation because it referenced the purpose of the appropriation, the court concluded that this argument is not actually based on the plain language of the statute but rather “rests on an inference drawn from a reference to the appropriation's purpose.” In the words of the Appellate Division, … the plaintiffs' plain language argument would require us to interpret the statute in a manner that would render it unconstitutional.”

Further, the court noted that in deciding this appeal under the "Rule of Necessity," it is  “constrained to discern and apply the will of the elected members of the Legislature and not our own perceptions of what might be equitable,” quoting Alexander Hamilton writing in The Federalist, "[i]t can be of no weight to say that the courts . . . may substitute their own pleasure to the constitutional intentions of the legislature" (Hamilton, Federalist No. 78).”

Without addressing “the wisdom of the Legislature's decision or the manner in which it was carried out,” the Appellate Division concluded that the Legislature did not adjust judicial compensation through the enactment of the Laws of 2009, Chapter 51, §3” and reversed the Supreme Court’s ruling “on the law.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00335.htm
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Returning to work following a voluntary absence due to illness or disability

Returning to work following a voluntary absence due to illness or disability

Source: New York State Department Of Civil Service, State Personnel Management Manual, Advisory Memorandum #14-01 dated January 22, 2014

Mark F. Worden, Associate Attorney, New York State Department of Civil Service, has distributed a memorandum, Advisory Memorandum #14-01, addressing “Return to Work Evaluations and Civil Service Law Section 72 Due Process Procedures.”

Mr. Worden explains that the New York State Court of Appeals decided two cases, Sheeran v. New York State Department of Transportation* and Birnbaum v. New York State Department of Labor (18 NY3d 61) in which it ruled that the procedural safeguards set out in Civil Service Law (CSL) §72 apply when an employee who is voluntarily on leave due to personal illness or a disability that is not work-related within the meaning of the Workers’ Compensation Law is prevented from returning to work by the appointing authority. Such a refusal to allow the employee to return to work converts his or her  voluntary leave into an involuntary leave. Accordingly, the appointing authority is then required to follow the procedures set out in CSL §72.1 or CSL §72.5, as the case may be, with respect to such an employee..

N.B. The Memorandum cautions that "It is essential that any employee denied a return to duty pending a hearing be provided with written notice that such action is being taken pursuant to CSL §72(5) and notified of the reasons for such action."

Mr. Worden also advises that “… all appointing authorities must review their return to work procedures to ensure that they are consistent with these Court of Appeals decisions” and follow the guidelines set out in Advisory Memorandum #14-01**

Although Mr. Worden’s memorandum is addressed to State Department and Agency “Personnel and Human Resources Directors,” and Sheeran and Birnbaum were employed by State Departments at the time they voluntarily placed themselves on leave, it is instructive to appointing authorities of political subdivisions of the State as well.

* NYPPL’s summary of the Sheeran and Birnbaum decisions is posted on the Internet at:

http://publicpersonnellaw.blogspot.com/2011/11/procedural-safeguards-set-out-in-civil.html

** Mr. Worden’s  memorandum Advisory Memorandum # 14-01 is posted on the Internet at: http://www.cs.ny.gov/ssd/Manuals/SPMM/2200SeparationsLeaves/Advisory%20Memo%2014-01.htm

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