Workers' Compensation Law provides that a claimant who knowingly makes a false statement of a material fact will lose eligibility for benefits

Workers' Compensation Law [WCL] §114-a (1) provides that a claimant who "knowingly makes a false statement or representation as to a material fact ... shall be disqualified from receiving any compensation directly attributable to such false statement or representation."* Further, a determination by the Board as to whether a claimant violated WCL §114-a will not be disturbed if supported by substantial evidence. 

A firefighter [Claimant] sustained an established injury to his neck in the course of his employment as a firefighter, as well as a prior established injury to his back and was awarded Workers' Compensation Benefits.

After reviewing the testimony and surveillance video** of Claimant, a WCL Judge concluded that Claimant's activities did not rise to the level of a WCL §114-a violation. The Workers' Compensation Board, with one panel member dissenting,*** however, concluded otherwise, holding that Claimant had violated WCL §114-a, imposed a mandatory penalty and permanently disqualified him from receiving future wage replacement benefits. The full Board denied Claimant's application for full Board review based on Claimant's failure to comply with the governing regulation set out in 12 NYCRR 300.13. Claimant then appealed both Board decisions.

The Appellate Division said that "... feigning the extent of disability and pretending to be unable to perform most tasks and body movements for the purpose of influencing any determination regarding workers' compensation benefits constitute false representations of material facts within the meaning of Workers' Compensation Law §114-a (1)" and such misrepresentation "need to affect the dollar value of an award to be material."

As the Board found, the video depicts Claimant performing many tasks — with no sign of impairment or difficulty — that are inconsistent with or, in some cases, "in direct contrast to" his representations to medical providers and evaluators, and contradicted his purported severe functional limitations and limited performance during a functional capacity evaluation [FCE].

Concluding that the Board's finding that Claimant had made false representations regarding material facts is supported by substantial evidence, the Appellate Division declined to disturbed the Board's determination. In the words of the court, "the Board adequately explained its reason for disqualifying [Claimant] from receiving future benefits, based upon its finding as to the "nature and extent of the misrepresentation," which it found to be "egregious."

Finally, the Appellate Division, citing Matter of Losurdo v Asbestos Free, 1 NY3d at 267,  said considering Claimant's substantial, repeated misrepresentations of his functional abilities and condition, it was not persuaded by Claimant's argument that imposing the discretionary penalty of permanent disqualification for workers' compensation benefits was disproportionate to his misrepresentations.

* See Losurdo v Asbestos Free, 1 NY2d 258.

** A surveillance video of Claimant taken on three days in November 2016 reflects that "Claimant was observed getting in and out of his truck, driving and walking around stores and his property without any apparent difficulty, as well as carrying floor boards into and out of a store and repeatedly bending over at the waist to inspect merchandise or to remove items from low store shelves. Further Claimant was seen placing objects, including floor boards and boxes, on the floor, bending over and picking up a box from the floor, carrying a box with one hand, twice pulling down an overhead garage door with one hand, bending and reaching for objects and vigorously sweeping his garage."

*** The dissenting panel member agreed that Claimant had violated Workers' Compensation Law §114-a but would not have imposed the discretionary penalty of permanent disqualification. The Appellate Division noted that "[a]lthough full Board review would have been mandatory due to the dissent of one panel member, such review required a proper, timely application, including compliance with the completion requirements for RB-89.2 applications (see 12 NYCRR 300.13 [b] [4]). Moreover, direct judicial review of the Board panel's decision is also permitted (see Workers' Compensation Law §23) and, indeed, has herein provided review of all issues that could have been considered by the full Board." 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05361.htm

Increasing a retired employee's contributions for health insurance premiums

The City of White Plains [the City] adopted an ordinance in 2010 that terminated the City's paying 100 percent of the premiums for health insurance on behalf of its retired police officers, requiring the retired officer to pay the difference, if any, between 85 percent of the cost of the premium for participation in the New York State Empire Health Insurance Program and the full premium for the health insurance plan in which the retired officer was enrolled.

Retired police officers appointed prior to July 1, 1995 and who had retired prior to May 24, 2010 [Retirees], contending that the ordinance violated Contracts Clause of the United States Constitution, Article I, Section 10, and the Equal Protection Clause of the Fourteenth Amendment, brought an action in federal district court challenging the City's action.

  

The federal district court granting summary judgment in favor of the City and the other municipal defendants named in the action and the Retirees appealed. The United States Circuit Court of Appeals, Second Circuit, affirmed the district court's ruling.

