The Workers' Compensation Board's determination whether a claimant violated §114-a of the Workers' Compensation Law will not be disturbed if supported by substantial evidence

The Workers' Compensation Board [Board] rejected the employer's [Employer] claim the there were procedural errors in its employee's [Claimant] claims for benefits and said that the Board would exercise its discretion to grant review of the application filed by the Claimant in consideration of "Claimant's substantial completion of question number 13 on the application for workers' compensation benefits form." The Board then reversed the decision of the Workers' Compensation Law Judge [WCLJ] holding that that Claimant had violated §114-a Workers' Compensation Law,  finding there was insufficient evidence to support the WCLJ's determination. The employer appealed the Board's decision.

The Appellate Division said that Employer principally argued that Claimant's response to question number 13 was not complete and that the Board therefore lacked the authority and discretion to review Claimant's application for benefits, citing 12 NYCRR 300.13(b).

The court rejected the Employer's argument, holding that the Board has the "authority to adopt reasonable rules consistent with and supplemental to the provisions of the Workers' Compensation Law," and the Chair of the Board may "make reasonable regulations consistent with the provisions of the statutory framework." 

Noting that Employer was correct that 12 NYCRR 300.13 [b] [1] of the Board's regulations require an applicant seeking Board review "to fill out the RB-89 form completely and in the proper format," the Appellate Division said that the Board's regulations "do not mandate denial of an incomplete application for Board review." Rather, the court explained that the regulations provide that such an "application for review maybe denied" [sic]  by the Board, in its discretion, where the application "does not comply with prescribed formatting, completion and service submission requirements."

Considering Claimant's response to question number 13 on her application for Board review, which listed numerous documents in support of her administrative appeal, the Appellate Division held that the Board:

[1] acted within its discretion in granting review of Claimant's application: and

[2] acted within its discretion to excuse any alleged defects relating to the timeliness and proper service of Claimant's application for Board review.

Addressing the merits of Claimant's application for benefits, the Appellate Division pointed out that §114-a(1) of the Workers' Compensation Law provides that a claimant who, for the purpose of obtaining workers' compensation benefits, or to influence any determination related to payment thereof:

1. 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;"

2. For purposes of Workers' Compensation Law §114-a (1), a fact is material "so long as it is significant or essential to the issue or matter at hand;" and

3. An omission of material information "may constitute a knowing false statement or misrepresentation".

However, the Board, declared the Appellate Division, is the sole arbiter of witness credibility and its determination as to whether a claimant violated §114-a Workers' Compensation Law "will not be disturbed if supported by substantial evidence."

After considering the evidence in the record the Appellate Division opined that the Board's finding that Claimant did not make a misrepresentation of a material fact to obtain workers' compensation benefits "is supported by substantial evidence and will not be disturbed."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06832.htm

 

Former Potter Town clerk arrested for the alleged theft of nearly $24,000 of Town monies

State Comptroller Thomas P. DiNapoli, Yates County District Attorney Todd Casella, and Yates County Sheriff Ronald Spike announced the arrest of former clerk of the Town of Potter Julie Brown for allegedly stealing nearly $24,000 in cash payments to the town.

Brown allegedly stole cash payments made to the town for property taxes and fees for marriage licenses, dog licenses, hunting permits, and building permits. She was employed by the town from January 1, 2018 until May 21, 2019, when she resigned.

Brown was charged with corrupting the government in the second degree (a Class C felony); grand larceny in the third degree / public servant (a Class C Felony); two counts of tampering with public records in the first degree (a Class D felony); scheme to defraud in the first degree (a Class E felony); and official misconduct (A Class A misdemeanor).

Arraigned in Yates County Court, Brown was released on her own recognizance. The arrest was a result of a joint investigation between the State Comptroller’s Office, the Yates County District Attorney’s Office and the Yates County Sheriff's Office.

Since taking office in 2007, Comptroller DiNapoli has been committed to fighting public corruption and encourages the public to help fight fraud and abuse. 

Allegations of fraud involving public funds may be reported by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a report online at investigations@osc.ny.gov, or by mailing a report to the Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

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A challenge to releasing summaries of disciplinary records of New York City police officers to the public dismissed as moot following the effective date of the repeal of Civil Rights Law §50-a

Following an announcement that redacted summaries of New York City police officers' disciplinary records would be released to the public, the Patrolmen's Benevolent Association of the City of New York, Inc. [PBA] filed a petition pursuant to CPLR Article 78 seeking a court order permanently enjoining the City of New York City from publicly releasing such summaries.

