Law amends special accidental death benefit available to the survivors of police officers and firefighters killed in the line of duty

On October 22, 2019 Governor Andrew M. Cuomo signed legislation (Senate 3168-A/Assembly 4079-B) increasing special accidental death benefits [SADB] for "a widow or widower" and children of police officers and firefighters killed in the line of duty.

The new law, which takes effect immediately, increases cost of living benefits by 3 percent for a deceased's spouse or the deceased's children under the age of 18 or, if a student, under the age of 23 and certain "other eligible" individuals.

These bills also amend the General Municipal Law and the Retirement and Social Security Law by providing for the addition of 3 percent of the salary of the qualified deceased member used in the computation of the special accidental death benefit in cases where the date of death was before 2019.

In addition, these bills affect the SADB payable to eligible survivors of qualified deceased members of the:

New York CityEmployees' Retirement System (NYCERS);

New York CityPolice Pension Fund (POLICE); or

New York CityFire Pension Fund (FIRE)

and who were employed by one of the following employers in certain positions:

New York City Police Department - Uniformed Position;

New York CityFire Department - Uniformed Position;

New York City Department of Sanitation - Uniformed Position;

New York CityHousing Authority - Uniformed Position;

New York CityTransit Authority - Uniformed Position;

New York City Department of Correction - Uniformed Position;

New York City - Uniformed Position as Emergency Medical Technician (EMT);

New York CityHealth and Hospitals Corporation - Uniformed Position as EMT; or

The Triborough Bridgeand Tunnel Authority - Bridge and Tunnel Position.

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The Disability Benefits Handbook for fire, police and other public sector personnel

Focusing retirement for disability pursuant to 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 "on-the-job" and "off-the-job."

For more information click on http://booklocker.com/books/3916.html

Requesting authorization to treat the chronic pain that a Workers' Compensation benefits recipient was experiencing from his work-related injuries with medical marihuana

The Workers' Compensation Board among other things, sustained the employer's workers' compensation carrier's denial of a claimant's treating physician's "MG-2 Form" requesting a variance to permit treating his work-related injuries with medical marihuana.

A Workers' Compensation Law Judge [WCLJ] subsequently approved the variance request for causally-related medical marihuana treatment following a hearing and submission of additional medical evidence from claimant's treating medical provider which included a medical report in which the medical provider summarized claimant's pain management regimen and reviewed the various "beneficial effects of the medical mari[h]uana" that claimant had received.

The provider reported, among other things, that Claimant's sleep has improved and pain was reduced "since using medical marihuana," that medical marihuana "allowed him to participate more with his wife and children" and that he "[e]motionally feels much improved" as a result of using medical marihuana. The treating medical provider also noted that claimant was experiencing a "[f]inancial burden with continuing an optimal dose of the medical THC."*

The Workers' Compensation Board's reverse and vacated the WCLJ's decision, finding that "it could not approve a variance for treatment already rendered. Claimant appealed the Board's decision.

The Appellate Division, citing 12 NYCRR 324.3 [a], explained that a variance is a treating medical provider's request for authorization of medical care that varies from the Medical Treatment Guidelines, and, generally, the burden of proof to establish that a variance "is appropriate for the claimant and medically necessary shall rest on the [t]reating [m]edical [p]rovider requesting the variance," noting that 12 NYCRR 324.3 [a] [1] provides that "[a] variance must be requested and granted by the carrier, [the] Special Fund, the Board or order of the [Board] Chair before medical care that varies from the Medical Treatment Guidelines is provided to the claimant and a request for a variance will not be considered if the medical care has already been provided."

However, said the Appellate Division, in its view, although the Board properly denied the variance request for medical care, that applied only to the extent such care had already been provided. In contrast, the court opined that in "an instance such as here, however, where the claimant has a chronic pain condition necessitating ongoing treatment, the Board should have addressed the merits of claimant's variance request for prospective medical marihuana treatment."

The Appellate Division then remitted the matter to the Board "for consideration in the first instance of claimant's variance request for prospective treatment."

* Tetrahydrocannabinol [THC] binds with the cannabinoid 1 [CB1] receptors in the brain and produces a high or sense of euphoria. In contrast, Cannabidiol [CBD] binds very weakly, if at all, to CB1 receptors is reported to be able to interfere with the binding of THC and dampen its psychoactive effects.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07470.htm

Confusing permanent appointment with attaining tenure in the position

In Matter of Civil Serv. Employees Assn., Local 1000, AFSCME AFL-CIO v New York State Off. of Children & Family Servs., 174 AD3d 1206 [CSEA] and, similarly, in Ayers v City of Mount Vernon, Appellate Division, Second Department, 2019 NY Slip Op 07230 [Ayers], it appears that there some misunderstanding or misapplication of the words of art "permanent appointment" and "tenure" in determining the employment  status of a public employee while he or she is serving a probationary period.

In CSEA, the court states: "Respondent determined that, at the time of the termination, Sansky had 25 days remaining in his probationary period and that, because he had not yet been permanently appointed to the position of Cadet Leader 1, he was not entitled to a pretermination hearing under Civil Service Law §75 or the applicable collective bargaining agreement" [emphasis supplied].

In Ayers, the "Notice of Appointment" reported in the decision indicated that the plaintiff, Andrea L. Ayers, would serve a six-month probationary period, after which she would be appointed to her position permanently [emphasis supplied].

