Resolving conflicting medical evidence in evaluating an application for accidental disability retirement

Supreme Court rejected Petitioner's challenge to the denial of his application for accidental disability retirement benefits by the New York City Employees' Retirement System's [NYCERS] Medical Board and dismissed the proceeding brought pursuant to CPLR Article 78. The Appellate Division unanimously affirmed the Supreme Court's decision.

The Appellate Division explained that the finding of NYCERS' Medical Board that Petitioner was not disabled was supported by its physical examination and interview of Petitioner. Although Petitioner argued that the Medical Board ignored his medical history, the court said that the any conflicting medical evidence was for the Medical Board to resolve.

The Appellate Division further opined that the disability finding of the Social Security Administration was not dispositive of the Medical Board's disability determination, citing Matter of Barden v New York City Employees' Retirement Sys., 291 AD2d 215. 

Additionally, noted the court, the finding of the medical arbitrator, who examined Petitioner after the Medical Board made its determination, did not warrant Article 78 relief.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01256.htm

Appointing authority's application for disability retirement filed on behalf of an employee injured on the job rejected

In this action to review a determination of New York State Employees’ Retirement System [NYSERS] denying an appointing authority’s [Petitioner] application for disability retirement benefits Petitioner filed on behalf of a Correction Officer [Officer] injured in the line of duty, the Appellate Division concluded that the NYSLERS determination “finding that [Officer] was not permanently incapacitated from performing the duties of a light-duty assignment” was supported by substantial evidence and thus “it will not be disturbed.”

Officer had sustained various injuries while attempting to subdue an inmate and underwent various surgical procedures. With the exception of performing light-duty work for one year, Officer remained out of work since the date of the incident, during which time Officer collected benefits pursuant to General Municipal Law §207-c. 

Ultimately Petitioner filed an application for disability retirement benefits upon the Officer's behalf.* Although NYSLERS had initially evaluated Petitioners' application based upon whether Officer was permanently incapacitated from performing the full duties of a Correction Officer, following receipt of additional documentation from Petitioners, NYSLERS concluded that Petitioners' application should be assessed under the light-duty standard set forth in 2 NYCRR 364.3 (b). A Hearing Officer reached a similar conclusion, finding, among other things, that denial of petitioners' application was warranted because Officer was capable of performing light-duty work. The Comptroller adopted the Hearing Officer's findings and conclusions, resulting in Petitioner’s filing a CPLR Article 78 proceeding to challenge the Comptroller's determination.

Citing 2 NYCRR 364.3 [b] which provides that in the event an employee "has been continuously assigned to light, limited or restricted duties for at least two years prior to the date [upon which the] application for disability retirement benefits was filed with the Comptroller . . ., the Retirement System shall render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment." the Appellate Division rejectected Petitioners argument that application of the cited regulation is arbitrary and capricious given that Officer actually worked in her light-duty assignment for less than one year and “did not work in any capacity after September 21, 2010,” the Comptroller has held that the phrase "continuously assigned" — as applied in the context of 2 NYCRR 364.3 (b) — "does not mean continuous performance and is not interrupted by absence[s] from work while on sick leave."

In other words, said the Appellate Division, “the dispositive inquiry is whether the employee has been continuously assigned to light-duty work — not, as [Petitioners] argue, whether such employee has in fact continuously performed the light duties to which he or she was assigned”.

As the record reflected that Officer was continuously assigned to a light-duty position beginning in October 2009 — even though Officer concededly did not work at all after September 2010 and given the continuous nature of Officer's assignment, the Appellate Division held that the light-duty standard set forth in 2 NYCRR 364.3 (b) was properly applied to Petitioners' application for disability retirement benefits filed on behalf of Officer.

* Petitioners were authorized to file such an application pursuant to General Municipal Law §207-c (2) and Retirement and Social Security Law §605(a)(2).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00904.htm

Retired police officer seeking a special pistol carrying permit denied “retiree service letter”

Petitioner in this CPLR Article 78 action had asked his former employer [Respondent] for a “retiree service letter” that would assist Petitioner in obtaining a special pistol carrying permit. His former employer denied Petitioner’s request.

