Individuals receiving public assistance injured while working in a work experience program are eligible for Workers' Compensation benefits

A recipient of public assistance [Claimant] filed a claim for workers' compensation benefits after sustaining an injury while assigned to work for the County as part of a work experience program [WEP]. Following a hearing, a Workers' Compensation Law Judge [WCLJ] established the claim for a work-related injury, finding that Claimant's average weekly wage was $124.62.  The Claimant did not return to work but was not paid a workers' compensation benefit for lost wages because he was receiving his regular public assistance benefit. The WCLJ, however, kept the claim open for further medical evidence regarding permanency of the injury and schedule loss of use.

Claimant subsequently asked that his claim for lost wage benefits be reopened because his public assistance benefit had been suspended due to a change in the composition and income of his household. Ultimately the County asked Workers' Compensation Board [Board] to review the matter, contending that Claimant's public assistance that he received during his work experience program assignment should not be treated as wages for the purpose of calculating a workers' compensation award.* The Board, however, ruled, in part, that public assistance benefit payments made to a claimant pursuant to a WEP constituted wages under the Workers' Compensation Law. The Board and its third party administrator appealed but the Appellate Division dismissed the appeal "as interlocutory."**

A second hearing was then was conducted and the WCLJ found that Claimant had sustained a 7.5% "schedule loss of use" that entitled him to 18.3 weeks of benefits. Ultimately Claimant was awarded $1,830 and the Board concluded that the entire award was payable as a credit to the County. The County and its third-party administrator again appealed the Board's ruling, contending that Claimant is not entitled to any "lost-wage benefits" award because the public assistance benefit that he received was not a "wage" as defined by Workers' Compensation Law §2(9).

After an extensive legal analysis of the matter by the Appellate Division "under well-settled principles of statutory interpretation," the court concluded that the provisions of the "applicable statutory scheme must be construed together and harmonized" in a way that renders them compatible and achieves the legislature's intent rather than to consider the definition of the term wage or wages "in isolation."

Observing that a recipient of public assistance may be required to participate in work activities, including experience working in the public sector, the court opined that "[t]he amount of assistance that a participant in a WEP receives is not determined by the number of hours worked; rather, the number of hours that a recipient of public assistance is required to participate in a WEP is determined by dividing the amount of assistance received by the higher of the federal or state minimum wage." 

Significantly, the decision notes that the fact that recipients of public assistance must participate in a WEP to receive benefits without reduction "means that the public assistance paid to WEP participants directly serves as compensation for the work performed."

Holding that public assistance benefits paid to WEP participants are wages as defined in the Workers' Compensation Law, the Appellate Division opined that its ruling was consistent with the Court of Appeals' observation that the "rate and method of payment of WEP workers is determined by the Social Services Law."***

The decision concluded with the observation that providing awards for WEP participants "injured on the job" also benefits those who host WEP participants "by ensuring that workers' compensation is [a WEP participant's] exclusive remedy for injuries [he or she] sustained in the workplace."

*  While Board review was pending, a WCLJ determined that there was insufficient medical evidence to support an award.

** See 146 AD3d 1065. As a general rule, a party does not have a right to appeal a court's interlocutory order or an interlocutory decision.

*** See Matter of Carver v State of New York, 26 NY3d 272

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03870.htm

An objection to a statement in a court's opinion that is determined to be "dicta" does not provide a basis for appeal

The views of a judge expressed in his or her opinion that do not have any impact or are required for the resolution or determination of a specific case before the court are referred to as dicta. They constitute statements in a court's opinion that go beyond the facts before the court and thus only reflect only the views of the writer of the opinion and although they might be interesting, and possibly instructive, they are not binding in subsequent cases as legal precedent. This appeal from a CPLR Articel 78 decision by Supreme Court concers an appeal of a statement by Supreme Court that the Appellate Division deemed to constitute dicta. 

College student A, attending College X, filed a complaint pursuant to College X's "Student Sexual Misconduct Policy" [Policy] alleging that another college student [Student B] attending College Y had violated the Policy during an incident that occurred off-campus. College X subsequently advised Student B that, after a thorough investigation, it had determined, by a preponderance of the evidence, that Student B had violated College X's Policy and that College X would contact College Y and provide it with a redacted copy of the investigation report and record documents.

Student B initiated a CPLR Article 78 proceeding seeking, among other things, [1] to annul College X's determination, contending that it was arbitrary and capricious and [2] to enjoin College X from giving the complaint and investigation record to College Y.

Supreme Court granted Student B's petition, finding that, because petitioner was not a student at College X and the alleged misconduct took place off campus, College X lacked jurisdiction under the Policy and, as such, College X's  determination was arbitrary and capricious.  In addition, Supreme Court opined that it "f[ound] that the conduct demonstrated by [College X] towards [Student B] during the initial course of this investigation was a clear violation of [Student B's] constitutional rights."

