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.