Supreme Court found that Respondent’s denial of Petitioner’s request for a retiree service letter was neither arbitrary or capricious, which ruling was unanimously  affirmed by the Appellate Division. The Appellate Division noted that Petitioner had no right to issuance of a retiree service letter "since his authority to carry firearms had been revoked … and had not been restored at the time he retired."*

Petitioner concedes that he was not authorized to carry a firearm under Respondent's policy at the time of his separation from employment, as he surrendered his firearm beforehand due to an injury and he failed to seek  reinstatement of such authorization. 

Further, opined the Appellate Division, Petitioner cannot demonstrate a violation of the Americans with Disabilities Act based on Defendant's refusal to issue the retiree service letter as Petitioner concedes that his injury rendered him unable to perform his duties as a law enforcement officer and there is no factual basis to conclude that Defendant’s decision was made in bad faith rather than as part of an across-the-board policy.

Nor, said the court, did Respondent’s denial of Petitioner’s request violate Petitioner's Second Amendment rights as such denial did not preclude him from applying for a permit under normal legal procedures.

* The Appellate Division’s decision notes that even assuming Petitioner had a private right of action under the Law Enforcement Officers Safety Act of 2004, Public Law 108-277, Petitioner cannot demonstrate that he met the qualification standards within one year of Petitioner’s retirement.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01240.htm

Termination of a public employee based on conduct that, if proven in a court of law, would have constituted a felony.

Supreme Court denied the petition to annul an arbitration award that sustained the employee's [Petitioner] termination from employment and dismissed the proceeding brought pursuant to CPLR Article 75. The Appellate Division sustained the lower court's determination.

The termination of the Petitioner was based on conduct that, if proven in court, would have constituted a felony but was not against public policy. The Appellate Division explained that although Correction Law Article 23-A provides that "no employment . . . held by an individual . . . shall be . . . acted upon adversely by reason of the individual's having been previously convicted of one or more criminal offenses. here observed the court, the conviction at issue occurred during Petitioner's employment and was not within the ambit of Article 23-A of the Correction Law.

Further, said the court, New York City's Human Rights Law (NYCHRL)* provides that it an unlawful discriminatory practice to "take adverse action against any employee by reason of such ... employee having been convicted of one or more criminal offenses" as that provision only applies in situations were the adverse employment actions based on arrests or criminal accusations are "in violation of subdivision 16 of section 296 [of the Correction Law]. Nor should an individual suffer adverse consequences "merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law." Significantly, the Appellate Division noted that the Petitioner had pled guilty to the offending acts and thus they were more than accusations.

Citing Peckham v Calogero, 12 NY3d 424, the Appellate Division concluding that the denial of Petitioner's request for reinstatement to his employment was not arbitrary and capricious as under the governing regulations** the appointing authority "may consider such application but is not required to do so, and any approval thereof is discretionary."

The court then opined "It was not irrational for [the appointing authority] to conclude that in seeking reinstatement [P]etitioner merely sought to relitigate issues presented approximately six weeks before his reinstatement request, and decided three weeks beforehand by a neutral arbitrator in the grievance proceeding pursuant to a collective bargaining agreement, which resulted in his termination."

* See Administrative Code of City of NY §8-107[10][a].

** Personnel Rules and Regulations of City of NY [55 RCNY Appendix A] §6.2.6[a]-[b].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01008.htm

The Steel Bar: Pittsburgh Lawyers and the Making of America

Author Ron Schuler accurately characterizes his book, The Steel Bar: Pittsburgh Lawyers and the Making of America, as sounding like modern America. Indeed, each of the issues addressed in this work explore the historical drama of a developing United States "[f]rom the Whiskey Rebellion through the bloody Homestead Strike, to the Johnstown Flood, the creation of the world’s largest corporation, the witch hunts against anarchists in the 1910s and Communists in the 1950s, to a seminal constitutional battle over the rights of workers, a 20-year long federal antitrust prosecution, and the suspicious suicide of a district attorney accused of graft.

"The Steel Bar is the epic story of the rise and fall and rebirth of the Pittsburgh lawyer, from the earliest days of the Pittsburgh bar to the modern era, against the backdrop of American history." 

More at https://www.steelbarpittsburgh.com/book.

Among the reviews of this book posted on the Internet are the following: 

https://www.booktopia.com.au/the-steel-bar-ron-schuler/book/9781733184113.html

https://triblive.com/local/pittsburgh-allegheny/book-details-history-of-allegheny-countys-legal-community/