Workers Compensation Form DB-271S - Disability Benefits Statement of Right revised

The Workers’ Compensation Board (Board) recently revised the New York State Disability Benefits Statement of Rights (Form DB-271S) to simplify the language and ensure conformity with other Board-issued materials.

In recent messages the Board reminded employers that in the event an employee is absent from work due to a disability for more than seven consecutive days, the employer must provide the employee with Form DB-271Swithin five business days after the employee’s seventh consecutive day of absence, or within five business days after the employer has received notice that the employee’s absence is due to disability, whichever is later.

Visit the Board’s website for more information on disability benefits.

Questions? Contact the Board's "Customer Service" resources at (877) 632-4996.

Resolving a challenge to an arbitrator's decision and award

The petitioner [Union] commenced this proceeding pursuant to CPLR Article 75 seeking to vacate a decision by Supreme Court that an arbitration opinion and award holding that the termination of one of its members was in accordance with the parties' collective bargaining agreement [CBA] with the employer [County] and Supreme Court's granting the County's cross-petition seeking to confirm the arbitrator's opinion and award.

Union had appealed Supreme Court's ruling, contending that Supreme Court was incorrect and that the arbitrator's opinion and award were irrational. In addition, Union argued that the arbitrator had exceeded his authority.

Citing Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, the Appellate Division sustained Supreme Court's ruling, explaining that:

1. "An arbitration award may be vacated on three narrow grounds: 'it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power';

2. "An award is irrational if there is no proof whatever to justify the award, noting the decision in Matter of Town of Greece Guardians' Club, Local 1170, Communication Workers of Am. [Town of Greece], 167 AD3d 1452);

3. "... in this instance the arbitrator's award was justified by the language of the CBA, the CBA's reference to the rules for the Classified Civil Service of the [County] and the parties' past practices," in effect rejecting the Union's claim that the opinion and award were irrational; and concluded that

4. "Contrary to [Union's] further contention, the arbitrator did not exceed his authority by effectively rewriting the CBA or ignoring its terms, and instead interpreted the existing terms of the CBA after finding the language of the CBA to be ambiguous."

Click HERE to access the Appellate Division's decision posted on the Internet.

 

The Appellate Division affirms Supreme Court's ruling allowing New York City retirees to have the ability to opt out of the City's Medicare Advantage Plan

In the Matter of NYC Organization of Public Service Retirees, Inc., [OPSR] et al. v Renee Campion [NYC] et al. Supreme Court granted the OPSR's petition to the extent of:

[i] allowing New York City retirees to have the option of opting out of the City's Medicare Advantage Plan;

[ii] enjoining NYC from passing along any costs of the retirees' current plan to the retirees or their dependents except where such plan rises above the H.I.P-H.M.O threshold provided by Administrative Code of City of NY §12-126;

[iii] requiring NYC to ensure that all retirees and their dependents pay the deductible for only one plan for the calendar year 2022; and

[iv] denied NYC's motion to dismiss the proceeding brought pursuant to CPLR Article 78.

The Appellate Division unanimously affirmed Supreme Court's ruling, without costs, explaining:

1. The issue raised on this "appeal is one of pure statutory interpretation subject to de novo review, and not one requiring deference to the special expertise of respondent agency";

2. Administrative Code §12-126(b)(1) provides: "The city will pay the entire cost of health insurance coverage for city employees, city retirees, and their dependents, not to exceed one hundred percent of the full cost of H.I.P.-H.M.O. on a category basis"; and

3. Supreme Court correctly determined that Administrative Code §12-126(b)(1) requires NYC "to pay the entire cost, up to the statutory cap, of any health insurance plan a retiree selects."

This interpretation, said the Appellate Division, "comports with the plain language of the provision as well as its legislative history," citing Matter of Albany Law School v New York State Off. of Mental Retardation and Dev. Disabilities, 19 NY3d 106. 

Further, opined the Appellate Division, "Nothing in the statutory text or history supports [NYC's] interpretation that the provision is satisfied so long as [it pays] for the costs of one of the health insurance plans offered to retirees, which [it] determined to be the Medicare Advantage Plus Plan."

Click HEREto access the text of the Appellate Division's decision.

