Processing an application for accidental disability retirement

Processing an application for accidental disability retirement

Magistro v DiNapoli, 2016 NY Slip Op 05893, Appellate Division, Third Department

Bodenmiller v DiNapoli, 2016 NY Slip Op 05894, Appellate Division, Third Department

Members of the New York State Policemen's and Firemen's Retirement System injured on the job and and as a result are "physically or mentally incapacitated for performance of duty” may apply for an accidental disability retirement allowance pursuant to §363 of the Retirement and Social Security Law or, where his or her disability did not result from an accident, for a performance of duty disability retirement allowance pursuant to §363-c of the Retirement and Social Security Law.* 

For the purposes of  determining an individual's eligibility for an accidental disability retirement allowance pursuant to §363, in Lichtenstein v Board of Trustees of Police Pension Fund, 57 NY2d 1010, the Court of Appeals defined the term accident as "a sudden, fortuitous mischance, unexpected, out of the ordinary and injurious in impact." Whether a "mischance" is an accident for the purposes of §363 is determined on a case-by-case basis.

The Magistro decision by the Appellate Division illustrates the application of the “accident standard” in determining the nature of the event that resulted in the injury while the Bodenmiller decisions explains the quasi-judicial procedures that are to be followed when considering an application an accidental disability retirement allowance.

The Magistro decision

City of Poughkeepsie police officer David M. Magistro was dispatched to a residence where a burglary had occurred. In the course of his checking the residence for possible entry points and crime scene evidence, he went to inspect a small porch that was connected to the house by wooden stairs. The stairs were partially covered by an overhanging roof. It had rained that morning and when Magistro stepped on the top step he slipped and slid down the handrail before eventually catching himself. As a result of injuries that he sustained, Magistro filed an application for accidental disability retirement benefits.**  

Magistro’s application was initially administratively denied on the ground that the incident did not constitute an accident for the purposes of the Retirement and Social Security Law. He  requested a hearing and redetermination and, following the hearing, the Hearing Officer denied his application for the same reason. The Comptroller subsequently adopted the Hearing Officer's findings and Magistro filed a petition pursuant to Article 78 of the CPLR challenging the Comptroller’s determination.

The Appellate Division sustained the Comptroller’s decision noting that “[i]t is well settled that, for purposes of the Retirement and Social Security Law, an accident is a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact," the Lichtenstein test. 

The court then explained that the burden is on the party seeking benefits to establish that the injury-producing event was accidental in nature and in order to be deemed accidental, an injury must result from a risk that is not an inherent part of the applicant's regular job duties or from a hazard that cannot be reasonably anticipated by the individual.

The Appellate Division explained that Magistro’s search of the residence following the burglary was a part of his routine duties as a police officer and he acknowledged that it was lightly raining when he conducted the search. Although he did not see water pooling on the stairs, he believed that they were wet and stated that he did not realize that the stairs were slippery until his foot slipped on the top stair.

The Appellate Division held that Magistro “could have reasonably anticipated the slippery condition of the stairs under the circumstances presented.”

Although Magistrotheorized that the stairs were slippery because they had been painted with interior paint and were not constructed in accordance with the relevant building code, the court said that this explanation of the cause of Magisto's injury presented a credibility issue for Comptroller to ultimately resolve. Here, said the Appellate Division, substantial evidences supported the Comptroller’s determination rejecting Magistro’s application for accidental disability retirement benefits and “we decline to disturb it.”

The Bodenmiller decision

Robert Bodenmiller, a police officer with the Suffolk County Police Department, received a call concerning a female patient who had left the grounds of a psychiatric facility. Bodenmiller found the woman at a nearby restaurant and, while he was questioning her, a man, who appeared to be carrying a weapon and was yelling loudly, rushed toward them. Bodenmiller turned toward the man, extended his left arm and fired his weapon twice, striking the man and injured his left shoulder during the incident.

Bodenmiller applied foraccidental disability retirement benefits but his application was administratively denied on on the ground that the incident as described by Bodenmiller did not constitute an accident within the meaning of the Retirement and Social Security Law. Bodenmiller requested a hearing and redetermination and, following the hearing, the Hearing Officer denied his application for the same reason. Ultimately the Comptroller accepted the Hearing Officer’s findings and denied Bodenmiller application.

In the course of the Article 78 proceeding that followed, the Comptroller conceded, and the Appellate Division agreed, that the Hearing Officer had applied the incorrect legal standard in rendering her decision.

Specifically, said the court, the Hearing Officer confined her analysis to whether the initial administrative determination was supported by substantial evidence and did not undertake making a re-determination, exercising “the same powers upon such hearing as upon the original application.”

Citing DeMaio v DiNapoli, 137 AD3d 1545, the Appellate Division ruled that such a deficiency constituted an error of law and required annulment of the Comptroller’s determination. The court then remitted the matter to the Comptroller for a new hearing. 

* While §363-c benefits are less generous than §363 benefits, the standard for allowing the benefit is less rigorous as the incident does not have be "accidental in nature." 