College X appealed the Supreme Court's ruling but only for the purposed of vindicating itself with respect to that part of the Supreme Court's decision that stated that College X had violated Student B's constitutional rights.

The Appellate Division, noting that College X did not challenge Supreme Court's holding that its decision was arbitrary and capricious, concluded College X's appeal sought only to vacate that part of the Supreme Court's decision finding that College X violated Student B's constitutional rights,

The Appellate Division, citing Pollicino v Roemer & Featherstonhaugh, 277 AD2d 666, pointed out that the focus of College X's appeal, therefor was appealing dicta, as the inclusion of that statements was "not necessary to resolve [the] issue." On the other hand, noted the Appellate Division, College X did to challenge Supreme Court's holding that College X's actions in this instance were arbitrary and capricious. As "disagreement with dicta does not provide a basis to take an appeal" the court said that "this issue is not properly before us", implying that neither was the issue concerning Supreme Court's holding that College X's actions were arbitrary and capricious as College X had not appealed that branch of the Supreme Court's ruling.

Although Student B, in effect, prevailed in the appeal of the Supreme Court's ruling filed by College X, the Appellate Division declined to issue sanctions, explaining that although [College X's] argument lacks merit, we do not find it to be frivolous."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03872.htm

Establishing a violation of a right to substantive administrative due process

The Plaintiffs in this action were formerly civil immigration detainees at the Orange County Correctional Facility [Jail] where they were treated for serious mental illnesses. Alleging that Orange County and some of its agencies and officials [Defendants] failed to provide planning for, or discharge plans upon release,* violated their substantive due process rights under the Fourteenth Amendment, Plaintiffs initiated litigation in United States District Court seeking relief under 42 U.S.C. §1983. The district court granted the Defendants’ motion to dismiss the complaint and Plaintiffs appealed .

The United StatesCourt of Appeals, Second Circuit, vacated the district court's ruling and remanded the matter to the district court for "further proceedings," finding that Plaintiffs "stated a plausible claim for relief under the Fourteenth Amendment for deliberate indifference to their serious medical needs."

Plaintiffs' complaint alleged that the Defendants were responsible for providing them with medical care while they were detained at a county detention facility [Jail] that houses civil immigration detainees pursuant to an intergovernmental agreement between Immigration and Customs Enforcement [ICE] and Orange County.**

Defendants asked the Circuit Court to dismiss the Plaintiffs' entire Complaint for failure to state a claim, contending that "there is no established substantive due process right to the post-release measures inherent in discharge plans." The Defendants argued that the government’s duty of care ends "the instant the inmate walks through the prison gates and into the civilian world, because that is when the inmate’s ability to secure medication or care on his own behalf is restored" to him or her."

Noting that "[t]his Court ... has never held that the state’s duties to an inmate or detainee extend beyond their release" ... Plaintiffs’ theory in this case is that “[d]ischarge planning is an essential part of mental healthcare in institutional settings” and “Defendants are constitutionally obliged to provide Plaintiffs with adequate medical care while they are confined to immigration detention.”

Taking Plaintiffs’ allegations as true and drawing all reasonable, the Circuit Court said that it found that Plaintiffs "have plausibly alleged that discharge planning is an essential part of in-custody care" and concluded that despite the forward-looking nature of discharge planning, a claim for damages caused by the lack of it can be considered a claim for deprivation of in-custody care for purposes of the “special relationship” exception. However,  on remand it will be necessary for Plaintiffs to prove to a fact-finder that "the care they complain of is the type that should have been provided to  them during their detention."

Citing Pena v. DePrisco, 432 F.3d 98, the court explained that "those in civil detention, as were Plaintiffs in this case, are also afforded a right to be free from deliberate indifference to their serious medical needs." Further, "in order to establish a violation of a right to substantive due process, such a plaintiff must demonstrate not only government action but also that the government action was so ‘egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'”

While remaining the matter for factual development as Plaintiffs have adequately stated a claim, this does not mean that Plaintiffs have established their entitlement to relief and the will need to provide evidence to support their allegations. Further, opined the court, "Defendants have raised significant factual issues that need to be fleshed out through discovery, including whether the discharge planning measures Plaintiffs identify should be provided as part of in-custody care (rather than undertaken upon or after release), the medical effects of a temporary deprivation of psychotropic medication, the causal relationship between the alleged interruption in Plaintiffs’ treatment and the consequences they complain of, and whether the circumstances of Plaintiffs’ release were so unexpected that Defendants could not have anticipated, and properly planned for, their release at the time it occurred."