However, in both situations as described in these decisions the "appointment status" of the individual was that of a "permanent employee" but the individual had not attained a "tenured" appointment status in the position. This is significant with respect to the appointee's right to "notice and hearing" as a condition precedent to termination for cause and for other purposes set out in law.

As a general rule, an individual appointed to a position on a permanent basis attains such status on the effective date of such "appointment" but [1] does not attain tenure in the position until he or she satisfactorily completes his or her maximum period of probation or [2] attains tenure by estoppel, acquisition, default, or otherwise by operation of law or [3] attains tenure as the result of the appointing authority's lawfully truncating the individual's maximum period of probation. In addition, tenure may be acquired in consideration of certain military service performed during a probationary period or by other lawful process.

York v McGuire, 63 NY2d 760, sets out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

This limitation on summarily dismissing a probationary employee during the minimum probationary period is to provide the individual a minimum period of time to demonstrate his or her ability to satisfactorily perform the duties of the position. In contrast, should the appointing authority elect to terminate a probationary employee before he or she has completed the required minimum period of probation, the individual is entitled to administrative due process, i.e., "notice and hearing," otherwise to be accorded a "tenured employee."

Further, the distinction between a date of "permanent appointment" in contrast to the date on which an appointee "attains tenure" is illustrated in other provisions of the Civil Service Law such as §80.1 [layoff] where, in pertinent part, it provides that ... incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs.

The CSEA decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05744.htm

The Ayers decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07230.htm

Excessive PCBs in the Hudson River: Attributable to Incompleteness of Dredging, or to Seven Years of Dredging? - Source: Environmental Claims Journal

Below is the abstract of an article by Dr. Robert Michaels [corresponding author, bam@ramtrac.com] and Uriel M. Oko recently published in the Environmental Claims Journal.   The full text of the article can be downloaded from ResearchGate.net at no charge, via the following URL:  

https://www.researchgate.net/publication/316464957_Excessive_PCBs_in_the_Hudson_River_Attributable_to_Incompleteness_of_Dredging_or_to_Seven_Years_of_Dredging

Abstract¹

GE recently completed a seven-year US EPA-mandated clamshell dredging project to remediate PCB contamination of the Hudson River. Post-project PCB levels in water and fish, however, are higher than anticipated, suggesting to some the need to extend the project to remove more PCB-bearing sediments. Our investigation of the effectiveness of the dredging project revealed that a previously unconsidered physical process must mobilize sediments as a result of dredge bucket closure. We also used computerized dredging data (‘bucket files’) to estimate the fraction of dredged sediments returned to the river instead of being deposited into waiting barges. We conclude that excessive post-project PCBs in the Hudson River predominantly are attributable to sediment mobilization by clamshell dredges. We predict that proposed extension of the dredging project would prolong mobilization processes, allowing PCBs to spread widely and enter ecosystems that include people, endangered fish such as sturgeon, and endangered birds such as bald eagles.

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1 Michaels, Robert A; and Uriel M. Oko.  Excessive PCBs in the Hudson River:  attributable to incompleteness of dredging, or to seven years of dredging?  Environmental Claims Journal, 29(2):115-40, 2017; online:  http://dx.doi.org/10.1080/10406026.2017.1307007, 25 April 2017.

Applying the terms of an agreement settling a disciplinary action

During the course of Plaintiff's disciplinary hearing Plaintiff, represented by counsel, entered into a settlement agreement with the appointing authority [Employer] acting "on its own behalf and on behalf of its present and former ... employees." The settlement agreement provided that the Employer would discontinue the disciplinary proceeding and remove a letter of disciplinary charges from the Plaintiff's personnel file while Plaintiff agreed to retire from his employment with the Employer and to release the Employer and its employees "from all claims or causes of action he may have or claim to have . . . including any and all claims in any way arising out of, or related to, his employment with the Employer, or his separation from that employment."

Subsequently Plaintiff commenced an action to recover damages for defamation, alleging that the individuals [Defendants] named in his complaint, also employees of the Employer, had falsely accused him of actions that led to the disciplinary charges that were preferred by the Employer against him.

Defendants move to dismiss the complaint, submitting a copy of the settlement agreement that had been executed by the Plaintiff in connection with the discontinuance of the disciplinary proceeding that had been brought against him.

Notwithstanding Plaintiff's argument to the contrary, Supreme Court granted the Defendant's motion "for failure to state a cause of action" and Plaintiff appealed.

The Appellate Division explained that [1] the terms of the release contained in the settlement agreement clearly and unambiguously encompass Plaintiff's action and [2] Plaintiff failed to allege any unlawful or wrongful threat by the Employer that could serve as the basis of a claim of duress, which was the only ground the plaintiff alleged to void the release. Thus, opined the Appellate Division, "the release executed by the [Plaintiff] should be enforced according to its terms."

The Appellate Division noted the following elements with respect to a release that will be enforced by a court:

1. "A release is a contract, and its construction is governed by contract law;"

2.  "A party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . the cause of action may not be maintained because of . . . [a] release";

3 "Where . . . the language of a release is clear and unambiguous, the signing of a release is a jural act 'binding on the parties';"

4.  "Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release"; and

5. "Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release shifts the burden ... to the plaintiff to show that there has been fraud, duress or some other fact which will be sufficient to void the release."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06588.htm