Resolving conflicting medial evidence presented by medical experts

A New York City firefighter [Plaintiff] challenged the Subchapter II Medical Board of the New York City Fire Department Pension Fund [Medical Board], after evaluating Plaintiff and reviewing his medical records, concluded that although the Plaintiff was disabled due to his right hip injury, this disabling condition was causally related to chronic degenerative joint disease, not a work-related injury. Accordingly, Plaintiff's application for accidental disability retirement benefits was denied and the Plaintiff was retired on "ordinary disability retirement benefits." 

Supreme Court denied Plaintiff's appeal of the Board's decision to provide him with "ordinary disability retirement benefits" based on court's finding that Medical Board's determination was supported by credible medical evidence* and, thus, was not arbitrary and capricious. Supreme Court dismissed Plaintiff's complaint, which judgment was subsequently affirmed by the Appellate Division. 

The Medical Board had reviewed a recent report submitted by the Plaintiff's surgeon in which the surgeon had opined that the Plaintiff had "post-traumatic unilateral right hip arthritis following an on-the-job injury." The Medical Board, however, ultimately disagreed with the surgeon, stating that the surgeon had not identified any basis for his description of the Petitioner's "arthrosis as 'post-traumatic,' and that there was no evidence that the petitioner had unilateral arthrosis...."

Citing Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, the Appellate Division explained that "A firefighter is entitled to accidental disability retirement [benefits] when a medical examination and investigation shows that he or she is 'physically or mentally incapacitated for the performance of city-service as a natural and proximate result of an accidental injury received in such city-service'".

Following a medical examination, the Medical Board first determines whether the firefighter is disabled for performance of duty and ought to be retired and if it so finds,  , it must then determine whether the disability is "a natural and proximate result of an accidental injury received in such city-service". The Medical Board than certifies its recommendation on this issue to the Board of Trustees, which is ultimately responsible for retiring the city service member and determining the issue of service-related causation.

In the event, as was here the case, a vote by the Board of Trustees on an application for ADR benefits results in a tie, the application is denied, and the firefighter is awarded ordinary disability retirement benefits as the Court of Appeal ruled in Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund.

In CPLR Article 78 proceeding challenging this result, "the reviewing court may not set aside the Board of Trustees' denial of accidental disability retirement resulting from such a tie vote unless it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident." Further, said the Appellate Division, under this standard, "as long as there was any credible evidence of lack of causation before the Board of Trustees, its determination must stand." 

* In Matter of Santoro v Board of Trustees of N.Y. City Fire Dept. Art.1-B Pension Fund, 217 AD2d 660, the Appellate Division noted that credible medical evidence "is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered". Credible evidence "must be evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion". In reviewing a determination by the Board of Trustees, "the courts cannot weigh the medical evidence or substitute their own judgment for that of the Medical Board", [See Matter of Santoro v Board of Trustees of N.Y. City Fire Dept. Art.1-B Pension Fund, 217 AD2d 660]. The Appellate Division also opined that in the event there is "conflicting medical evidence and medical reports are presented to the Medical Board, it is solely within the province of the Medical Board to resolve such conflicts."

Click on the URL set out below to access the Appellate Division's decision in this case.

https://www.nycourts.gov/reporter/3dseries/2022/2022_06007.htm

 

 

Governor Hochul recognizes Middletown Police Officer for exceptional valor in the face of grave danger

Officer Evan Barone received the New York State Police Officer Medal of Valor, also known as the Governor's Police Officer of the Year Award, and is the first police officer from his Department to receive this recognition. Lieutenant Governor Antonio Delgado presented the medal on Governor Hochul's behalf during a ceremony conducted  in Middletown on November 2, 2022. 

Officer Barone was on routine patrol when he was flagged down by a woman whose ex-boyfriend refused to leave her home. Seconds after stopping to help, Officer Barone was shot and despite being seriously wounded, he fired back, struck his assailant, and protected the woman, several children and other adults who witnessed the unprovoked attack. 

Governor Hochul said that despite being seriously wounded, "Officer Barone demonstrated exceptional bravery by putting himself in harm's way to keep New Yorkers safe." In the words of the Governor, Officer Barone's "quick-thinking and swift action prevented anyone else from being harmed by the gunman. We honor him for his courage and service, and we also commend the thousands of police officers who work tirelessly to protect New Yorkers in communities across the state."