However, at this, the pleading stage, the Circuit Court indicated that it has simply held that Plaintiffs have adequately stated a Fourteenth Amendment substantive due process claim justifying vacating the district court's opinion and remanding the matter for "proceedings consistent with this opinion." The Circuit also noted that the district court, in addition, may consider various issues it did not reach in its opinion such as (1) whether the Plaintiffs adequately pled a county policy, practice, or custom for purposes of Monell liability***; (2) whether Plaintiffs have adequately stated a claim against [a named Defendant]; and (3) whether [that named Defendant] is entitled to qualified immunity.****

* Plaintiffs alleged that discharge planning is a routine and necessary component of institutional mental health treatment.

** The decision notes that the policies and protocols governing Defendants and others providing treatment at the Jail themselves demand such discharge planning. Both ICE and Orange County have written policies recognizing that mental health discharge planning is an essential component of mental health treatment in institutional settings.

*** Under Monell v. Department of Social Serv., 436 U.S. 658 (1978), a municipal government can be held liable under Section 1983 if a plaintiff can demonstrate that a deprivation of a federal right occurred as a result of a "policy" of the local government's legislative body or of those local officials whose acts may fairly be said to be those of the municipality.

**** "Qualified immunity" protects a government official from lawsuits alleging that the official violated a plaintiff's rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/8d3b6f5e-d0bf-47c4-b631-a629c71a2763/1/doc/17-3506_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8d3b6f5e-d0bf-47c4-b631-a629c71a2763/1/hilite/

Election of the forum in which the appeal is filed determines the procedures that are to be followed

Subdivision 1 of Section 76 of the Civil Service Law, "Appeals from determinations in disciplinary proceedings," in pertinent part provides that an officer or employee may appeal an adverse disciplinary determination made by the appointing authority to either [1] the State Civil Service [CSC] or the municipal civil service commission having jurisdiction or [2] filing a timely CPLR Article 78 action in Supreme Court.*

The New York City Department of Corrections [DOC] filed disciplinary charges against one of its employees [Petitioner] alleging Petitioner had violated certain DOC rules. DOC conducted a disciplinary hearing pursuant to Civil Service Law §75, during which proceeding Petitioner admitted having violated such rules. DOC found Petitioner guilty of the charges preferred against him and terminated his employment.

DOC then advised Petitioner that he could appeal the appointing officer's determination to either the Civil Service Commission [CSC] or to Supreme Court in accordance with CPLR Article 78. Petitioner was also advised that were he to elect to appeal to the CSC, CSC's determination would be final and conclusive.

Petitioner elected to appeal the determination to the CSC and, after a hearing, on August 20, the CSC affirmed the appointing officer's determination and the penalty imposed by the appointing authority. Petitioner then initiated a CPLR Article 78 proceeding seeking a judicial review the appointing officer's determination. DOC moved to dismiss the proceeding.

Supreme Court granted the DOC's motion dismissing Petitioner's Article 78 proceeding and Petitioner appealed.

Initially the Appellate Division noted that "[u]nless a shorter time is provided in the law authorizing the proceeding," an Article 78 action against a entity or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the person or entity seeking the judicial review.  Further, said the court, "An administrative determination becomes final and binding ... when the individual or body seeking review has been aggrieved by it".

In this instance the Appellate Division found that DOC's determination terminating Petitioner's employment was issued on June 4, 2015, and the CSC decision sustaining that determination was issued in August. As Petitioner did not commence this CPLR Article 78 proceeding until following February, the Appellate Division concluded that Petitioner's Article 78 proceeding was "time-barred."

In addition, the Appellate Division noted that Civil Service Law §76(3) provides that "[t]he decision of such civil service commission shall be final and conclusive, and not subject to further review in any court." Accordingly, said the court, because Petitioner elected to appeal to the CSC, he may only seek judicial review if the DOC has acted illegally, unconstitutionally, or in excess of its jurisdiction. Here, however, the Article 78 petition submitted to Supreme Court did not allege or present facts demonstrating that the DOC acted illegally, unconstitutionally, or in excess of its jurisdiction. Accordingly, the Appellate Division held that Petitioner failed to state any basis upon which his appeal could be considered by the court.

* An appeal to the State or municipal commission must be filed in writing within twenty days after service of written notice of the disciplinary determination. In the event such notice is provided by registered mail, an additional three days to file the appeal is permitted.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03966.htm

Challenging an unsatisfactory annual performance rating

An educator [Petitioner] challenged his unsatisfactory annual performance review rating but Supreme Court granted the appointing authority's cross-motion to dismiss the proceeding Petitioner brought pursuant to CPLR Article 78. The Appellate Division unanimously affirmed the lower court's action.

The Appellate Division said:

1. The Petitioner has failed to show that the U-rating was arbitrary and capricious, or made in bad faith;

2. The record established that there was a rational basis for the determination to uphold petitioner's U-rating, which was based on insubordination and unprofessional conduct during the relevant school year; and

3. The Petitioner failed to demonstrate that there were procedural deficiencies in the performance review process resulting in the U-rating that undermined the integrity or fairness of the process.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03301.htm