Considering applications for accidental disability retirement benefits

A state trooper [Petitioner] filed for accidental disability retirement and State Police disability retirement benefits alleging that he was permanently incapacitated as a result of injuries sustained to his back, neck and right shoulder in when, in the course of investigating a motor vehicle accident, another vehicle rear-ended the parked patrol vehicle in which he was sitting and propelled his vehicle into a concrete barrier.

  

The New York Stateand Local Police and Fire Retirement System denied both applications, Petitioner sought a hearing and redetermination. The Hearing Officer upheld the denial of Petitioner's applications and he filed an appeal to the State Comptroller. The Comptroller ultimately remanded the applications for further action to a different Hearing Officer, finding that the first Hearing Officer had failed to make findings on an issue of fact central to the question of whether Petitioner's injuries rendered him permanently incapacitated.

Following a second hearing, during which all evidence and testimony presented at the first hearing was admitted into evidence* and ultimately the new Hearing Officer concluded that Petitioner had failed to establish that he was permanently incapacitated as a result of his injuries and, consequently, denied both of applications for benefits submitted by Petitioner.

The Comptroller accepted the second Hearing Officer's findings and conclusions and Petitioner commenced a CPLR Article 78 proceeding challenging the Comptroller's determination. Finding that the petition raised the issue of whether substantial evidence supported the determination, Supreme Court transferred the proceeding to the Appellate Division pursuant to CPLR §7804[g].

The Appellate Division affirmed the Comptroller's determination explaining that the applicant for accidental or State Police disability retirement benefits bears the burden of establishing, among other things, "that he or she is permanently incapacitated from performing his or her regular job duties." Further, noted the court, the Comptroller is vested with "the authority to resolve conflicts in medical evidence and to credit the opinion of one expert over that of another, so long as the credited expert provides an 'articulated, rational and fact-based opinion, founded upon a physical examination and review of relevant medical reports and records'" and where the Comptroller's determination is supported by substantial evidence, it will be sustained.

In this instance the Comptroller credited the expert opinions of the Retirement Systems expert, a board-certified orthopedic surgeon who reviewed petitioner's medical records and conducted physical examinations of Petitioner and opined that petitioner was not permanently incapacitated because there were reasonably safe treatment options available** and later following a second physical examination of Petitioner, found that Petitioner's conditions "had resolved or were stable."

In contrast to what the Appellate Division described as the Retirement System's expert "articulated, rational and fact-based opinions," Petitioner's experts opined that Petitioner was permanently incapacitated. The Comptroller discounted Petitioner's experts opinions for various reasons and rejected Petitioner's citing determinations made by the Workers' Compensation Board and the Social Security Administration, explaining that the opinions of those entities "are not binding upon the Comptroller."

Deferring to the Comptroller's credibility assessments, the Appellate Division found that substantial evidence supports the determination that Petitioner failed to prove that his injuries rendered him permanently incapacitated and confirm the Comptroller's determination.

* The decision notes that at the second hearing Petitioner had consented to the admission of evidence from the first hearing and thus rejected Petitioner's contention that the Comptroller could not rely on certain reports in the record.

** See Matter of Mondello v Beekman, 56 NY2d 513, affirmed on opinion below at 78 AD2d 824. In this instance the individual's application for line of duty disability retirement was dismissed because the individual had failed to accept proper corrective medical treatment, including surgery..

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07662.htm

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Disability Benefits for fire, police and other public sector personnel

An e-book 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  http://booklocker.com/books/3916.html

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The emerging urgency of mitigating environmental impacts and potential public health risks of the United States Postal Service

Below an abstract of an article by Dr. Robert Michaels [bam@ramtrac.com] recently published in the Environmental Claims Journal.  The full text of the article can be downloaded from ResearchGate.netat no charge, via the following URL:   https://www.researchgate.net/publication/323256797_The_Emerging_Urgency_of_Mitigating_Environmental_Impacts_and_Potential_Public_Health_Risks_of_the_United_States_Postal_Service.