 

"Middletown Police Officer Evan Barone exemplifies what it means to be a police officer, which is why he is being awarded the New York State Police Officer Medal of Valor," said Lieutenant Governor Antonio Delgado.  "For demonstrating exceptional courage and unflappable bravery in the face of grave danger, Officer Barone is well deserving of this award, and I thank him and his fellow officers from the Middletown Police Department for their service to this community." 

 

Despite being seriously injured, Officer Barone returned fire and hit his assailant multiple times. He then secured custody of the gunman, protecting the woman with whom he was speaking and several children and adults nearby. Officer Barone then radioed for help, applied a tourniquet to his own wound to control the bleeding and waited for medical assistance.  

 

Lieutenant Governor Delgado presented the award to Officer Barone morning of November 2, 2022, on Governor Hochul's behalf during a ceremony at the Paramount Theatre in Middletown. The incident for which the officer was honored occurred on August 29, 2020, and in October 2022, the individual responsible for the attack was sentenced to 58½ years to life in prison.

 

In nominating Officer Barone for the 2020 award, the Middletown Police Department provided the following account of the incident:    

   

"Officer Barone was on routine patrol as part of the department's Neighborhood Enhancement Unit, when he was flagged down by a woman outside of her home. He stopped, got out of his marked patrol vehicle, and spoke with her. The woman told Officer Barone that her ex-boyfriend was inside her home, armed with a gun and refused to leave. As the woman talked with Officer Barone, her ex-boyfriend burst through the front door of the home and onto the porch, firing a 9mm handgun. A bullet struck the officer's left forearm and lodged in his body armor."   

   

New York State Division of Criminal Justice Services Commissioner Rossana Rosado said "I am honored to join Lieutenant Governor Delgado in presenting this award on behalf of Governor Hochul. Officer Evan Barone's selfless act reminds us that our officers put their lives on the line every time they put on their uniforms and that they are willing to make that sacrifice for us. We thank him and his colleagues for all they do for Middletown and New York."

 

DCJS coordinates the work of the award selection committee, members of which represent law enforcement agencies and police union leadership. The committee considered nominations of 30 officers from eight police departments and two sheriffs' offices before selecting Officer Barone for the recognition. Since its inception in 1984, the award has been presented to 122 officers from 21 different agencies since its inception.

 

The anatomy of an effort to vacate an arbitration award

A SUNY community college and its sponsoring county, [Employers] are parties to a collective bargaining agreement [CBA] with an Employee Organization [Union] representing members of the community college's faculty.

When Employers served disciplinary charges on one of Union's members, a college professor, and suspended the professor without pay while such charges were pending, the Union filed a grievance alleging that the suspension without pay violated certain terms set out in the CBA*. 

The grievance was denied by the Employers and the Union filed a demand to submit the matter to arbitration.

Following an arbitration hearing, the arbitrator found that the matter was arbitrable and further determined that Employers were required, under the terms of the CBA, to continue to pay the professor during the period of the suspension. Employers then commenced a CPLR Article 75 action seeking to vacate the arbitrator's decisions and award.

Supreme Court denied the petition and Employers appealed the Supreme Court's ruling to the Appellate Division. The Appellate Division opined that the following were the relevant Articles of the CBA concerning the issues to be resolved by the arbitrator:

1. Article 3 which stated that Employers reserve the powers and rights conferred upon them by federal and state law, and the exercise of such powers and rights shall "be limited only by the specific and expressed terms of [the CBA]";

2. Article 12 which sets out a four-step grievance procedure, culminating in arbitration as the last step in that process; and

3. Article 45 which, in general, provides for the procedure for bringing disciplinary charges against a faculty member and section E of Article 45, in particular, which provides that "[p]ending the hearing and determination of charges, [Employers] may suspend the [faculty member]".

With respect to Employers' contention "that the dispute was not arbitrable because Union failed to follow the first two steps of the grievance procedure in that Union did not provide notice of its grievance to the proper individuals within the mandated time frames", the Appellate Division noted that "[q]uestions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrator, particularly in the absence of a very narrow arbitration clause or a provision expressly making compliance with the [procedural] limitations a condition precedent to arbitration".