Addressing the Retirees' "Contracts Clause" claim, the court said that the Retirees argue that the City’s 2010 Ordinance violates the Constitution's Contracts Clause because "their collective bargaining agreement [CBA] guaranteed that the City would pay the full cost of their health insurance premiums. However, said the Circuit Court, "this claim fails because [the Retirees] have forfeited any argument that the 2010 Ordinance constitutes an impairment, rather than a contractual breach." Further, said the court, the Retirees "also failed to contradict record evidence provided by the City that the 2010 Ordinance served a significant public purpose or that any contractual impairment of that guarantee was reasonable and necessary to effectuate that purpose."

Citing Buffalo Teachers, 464 F.3d at 369, the court noted that that it had held that “the legislative interest in addressing a fiscal emergency is a legitimate public interest”  and, at most, the Retirees "dispute that the City was in a “real fiscal emergency.”

As the District Court explained, "the City provided substantial unrebutted evidence that the 2010 Ordinance was passed to address a serious budget shortfall and impending credit downgrade caused by the global financial crisis that started in 2008 and, for the City, worsened considerably as of 2010 and the Circuit Court said it agreed "with the District Court that any alleged impairment caused by the 2010 Ordinance to address the City’s fiscal emergency was reasonable and necessary—a conclusion that the appellants in any event do not challenge on appeal.*  

Addressing the Retirees' Equal Protection Claim, the Circuit Court noted that the Retirees were all retired at the time the 2012–2018 collective bargaining agreement between the City and the representative of police officers then in service was executed and, agreeing with the district court, said that the Retirees were not similarly situated to active employees who could participate in collective bargaining, affirmed the dismissal of the Retirees’ equal protection claim.**  

* The decision notes that City "presented ample evidence that it passed the 2010 Ordinance only after pursuing a range of measures to increase revenue and cut expenses" and although New York law permitted the City to require the appellants to contribute up to 50 percent of the premium amount, the 2010 Ordinance required the Retirees to contribute substantially less.

** In McDonald PBA v City of Geneva, Ct. of Appeals, 92 N.Y.2d 326, the Court of Appeals ruled that in the absence of a Taylor Law contract providing otherwise, a municipality’s past practice does not demonstrate any right to compel the municipality to continue providing the same level of health benefits to its retirees as it has in the past.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/a9a7d59f-59fc-4e77-a184-1fff3c5958dd/3/doc/18-1348_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a9a7d59f-59fc-4e77-a184-1fff3c5958dd/3/hilite/

Eligibility for supplemental benefits being paid pursuant to General Municipal Law §207-a terminates upon the disabled firefighter attaining his mandatory service retirement age

Plaintiff, a former City of Buffalo firefighter who was granted performance of duty disability retirement benefits in accordance with Retirement and Social Security Law §363-c received a supplemental benefit until the City of Buffalo [Respondent] discontinued paying the supplement upon Plaintiff's attaining age 62.*

Plaintiff initiated a proceeding pursuant to CPLR Article 78 seeking reinstatement of the supplemental benefit, with back payment, contending that Chapter 585 of the Laws of 2008 amended Retirement and Social Security Law [RSSL] §384-d(i) and revised the mandatory service retirement age from age 62 to age 65. Plaintiff argued that he was being denied equal protection of the law in view of the fact that "other similarly situated firefighters" continued to receive the supplemental benefit from appointing authority beyond age 62.

Supreme Court denied the petition and Plaintiff appealed. The Appellate Division affirmed the Supreme Court's ruling, noting that "[i]t is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature," citing Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205.

The Appellate Division opined that the plain language of the amendment and its legislative history  establish that the amendment was intended, as relevant to Plaintiff, to permit certain firefighter members of the retirement system who are "capable of performing the duties of their position" to continue working until the age of 65 while retaining the mandatory service retirement age of 62 for disabled firefighters receiving RSSL §384-d(i) retirement plan benefits.

In the words of the court, "[w]hen the terms of related statutes are involved, as is the case here, they must be analyzed in context and in a manner that harmonize[s] the related provisions . . . [and] renders them compatible," citing Matter of M.B., 6 NY3d 437. As it was undisputed that the Plaintiff is not "capable of performing the duties of [his] position ... the mandatory service retirement age applicable to him" is 62." Accordingly, the Appellate Division opined that Supreme Court "properly determined that [Plaintiff] was not entitled to the supplemental benefit after he attained [age 62]."

Addressing Plaintiff's contention that he had been denied "equal protection of the law" when Respondent discontinued paying him the supplement to his retirement allowance upon his attaining age 62, the Appellate Division said that Plaintiff had presented "no evidence . . . to support a finding that [he] ha[d] been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment."