Abstract¹

The privatized, ‘quasi-public’ United States Postal Service (USPS) is the largest commercial entity sending and delivering letters and packages. USPS vehicles drive a billion miles/year, visit 150 million addresses/day, and stimulate fossil fuel mining and vehicle pollutant emissions, with significant environmental impacts and potential public health risks. Sending and delivering therefore constitute excellent candidate activities for optimization to reduce USPS and overall impacts and risks, which depend upon spatial relationships of local post offices and mail recipients. Recipients may receive mail passively, or pick it up at their post office. Under the USPS business model, recipients lack economic incentive for the latter, even if their post office is situated along their daily travel route. USPS can incentivize such customers by dividing the price of postage between two parties: senders, covering delivery of individual pieces to recipients' local post office; and recipients, in the form of annual subscriptions covering delivery of mail to their local address. This alternative model would greatly reduce the price of postage for senders, increase the number of recipients picking up mail at a local post office box to avoid paying for delivery subscriptions, reduce USPS and overall impacts and risks, and possibly restore USPS business volume and profitability.

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1 Michaels, Robert A.  The emerging urgency of mitigating environmental impacts and potential public health risks of the United States Postal Service.  Environmental Claims Journal, 30(2), 142-50, doi: 10.1080/10406026.2018.1442077, online 9 March 2018.

Supervisor the target of employee's disrespectful and aggressive behavior

An employee was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he acted disrespectfully and aggressively towards his supervisor and caused disruption in the workplace. The worker denied any wrongdoing.

The appointing authority presented three witnesses who were present at the scene and all credibly testified as to employee's misconduct.

New York City Office of Administrative Trials and Hearing Administrative Law Judge Noel R. Garcia found that appointing authority proved that employee behaved in a discourteous manner towards his supervisor and caused disruption to the workplace.

The ALJ recommended that the employee be suspended without pay for ten days.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-2248.pdf

PERB's authority to initiate "jurisdictional deferral" and "merits deferral" in considering an improper practice charge filed pursuant to §209-a(1)(d) of the Civil Service Law

New York State[State] and the Public Employees Federation [PEF], representing state employees in the Professional, Scientific and Technical Services Unit, were parties to a collective bargaining agreement [CBA] from April 2011 to April 2015. Certain employees working at the Rochester Psychiatric Center [RPC], a treatment facility overseen by the Office of Mental Health were in the collective bargaining unit represented by PEF.

RPC had implemented a policy in 1982 whereby employees were not routinely required to submit doctor certificates for absences from work due to illness or injury, with the exception of six specified reasons that "management will require that a doctor's certificate be submitted." In December 2012, RPC's director of nursing sent an email to the entire nursing staff stating that the coverage needs of its patients required a change of policy and that "[l]ast minute call [ins] will require documentation supporting the [rationale] for the absence" for specified time periods during the 2012-2013 holiday season.

PEF filed an improper practice charge with Public Employment Relations Board [PERB] alleging that petitioner violated Civil Service Law §209-a(1)(d) by, among other things, unilaterally imposing a requirement that all employees submit medical documentation for unscheduled absences from work during the holiday season — a disciplinary work rule restricting employees' access to sick leave.

Ultimately PERB, relying [1] jurisdictional deferral and [2] a merits deferral, sustained an Administrative Law Judge's determination that State had violated §209-a(1)(d) and ordered, among other things, that RPC cease and desist from implementing the new requirement and State initiated a CPLR Article 78 proceeding seeking to annul PERB's determination.

With respect to PERB's jurisdictional deferral policy, the Appellate Division noted that "PERB has consistently interpreted Civil Service Law §205(5)(d) to deprive it of jurisdiction over failure-to-negotiate improper practice charges when the underlying disputes are essentially contractual, in favor of resolving the dispute through the parties' grievance-arbitration machinery, or resort to the courts. Where the CBA provides the charging party with a reasonably arguable source of right with respect to the subject matter of the charge, PERB "has either dismissed the improper practice charge outright or conditionally dismissed the charge pursuant to its jurisdictional deferral policy."