As the CBA contains no express provision requiring strict compliance with the grievance procedure as a prerequisite to arbitration, the question of whether Union complied with that procedure — in particular, its notice requirements and time limitations — was for the arbitrator to resolve. The arbitrator found that, despite the lack of strict compliance with the first two steps of the grievance procedure, Employers had actual notice of Union's grievance well before the deadline for filing it and therefore the matter was arbitrable. The Appellate Division said that it found "no basis to disturb this conclusion" by the arbitrator.

Addressing Employers' claim that the arbitrator went beyond the powers granted to the arbitrator by Articles 3 and 12 of the CBA in evaluating Union's compliance with the grievance procedure, the Appellate Division ruled that "this contention is without merit as Employers have made no showing that the arbitrator's determination in this regard violated public policy, was irrational or exceeded a specifically enumerated limitation on his power."

As to the Employers' contention that the arbitrator misinterpreted the suspension provision contained in Article 45, §E of the CBA, the Appellate Division opined that "[a]n arbitrator is charged with the interpretation and application of the parties' agreement and courts are obligated to give deference to the decision of the arbitrator." Accordingly, "[i]f the contract is reasonably susceptible to different conclusions, including the one given by the arbitrator, courts will not disturb the award."

With respect to the question of whether suspension of an employee during the pendency of disciplinary charges should be with or without pay, the Appellate Division commented that in view of ambiguity of §E of Article 45 concerning this issue the arbitrator looked to another provision of the CBA prohibiting termination of an employee before arbitration and reasoned that suspension without pay prior to arbitration would be tantamount to termination.

In addition, the Appellate Division's decision reports that the arbitrator also relied on a parol evidence of previous instance in which Employers, pursuant to the same contract language at issue in this case, provided full pay to an employee who had been suspended on similar charges.** Inasmuch as this determination, in the view of the Appellate Division, "was not irrational", it declined to substitute its judgment for that of the arbitrator.

Accordingly, the arbitrator's order was affirmed by the Appellate Division, with costs. 

* The merits of the underlying disciplinary charges were addressed in a separate proceeding and are not the subject of this appeal. 

** Citing Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326, the Appellate Division's decision held the arbitrator was free to consider "parol evidence" concerning a past practice given the ambiguity the arbitrator found in Article 45, §E of the CBA.

Click here to access the Appellate Division's ruling.

Audits and reports issued by the New York State Comptroller in October, 2022

New York State Comptroller Thomas P. DiNapoli announced the audits listed below for New York State Departments and Agencies, New York City Departments and Agencies, Municipalities and School Districts were issued during the month of October, 2022.

Click on the text highlighted in colorto access the complete audit report.

State Departments, New York City Departments and Agencies and Authorities

Metropolitan Transportation Authority (MTA): Employee Qualifications, Hiring, and Promotions (Follow-Up) (2021-F-27) A January 2019 audit determined that, while the MTA allows employees to transfer across its subsidiary agencies, it did not ensure they met the qualifications for the new position into which they were hired or promoted, including education, experience, and operating license requirements and, for operating titles such as Train Operators, Conductors, and Bus Operators, drug/alcohol screening and medical examinations. The follow-up review found that the MTA made progress in addressing the issues identified. Of the 14 recommendations from the initial report, four were implemented, seven were partially implemented, two were not implemented, and one was no longer applicable.

 

New York City Department of Youth & Community Development (DYCD): Oversight of Afterschool and Summer Youth Employment Contracts (Follow-Up) (2022-F-11) The initial audit, issued in June 2019, determined DYCD was not adequately overseeing its contracts with the Greater Ridgewood Youth Council, Inc., totaling $13.9 million, to administer DYCD’s summer employment and afterschool programs. Auditors identified numerous contract and program policy violations, such as improper hiring practices, inappropriate expenditures, and duplicate compensation costs for overlapping services. The follow-up found DYCD made only limited progress in addressing the issues identified in the initial report. Of the report’s 10 recommendations, five were partially implemented and five were not implemented.

 

Department of Civil Service: Empire Plan Members With Dual Family Coverage (Follow-Up) (2022-F-13) The initial audit, issued in January 2021, determined that for certain organizations that participate in NYSHIP, their employees may be enrolled in two Family coverages – as both a primary policy holder and a dependent of a NYSHIP-eligible family member who also elected Family coverage. The dual coverages are duplicative and associated with significant unnecessary premium costs for both the member and the participating organization. Participating organizations may be unaware that employees have dual Family coverage, and unable to counsel them regarding more cost-effective options, because Civil Service, citing Health Insurance Portability and Accountability Act (HIPAA) rules, does not share data that would allow them to make this determination. The follow-up found that Civil Service implemented both recommendations from the initial audit; however, officials also concluded that information sharing was not feasible, despite auditors pointing out HIPAA exceptions that would allow it.