N.B. §363-c(h) provides that §363-c benefits are not available to individuals eligible to receive accidental disability retirement benefits pursuant to §363-b, which section applies to sworn officers of the Division of State Police who became disabled prior to July 1, 1974.

**  Magistro had also filed an application for performance of duty disability retirement benefits, which application was approved.

The Magistro decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05893.htm

The Bodenmiller is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05894.htm

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The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

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Selected reports issued by the New York State Comptroller during the week ending September 10, 2016

Selected reports issued by the New York StateComptroller during the week ending September 10, 2016

Source: Office of the State Comptroller

[Internet links highlighted in color]

New York’s Service-Disabled Veteran-Owned Business program

The State's Office of General Services has made substantial progress establishing New York’s Service-Disabled Veteran-Owned Business program in a short time and the program would benefit from the adoption of a comprehensive statewide plan for implementation, according to an auditreleased by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/sept16/090716a.htm?utm_source=weekly+news&utm_medium=email&utm_term=sdvob&utm_content=20160911&utm_campaign=fiscal+oversight

Audits of School Districts

Amherst Central School District – Financial Condition -
http://www.osc.state.ny.us/localgov/audits/schools/2016/amherst.pdf

Friendship Central School District – Procurement -
http://www.osc.state.ny.us/localgov/audits/schools/2016/friendship.pdf 

Harrisville Central School District – Claims Audit - 
http://www.osc.state.ny.us/localgov/audits/schools/2016/harrisville.pdf

 

Oswego County Board of Cooperative Educational Services (BOCES) – Separation Payments -
http://www.osc.state.ny.us/localgov/audits/schools/2016/oswegocoboces.pdf

Roslyn Union Free School District – Cash Receipts -

http://www.osc.state.ny.us/localgov/audits/schools/2016/roslyn.pdf

Sag Harbor Union Free School District – Child Care Program
http://www.osc.state.ny.us/localgov/audits/schools/2016/sagharbor.pdf

There is a presumption that an accident that occurred in the course of employment arose out of that employment

There is a presumption that an accident that occurred in the course of employment arose out of that employment

Oathout v Averill Park Cent. Sch., 2016 NY Slip Op 05892, Appellate Division, Third Department

The Workers' Compensation Board ruled that a claimant for workers’ compensation benefits employed as a custodial worker by the Averill Park Central School District sustained a compensable injury. The Board subsequently denied a request by the School District for reconsideration and/or full Board review.

The Averill Park Central School District, a self-insured employer and its third-party administrator [School District] had controverted the employee's claim for workers' compensation benefits. Following a hearing, the Workers' Compensation Administrative Law Judge found that the employee had sustained a work-related injury and awarded the claimant workers' compensation benefits.

The Appellate Division affirmed the Board’s decision, explaining that "Whether a compensable accident has occurred presents a question of fact for resolution of the Board and its decision will be upheld when supported by substantial evidence." Further, said the court, "absent substantial evidence to the contrary, a presumption exists that an accident that occurs in the course of employment arises out of that employment."

The claimant had testified that she had just finished cleaning the school gymnasium and was walking down a hallway with a coworker when she felt the sharp pain in her foot. This said the Appellate Division, gave rise to the statutory presumption.

Claimant’s treating physician had opined that the injury "maybe partially [due] to her metatarsus adductus"* while the School District’s medical expert who performed an independent examination on claimant, “was unable to draw a direct connection between the claimant's [medical] condition and the [claimant’s] injury.”

The School District argued that the statutory presumption was rebutted by proof that the claimant’s injury had not stemmed from an accident associated with her job duties but was an idiopathic condition, her congenital metatarsus adductus.

However, giving deference to the Board's resolution of any credibility issues involved in making its determination, the Appellate Division held that substantial evidence supported the Board’s determination that the injuries arose out of and in the course of claimant's employment and sustained its decision that the claimant had sustained a work-related injury.  

* Metatarsus adductus, also known as metatarsus varus, is a common foot deformity noted at birth that causes the front half of the foot, or forefoot, to turn inward.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05892.htm

The Town of Clifton Park is seeking administration trustee services and, or, funding of a §457 deferred compensation plan

The Town of Clifton Park is seeking administration trustee services and, or, funding of a §457 deferred compensation plan

Source: New York State Register, September 7, 2016

The Town of Clifton Park is requesting proposals from qualified administrative service agencies and/or financial organizations relating to administration trustee services and/or funding of a 457 deferred compensation plan for employees of the Town of Clifton Park meeting the requirements of §457 of the Internal Revenue Code and §5 of the New York State Finance Law, including all rules and regulations issued pursuant thereto.

A copy of the proposal questionnaire may be obtained from Stephanie Drenchko, Assistant Comptroller, Town of Clifton Park, One Town Hall Plaza, Clifton Park, NY 12065, (518) 371-6651 ext. 234, Fax (518) 371-1136, e-mail: sdrenchko@cliftonpark.org

All proposals must be submitted by 3:00 p.m.not later than 30 days from the date of publication in the New York State Register, September 7, 2016

The Tricky Question of Job Security for Public Employees

The Tricky Question of Job Security for Public Employees

By Richard Clay Wilson, Jr.-

This article was originally posted on the Internet on September 7, 2016, by Governingat http://www.governing.com/columns/smart-mgmt/col-tricky-question-job-security-public-employees.html. Copyrighted^© 2016 by Governing; reprinted by NYPPL with permission.

