ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

February 21, 2023

Self-insured employer's claim for reimbursement for workers' compensation payments it made to a firefighter for a work-related injury rejected

In this appeal the City of Newburgh Fire Department [Department] challenged the Workers' Compensation Board's [WCB] decision that the Department, a self-insured workers' compensation employer, was not entitled to reimbursement or credit for certain payments it made to a Claimant [Firefighter].

Firefighter suffered a disabling work-related injury in the course of his performing his firefighting duties and established a claim for workers' compensation benefits. Ultimately classified as permanently partially disabled, Firefighter was paid his full salary during his period of disability by the Department. The Department filed requests for reimbursement of those wages against any award of workers' compensation benefits.*

In April 2016 Firefighter's application for performance of duty disability retirement pursuant to Retirement and Social Security Law §363-c was approved and provided for a 50% pension. Although full wage payment to Firefighter pursuant to General Municipal Law §207-a(1) were discontinued upon Firefighter's disability retirement, the Department commenced paying Firefighter the difference between the amount received from his pension and the amount of his regular wages under color of General Municipal Law §207-a[2].

In 2019, Firefighter submitted a request for additional benefits, claiming that his "permanency classification" entitled him to retroactive workers' compensation awards from April 2016 and continuing, which payments had been discontinued. The Department sought credit against any workers' compensation awards based upon its supplemental pension payments pursuant to General Municipal Law §207-a(2).

Ultimately Firefighter was awarded benefits "retroactive to April 30, 2016 and continuing". However, the Workers' Compensation Law Judge [WCLJ] found that the Department was not entitled to reimbursement against the workers' compensation awards for pension payments made to Firefighter under General Municipal Law §207-a(2).

The Department appealed but ultimately the WCB affirmed the decision of the WCLJ, noting that "any determination as to the setoff/reimbursement of the workers' compensation payments against the pension supplement the [Department] pays pursuant to General Municipal Law §207-a(4-a) was outside its jurisdiction." The Department's subsequent application "for reconsideration and/or full Board review was denied" and it appealed this ruling by the WCB.

The Appellate Division said was "unpersuaded by the [Department's] contention that because [Firefighter] is receiving a performance of duty disability pension, as opposed to an accidental disability retirement pension, the matter is distinguishable from Matter of Harzinski v Village of Endicott (126 AD2d 56 [3d Dept 1987]) and, as such, [the Department] is entitled — pursuant to Workers' Compensation Law §25(4)(a) or §30(2) — to reimbursement of its General Municipal Law §207-a(2) payments against [Firefighter's] workers' compensation awards."

Workers' Compensation Law §25(4)(a), said the court, provides that in the event an "employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability," the employer "will be entitled to reimbursement out of any unpaid workers' compensation award (emphasis provided by the court in its decision)" and Workers' Compensation Law §30(2) provides for the reimbursement of "any salary or wages paid" to a firefighter pursuant to General Municipal Law §207-a against any workers' compensation award.

Explaining that "because the supplemental retirement benefits paid by the [Department] were not wages, the workers' compensation awards were not reimbursable to the [Department] by way of Workers' Compensation Law §25(4)(a) or §30(2)," the Appellate Division sustained the WCB's determination.

To the extent that the Department argued that limiting "any offset or reimbursement to future General Municipal Law §207-a(2) supplemental payments" as set forth in General Municipal Law §207-a(4-a) is inappropriate and thwarts the statutory scheme,** the court said the Board made no determination with regard to the applicability of that statute, noting that its determination in that regard would be inappropriate. In the words of the court: "The employer does not challenge this finding on appeal and, as such, it is not properly before us."

* Any award of workers' compensation to Firefighter was to be designated reimbursable to the employer.

** General Municipal Law §207-a(4-a) provides that "[a]ny benefit payable pursuant to [General Municipal Law §207-a(2)] to a person who is granted retirement for disability incurred in performance of duty pursuant to [Retirement and Social Security Law §363-c] shall be reduced by the amount of the benefits that are finally determined payable under the workers' compensation law by reason of accidental disability."

 

Click HERE for access to the decision of the Appellate Division posted on the Internet.

 

New York Public Personnel Law E-books available 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.


February 18, 2023

Advisory Memorandum 23-01, Paid Parental Leave, issued by the New York State Department of Civil Service

The text of Advisory Memorandum 23-01 will be found at:
https://www.cs.ny.gov/ssd/Manuals/SPMM/2800AutoPositPersnl/Advisory 

Advisory Memorandum 23-01, in a PDF format is available at:
https://www.cs.ny.gov/ssd/pdf/AM23-01.pdf.

To view previous Advisory Memoranda issued by the Department of Civil Service, visit: https://www.cs.ny.gov/ssd/Manuals/SPMM/

 


An article posted by The Week Magazine captioned "What are 'copycat layoffs'"?

"They say imitation is the sincerest form of flattery — just not when it comes to job cuts" according an article posted on the Internet by The Week Magazine.

Click HERE to access the article.

February 17, 2023

Amendments to Section 75 of the Civil Service Law

 Reminder

§75.1(b) of the Civil Service Law has been amended effective April 1, 2023 and §75.2a of the Civil Service Law has been amended effective March 1, 2023.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com