 

Department of Health (Medicaid Program): Accuracy of Medicaid Eligibility Determined by NY State of Health (Follow-Up) (2022-F-15  The initial audit, issued in September 2020, identified $16.6 million in improper and questionable Medicaid payments. The improper payments stemmed from processing weaknesses in the NY State of Health (NYSOH) system as well as a lack of eligibility and enrollment data reconciliations that resulted in recipients, including some who were deceased, remaining eligible beyond their actual eligibility period. The follow-up found that the Department of Health made some progress addressing the problems identified, such as correcting certain deficiencies in NYSOH data processing. However, further actions are required to prevent additional improper payments. Of the initial report’s six audit recommendations, four were partially implemented and two were implemented.

 

New York City Civilian Complaint Review Board (CCRB): Complaint Processing (2020-N-9) CCRB investigates civilian complaints against the New York City Police Department that allege excessive or unnecessary force, abuse of authority, discourtesy, and use of offensive language. The audit found that CCRB does not complete complaint investigations in a timely manner – taking an average of 14 months in the first half of 2021. Lengthier time frames can drive cases closer to the 18-month statute of limitations and jeopardize CCRB’s ability to hold officers accountable for misconduct. CCRB did not have measures in place to pre-emptively monitor lengthy investigations or to analyze all delays to determine their root cause in order to proactively address and prevent them. In addition, CCRB did not always comply with its established procedures and guidelines intended to ensure that investigations of complaints are conducted in compliance with New York City regulations, that the resulting recommendations are appropriate, and that substantiated cases of misconduct are advanced for disciplinary action.

 

Department of Health (DOH): Medicaid Program – Improper Overlapping Medicaid and Essential Plan Enrollments (2020-S-66) Weaknesses within DOH’s automated claims processes resulted in recipients who should have been enrolled in either Medicaid or the State’s Essential Plan (EP) being improperly enrolled in both – causing both Medicaid and EP programs to make claim payments on their behalf. For the audit period, auditors determined that, during the periods of overlapping enrollment, DOH made Medicaid payments totaling $40.3 million and EP payments totaling $18.4 million. Case reviews by DOH are required to determine which program made improper payments.

 

New York City Department of Small Business Services (SBS): Selected Aspects of Supporting Small Businesses (2020-N-10) SBS’ Employee Retention Grant (ERG) Program was intended to assist businesses and non-profit organizations across all five boroughs retain employees during the COVID-19 pandemic. SBS awarded 3,411 in grants totaling nearly $25 million, but did not provide adequate oversight overall to ensure the grants were awarded and used as the Program intended. Among other issues, auditors found that SBS awarded grants to businesses that did not meet the eligibility requirements, awarded some businesses higher amounts than they were entitled to, and did not follow up with businesses to verify that they retained their employees, as required.

Municipalities and School District

Arlington Fire District – Station Number 5 Renovation (2022M-54)

Baldwinsville Central School District – Fuel Inventory (2022M-106)

Mount Pleasant Blythedale Union Free School District – Procurement (2022M-86)

North Greenbush Common School District – Claims Auditing (2022M-112)

Penfield Central School District – Procurement (2022M-76)

Starpoint Central School District – Network Access and Application User Permissions (2022M-101)

Village of Hancock – Insurance Withholdings (2022M-108)

Village of Ocean Beach – Clerk-Treasurer Compensation (2022M-79)

York Central School District – Financial Management (2022M-96)

York Central School District – Network Access Controls (2022M-93)

 

New York Public Personnel Law's summaries of judicial and quasi-judicial decisions moving to a new Internet web site

New York Public Personnel Law's almost 6,000 case summaries and research materials will be relocated to a new and different Internet web site. 

Individuals interested in continuing to access these case summaries and research materials are invited to email their name, affiliation and preferred email address to nyppl@nycap.rr.com using "Information" as the "Subject" of the email.

NYPPL's New York State Public Personnel Law ebooks,  listed below, will continue to be available for purchase from BookLocker. 

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE. 

A Reasonable Disciplinary Penalty Under the Circumstances- The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE. 

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on 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 about this e-book click HERE. 

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.