 

Failure to timely serve the required notice of claim bars the court from addressing the merits of allegations of unlawful discrimination

In this action Plaintiff alleged that his employer, a Municipality, and certain named individuals "appearing separately", had unlawfully discriminated against him on the basis of his race, subjected Plaintiff to a hostile work environment, and retaliated against Plaintiff in violation of New York State's Human Rights Law.*

Supreme Court, however, found that Plaintiff failed to serve a timely "notice of claim," which was a condition precedent to commencing his action and granted Municipality's motion for summary judgment, dismissing the complaint against it and against each named individuals "appearing separately". Plaintiff appealed.

The Appellate Division affirmed Supreme Court ruling "with one bill of costs" to the named individuals appearing separately and filing separate briefs, explaining that Plaintiff failed to serve a timely notice of claim, which was a condition precedent to commencing his action. 

Citing Seifullah v City of New York, 161 AD3d 1206, the Appellate Division said contrary to the Plaintiff's contention, the filing of a notice of claim was a condition precedent to the maintenance of his action and Plaintiff's reliance upon Margerum v City of Buffalo (24 NY3d 721) was misplaced.

* See Executive Law §296.

Click HEREto access the Appellate Division's decision posted on the Internet.

 

Determining if an injury experienced in a training situation constitutes an accident for the purposes of RSSL §363

A firefighter [Petitioner] filed an application for accidental disability retirement benefits claiming that he was permanently disabled as a result of an injury to his left eye that was sustained during a mandatory firefighter training exercise.

The New York State and Local Police and Fire Retirement System denied Petitioner's application holding that the incident did not constitute an accident within the meaning of Retirement and Social Security Law §363 and Plaintiff was awarded performance of duty retirement benefits.

Ultimately an administrative hearing was conducted and the Hearing Officer denied Petitioner's application based on the Hearing Officer's finding that the underlying incident was not an accident as it occurred during the course of Petitioner's routine employment duties and was a risk inherent in the performance of such duties.

The Comptroller [Respondent] sustained the Hearing Officer's decision, prompting the Petitioner to commence the instant CPLR Article 78 proceeding to challenge Respondent's determination.

Citing Matter of Bohack v DiNapoli, 197 AD3d 1384, the Appellate Division noted that Petitioner "bore the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law"* and Respondent's determination in this regard will be sustained "if supported by substantial evidence." 

The Appellate Division explained "an injury that results from the performance of ordinary employment duties and is a risk inherent in such job duties is not considered accidental".

According to the accident report prepared the day of the incident by the deputy chief to whom Petitioner reported the incident, which Petitioner signed, Petitioner indicated that he was injured in a "collision with fellow firefighters" during the live-fire training exercises. Petitioner acknowledged during the hearing and confirmed "it was normal to bump into things during such zero-visibility exercises."**

In the words of the Appellate Division:

1. "Petitioner provided various explanations for describing the incident shortly after it occurred as the result of a collision rather than kicking;" BS

2. The Hearing Officer credited — "as 'more reliable, credible and plausible' — [Petitioner's] more contemporaneous account of the incident reflected in the accident report, over his subsequent, inconsistent testimony, which was found to be 'unsubstantiated,' in concluding that the incident did not constitute an accident."***

The Appellate Division opined than under settled law, "an incident is not an accident within the meaning of the Retirement and Social Security Law where the underlying injuries result from an expected or foreseeable event arising during the performance of routine employment duties or occur during the course of a training program constituting an ordinary part of the employee's job duties and the normal risks arising therefrom." citing Matter of O'Mahony v DiNapoli, 157 AD3d 1107,

As the record reflected that the training exercise program "arose from, and was a required part of, [Petitioner's] routine duties as a firefighter and given that the attendant risks of that training", the Appellate Division found that "substantial evidence supports the determination denying Petitioner's application for accidental disability retirement benefits."

* The Retirement and Social Security Law defines an "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" [See Matter of Kenny v DiNapoli, 11 NY3d 873]

** Petitioner testified that, as part of his standard duties as a firefighter, he engaged in training exercises at the training center several times a year that included live-fire search and rescue operation drills where controlled fires were set, reducing visibility to zero. 

*** The conflict in Petitioner's accounts presented a credibility issue for the Hearing Officer and, ultimately, the Comptroller to resolve. 

Click HEREto access the Appellate Division's decision posted on the Internet.

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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(requires Adobe Reader).