Supreme Court granted the PBA's petition on the ground that "the public disclosure of the information therein would violate Civil Rights Law §50-a."

New York City appealed the Supreme Court's ruling whereupon the Appellate Division unanimously reversed the lower court's decision "on the law" and dismissed the PBA's petition as moot.

Citing Cornell Univ. v Bagnardi, 68 NY2d 583, the Appellate Division explained that as Civil Rights Law §50-a had been repealed effective June 12, 2020, "the sole basis for the permanent injunction no longer exists." Accordingly, said the court, PBA's petition was rendered moot as the result of the repeal of Civil Rights Law §50-a.

The court noted that the parties had briefed this appeal prior to the repeal of §50-a and opined that it must consider the issue of mootness nostra sponte** "because it is related to [the court's] subject matter jurisdiction."  

As no alternative grounds for relief were raised in the Article 78 petition filed by the PBA nor addressed or reserved by Supreme Court, the Appellate held that the PBA's petition was moot and dismissed its appeal.

* See §1 of Chapter 96 of the Laws of 2020.

** Nostra sponte describes an action by a panel of judges taken on the panel's own initiative and not pursuant to a request by a party in the litigation. In contrast, the term sua sponte is used to describe an action by a single presiding jurist without prompting or suggestion from a party in the litigation then pending adjudication.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06866.htm

 

Audits issued by the New York State Comptroller during the week ending November 20, 2020

New York State Comptroller Thomas P. DiNapoli announced the following municipal and school district audits were issued during the week ending November 20, 2020.

Click on the text highlighted in color to access the complete audit report.

MUNICIPAL AUDITS

Village of Fort Plain – Leave Benefits (Montgomery County) Village officials did not establish appropriate controls over employee leave time. Auditors found the board did not establish comprehensive leave benefit policies and procedures. Officials also did not accurately maintain employee leave records. Leave used and compensatory time (comp time) earned was not always properly recorded or supported by village records. As a result, 133 hours of accrued comp time, valued at approximately $4,600, was not supported by an employee’s time and attendance records. In addition, 33 hours of comp time and eight hours of personal time, valued at approximately $900, were used but not deducted from employee leave records.

Town of Locke – Financial Condition (Cayuga County) The board did not effectively manage the town’s financial condition. As a result, it levied more taxes than necessary to sustain operations. The board also did not adopt budgets with sound estimates, nor did it monitor budgetary results during the year. In addition, unrestricted fund balances as of December 31, 2019 in the general and highway funds and water district were excessive, ranging from 89 percent to 536 percent of actual expenditures. The board did not adopt formal fund balance, reserve and budgeting policies, along with multiyear financial and capital plans.

City of Newburgh – Budget Review (Orange County) The city’s proposed budget includes appropriations of $67,066,159. The city’s use of approximately $4.6 million of fund balance to close gaps in the budget decreases the fund balance that is available to cover unforeseen circumstances. The city could potentially face shortfalls based on revenue estimates for sales and use tax.

Town of Palermo – Procurement and Fuel Inventory (Oswego County) Town officials did not always use competitive methods when procuring goods and services or properly account for and monitor diesel and gasoline fuel. Town officials purchased $299,298 in goods and services that should have been competitively procured, however, $101,121 was purchased without competition. Town officials also overpaid a vendor by almost $2,500.

Rockland County– Budget Review The significant revenue and expenditure projections in the proposed budget are reasonable. The review considered county officials’ projections in response to the potential impact of the COVID-19 pandemic. The county’s proposed budget includes a tax levy of $146,052,165.

 SCHOOL DISTRICT AUDITS

Fayetteville-Manlius Central School District – Professional Services (Madison County and Onondaga County) District officials appropriately sought competition through requests for proposals or quotes for professional services totaling approximately $4.3 million (93 percent) of those reviewed. The district had written agreements with 18 of 19 professional service providers and payments were made in accordance with the terms of the agreements.

Tioga Central School District – Cash Management (Tioga County) Interest earnings were not maximized. District officials did not develop and manage a comprehensive investment program or comply with the district’s investment policy. Had officials invested available funds in a financial institution with higher interest rates, the district’s interest earnings could have increased by $215,120.

Tioga Central School District – Health Insurance and Special Education Cost Savings (Tioga County) District officials could achieve cost savings by offering an acceptable health insurance buyout incentive in lieu of health insurance coverage. Savings could range between approximately $10,000 and $251,000. District officials could also save approximately $43,500 by providing select special education programs in-house.

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