Thus, ruled the Appellate Division,  "[Supreme Court] properly determined that the record did not support [Plaintiff's] contention that Respondent denied him equal protection of the law."

* General Municipal Law 207-a(2) provides for a supplement equal to the  difference  between  the  amounts  received  under   his   allowance  or  pension  and  the  amount of his regular salary or   wages  to be added the disabled firefighter's retirement allowance to equate which supplement is discontinued the firefighter attaining the mandatory service retirement age applicable to   him.

consistent with the relevant provision of the Retirement and Social Security Law.

upon the firefighter attaining the mandatory service retirement age applicable to   him.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04534.htm

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Disability Benefits for fire, police and other public sector personnel - Addresses retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on  

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The appropriate statute of limitations for commencing litigation of an issue depends of the nature of the redress being sought

In this action the Appellate Division affirmed Supreme Court dismissal of the Plaintiff's CPLR Article 78  petition seeking to annul the appointing authority's termination of Plaintiff's on the grounds that it was untimely, explaining that CPLR §217(1) requires that an Article 78 proceeding challenging an individual's termination from government employment must be brought within four months from the date on which the appointing authority's decision to terminate the employee became final and binding.*

The court rejected Plaintiff's claim that he was entitled to the longer period for commencing his action available under the Family Medical Leave Act because, said the court, "the crux of [Plaintiff's] proceeding was to challenge and seek redress for the administrative decision to fire him, and not to make a claim under the FMLA.

* N.B. Submitting request to the appointing authority to reconsider its decision does not serve to toll the running of the controlling statute of limitations.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04648.htm

Exception to having to exhausting administrative remedies as a condition precedent to an employee initiating litigation against his employer

The Plaintiff in this action, a school teacher employed by the defendant City of New York Department of Education [DOE], sued DOE to recover damages for personal injuries she alleges she sustained at the high school where she worked. The Plaintiff claimed that she had been trapped inside a school elevator until she was extracted from it, "which required her to jump from the elevator to the third floor," and suffered an injury to her back as a result.

Prior to commencing this action, the Plaintiff applied to the DOE for "line of duty injury" paid medical leave pursuant to the terms of a collective bargaining agreement [CBA]. The DOE denied the application without providing the Plaintiff with a reason for its determination. Plaintiff decided not to challenge the DOE determination through a medical arbitration proceeding pursuant to the terms of the CBA, and commenced this action.

The DOE and the defendant City of New York [Defendants] moved to dismiss the complaint insofar as asserted against them on the basis that Plaintiff failed to exhaust her administrative remedies under the CBA. In the alternative, Defendants contended that dismissal was warranted under collateral estoppel and, or, res judicata. Supreme Court granted that branch of the motion seeking to have the court dismiss the complaint insofar as asserted against the Defendants, explaining that Plaintiff failed to exhaust her administrative remedies under the CBA. Plaintiff appealed the Supreme Court's decision and the Appellate Division reversed the lower court's ruling.

Although it is "black letter law" that an employee covered by a collective bargaining agreement which provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies or face dismissal of the action, in this instance the Appellate Division said that Plaintiff was seeking to recover damages against the Defendants for pain and suffering based upon a negligence theory of liability which is outside the scope of, and is not governed by, the CBA's "line of duty injury" paid leave grievance provisions.

Accordingly, opined the court, "[t]here is no need to exhaust administrative remedies when the cause of action by the plaintiff is not governed by the CBA," citing Bregman v East Ramapo Cent. Sch. Dist., 122 AD3d at 657; Matter of Van Tassel v County of Orange, 204 AD2d at 561.

With respect to the Defendants' argument that dismissal is also warranted on the basis of collateral estoppel and res judicata, the Appellate Division opined that the dismissal of the case by reason of the doctrine of collateral estoppel was without merit, explaining that the issue that Plaintiff seeks to pursue here was not shown to have decided by the DOE when it denied the plaintiff's "line of duty injury" paid leave application.  

Addressing the application of the doctrine of res judicata, or claim preclusion, in this action, the court ruled that this, also, is inapplicable to the Plaintiff's complaint "because the relief she seeks could not have been awarded within the context of the prior administrative proceeding," citing Lasky v City of New York, 281 AD2d at 599.

Thus, ruled the Appellate Division, Supreme Court should have denied that branch of the Defendants' motion to dismiss the complaint insofar as asserted against them.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04745.htm