The CBA is silent on the issue of requiring doctor certificates for sick leave during the holidays -- the thrust of PEF's improper practice charge. As PEF alleged that State had violated statutory rights under §209-a(1) (d) by failing to bargain over a past practice that was not specifically covered by the CBA the Appellate Division concluded that "the matter is not a breach of contract dispute and PERB's jurisdictional limitation was not triggered."

As to PERB's declining to exercise a merits deferral, which, in contrast to a jurisdictional deferral, "utilizes agreed-upon binding arbitration to determine contractual grievances in furtherance of the stated goal of the Taylor Law to encourage employers and public employees to agree upon dispute resolution procedures, the Appellate Division held that PERB's action was proper. Further, explained the court, such a decision merely results in a conditional dismissal and the improper practice charge remains subject to being reopened before PERB after the conclusion of the arbitration process."

As the "merits deferral policy has been judicially recognized in the past and the courts have generally deferred to PERB's interpretation in this regard, the Appellate Division ruled that "PERB's decision not to invoke such policy here was proper under the circumstances."*

Noting that a public employer violates §209-a(1) if it alters a past practice** that impacts a mandatorily negotiable subject, the court explained that "it is well-settled that sick leave is a mandatory subject of negotiation" as are the "procedures and policies for granting or terminating sick leave are mandatory."

Here, said the Appellate Division, the record demonstrates that, subject to certain exceptions, since 1982 RPC did not routinely require an employee to submit a doctor's certificate for each instance of unscheduled absence and none of these exceptions related to the new restrictions that RPC imposed. As the State has not presented any evidence demonstrating that it negotiated with PEF prior to altering this policy, substantial evidence supports PERB's determination that a past practice existed and that the State engaged in an improper practice by failing to engage in collective bargaining prior to altering the past practice to require medical documentation for individual days of sick leave.

Accordingly, the Appellate Division ruled that PERB had properly granted a remedial order*** in this matter which, among other things, mandated that the State to "cease and desist from enforcing the change in policy, except as detailed in RPC's original written policy."

* In reviewing these issues, a court's inquiry is "limited to whether PERB's decision was supported by substantial evidence which, in turn, depends upon whether there exists a rational basis in the record as a whole to support the findings upon which such determination is based.

** For a past practice to be binding, the Appellate Division said the practice must be "unequivocal and continued uninterrupted for a period of time sufficient under the circumstances to create a reasonable expectation among the affected bargaining unit employees that the practice would continue."

*** The remedial order also required the State to "[m]ake unit employees whole for wages and benefits lost, if any, as a result of [petitioner's] implementation of the at-issue sick leave usage policy concerning Christmas and New Year's holidays, with interest at the maximum legal rate."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07670.htm

Napping during work hours

The appointing authority filed disciplinary charges alleging that an employee [1] failed to make required patrol checks at the work site and falsely reported that he performed the required checks on his screen station log sheet and [2] neglect of duty by sleeping in his car during his shift time, such acts or omissions being in violation of the Department’s Uniform Code of Discipline.

OATH Administrative Law Judge Joycelyn McGeachy-Kuls found the facility manager credibly testified that it was the practice to fill out the log sheet at the end of the shift and that he believed that the worker completed his checks at the required time.

Further, the ALJ concluded that the manager corroborated the worker’s testimony that he was on meal break and not required to be working when he was found sleeping in his car. It was not disputed that the employee was not required to perform work during their meal breaks even though they are paid during this break time. Credible testimony established that the employee was only required to keep his radios with him and stay on facility premises during the meal break. The ALJ found that the appointing authority has produced no evidence to establish that resting or even dozing off briefly during the meal break is prohibited or rendered the employee incompetent to perform his job.

Judge McGeachy-Kuls found that the appointing authority failed to establish that the employee engaged in the charged misconduct and recommended dismissal of the charges.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1451.pdf