Job security for employees in the public sector. It's not a simple issue, but there are some guiding principles to keep in mind.

From teacher tenure and law enforcement at the local-government level to the Department of Veterans Affairs and the Secret Service at the federal level, the subject of job security for public employees looms large. How should government approach this subject? Are there principles that could be derived from experience and widely applied?

We can only address the subject in terms of the purposes of government agencies.

Government agencies do not exist for the purpose of providing employment, much less the purpose of providing secure employment. Government employs people to accomplish a wide range of objectives. Employment is clearly a means to an end, not an end in itself.

The question insofar as employment security is concerned, then, is how it bears on the attainment of government's larger purposes. It is clearly wrong to see job security as inherently desirable or undesirable. It is neither. Job security is desirable to the extent that it contributes positively to the achievement of government's purposes and undesirable to the extent that it negatively affects those purposes.

We can stipulate that good employees sometimes require protection from bad supervisors and bad management. We can also stipulate that good management and good supervisors are sometimes obliged to discharge bad employees, including bad managers and supervisors. In short, performance at work -- on the part of individuals and groups -- ranges from the exemplary to the unacceptable. There are no monopolies on goodness. It is therefore imperative that government agencies possess the authority to deal with unacceptable performance.

Further, we can stipulate that public-employee unions have a contractual duty to serve all of their members. This duty obliges them to argue against termination as a matter of principle. We can also stipulate that managers who bear broad responsibility for institutional performance desire, also as a matter of principle, to maximize their authority to hire and fire. It is problematic to hold managers responsible for workplace performance when their authority over the workplace is tenuous.

Are we stuck, then, with opposing and irreconcilable responsibilities and principles? In practice, to date, the answer is that we are stuck. But consider that there is widespread agreement that, at the highest levels, agency heads and top executives are at-will employees subject to removal at any time for any reason. There is also agreement in practice that, at the entry level, probationary employees are also at-will employees. Is there no room for agreement about employees in between these levels?

I would argue that job security should vary in degree in accordance with two indicators. The first indicator is authority and responsibility. Because government employers must be able to respond when authority is misused and responsibilities are not met, jobs with high levels of authority and responsibility should enjoy substantially less job security than jobs with low levels of authority and responsibility.

The second indicator is compensation. Less job security should attach to higher-paid jobs than to lower-paid ones. This is so because government agencies are obliged to produce cost-effective outcomes. Accordingly, they must have more authority over their higher-paid employees than over their lesser-paid ones.

It is hard to quarrel with these general principles. The problem comes in practice. Employees and their representatives understandably don't like the idea of giving up job security in exchange for greater responsibilities and compensation, so they quite rightly demand as much job security as they can obtain. For their part, government employers have long grown accustomed to exercising minimal authority over the workplace; this is also a convenient excuse for failing to exercise supervisory and managerial responsibilities.

But agencies of government have a duty, to the public and to the elected officials who bear ultimate responsibility, to continuously improve things, even when they are going right, and to fix things when they are going wrong. This obliges government agencies to be constantly fine-tuning, in the best of circumstances, and overhauling and reforming in other circumstances. In other words, government agencies must continuously attend to their workforces in the interest of obtaining the best possible outcomes.

It used to be that government salaries were low while benefits and job security were high, which was fair enough. But the modern world obliges government to be competitive with the private sector in salaries and benefits. In this new world, it isn't fair to public employers to apply the job-security practices of the past.

It is fine, as a general rule, for lower-level, lower-paid employees to enjoy higher levels of job security than higher-level, higher-paid employees. But no employee, and no level of employment, can be beyond reach. Every agency must have the means of reconstituting and reforming its workplace in pursuit of the purposes for which it exists.

The best approach would be for management and labor to agree on the cost of employee departure rather than to fight about job security. In general, the cost of departure should be less for higher-level, higher-paid employees and more for lower-level, lower-paid employees. It would also be reasonable to factor in length of employment.

It is altogether appropriate that there be economic cost for removing employees. It is sad, but nevertheless true, that all too often it would be a cost worth paying.

About the author

Richard C. Wilson is a Contributor to Governing and has served in local government for 38 years, including 29 years as city manager of Santa Cruz, Calif., retiring in 2010 to write about management in the public sector. He is the author of Rethinking Public Administration: the Case for Management, a revised edition of which was published in January 2016, and The Loma Prieta Earthquake: What One City Learned, published in 1991. Before becoming assistant city manager in Santa Cruzin 1979 and then city manager in 1981, Wilson served as finance director and assistant city manager in El Cerrito, Calif.He received his bachelor's degree in political science from the University of Californiaat Santa Barbaraand his master's degree in public administration from the University of Kansasat Lawrence. You may e-mail Mr. Wilson at rclaywilsonjr@gmail.com .