The Workers' Compensation Board is required address all the arguments raised by Claimant seeking benefits on administrative appeal and provide an explanation for its determination

This applicant for Workers' Compensation benefits [Claimant] worked as a mass transit customer service agent for the self-insured employer [Employer]. On January 14, 2021, Claimant was confronted by an emotionally disturbed person. This person came up to Claimant, then in her enclosed booth, and banged on the windows while screaming and threatening to kill her. Thereafter, claimant took a three-month unpaid leave from work under the Family and Medical Leave Act (29 USC §2601 et seq.) and was treated by a private medical provider. 

When claimant returned to work she suffered a panic attack, and her supervisor advised her to file a workers' compensation claim. Claimant was referred to a medical provider authorized by the Workers' Compensation Board, who diagnosed her with causally-related anxiety and acute stress reaction.

Employer submitted a First Report of Injury form on June 15, 2021, indicating the Claim Type as "M — Medical Only" and the Agreement to Compensation as "L — With Liability." The Workers' Compensation Board issued a Notice of Case Assembly and advised the parties and Claimant filed a claim for workers' compensation benefits on June 21, 2021, asserting that she sustained post-traumatic stress disorder [PTSD]. The following day, June 22, 2021, Claimant began treating with a licensed social worker, who diagnosed her with causally-related PTSD, opined that she remained unable to return to work at that time and submitted a medical report to the Board.

Employer controverted the claim and argued that, because the Board had not indexed the case, the 25-day time period in which to file a notice of controversy under Workers' Compensation Law §25 (2) (b) had not been triggered. A Workers' Compensation Law Judge [WCLJ] found prima facie medical evidence of PTSD, agreed that Employer was entitled to controvert the claim and, thus, afforded it the opportunity to schedule an independent medical examination. 

Employer later filed a Subsequent Report of Injury controverting and denying the claim based on, among other grounds, no compensable accident. Claimant's treatment providers were deposed in December 2021, and claimant testified at the next hearing regarding the incident and her inability to work.

The WCLJ credited Claimant's testimony but disallowed the claim, finding that the incident did not qualify as an accident in that Claimant testified that she frequently experienced verbal abuse while working in the transit system and, thus, did not establish that the stress that caused her psychiatric injury was greater than that which other similarly-situated workers experienced in a normal work environment.

Ultimately the Workers' Compensation Board [Boar] affirmed the decisions of the WCLJ, agreeing that, because it never indexed the claim, the provisions of Workers' Compensation Law §25 (2) (b) did not apply. The Board further upheld the WCLJ's finding of no compensable accident. Claimant appealed the Board's determination.

The Appellate Division reversed the Board's determination, noting the Board did not address any of the related arguments raised by Claimant, including:

1. Employer's First Report of Injury form, indicating acceptance of the claim with liability and that report was binding on Employer; and

2. Employer's subsequent actions in controverting the claim violated the purpose of 12 NYCRR 300.37(c).

The matter was remitted to the Board "for it to satisfy its obligation to address the issues raised by Claimant on administrative appeal and provide an explanation for its determination."

The Appellate Division also observed "The Attorney General elected not to participate in this matter, involving significant questions of statutory and regulatory interpretation, while urging this Court not to draw any adverse inference from that lack of participation. This was also the case the last time these arguments were raised to this Court" (see Matter of Williams v New York City Tr. Auth., 214 AD3d 1099) and "strongly encourage such participation on any potential appeal following this remittal".

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

 

Municipal and School Audits released by New York State Comptroller Thomas P. DiNapoli

On December 7, 2023, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

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

Village of Schaghticoke – Board Oversight (Rensselaer County)

The board did not provide adequate oversight of financial operations. As a result, the board cannot be sure it has accurate financial information to make decisions and gauge the village’s financial condition. The board did not establish controls or other oversight procedures to compensate for the clerk-treasurer performing all functions of the financial and recordkeeping duties or audit the clerk-treasurer’s records and reports for the fiscal year ending May 31, 2022.

 

Putnam/Northern Westchester Board of Cooperative Educational Services (BOCES)

The board did not always ensure non-instructional employee overtime was properly monitored, approved or calculated. The 15 highest overtime earners received overtime totaling $254,820 during the audit period. A review determined BOCES officials may have been able to reduce overtime by up to $28,337, or almost 11%. BOCES officials paid a total of $66,295 to 13 employees for work on Saturdays that included $22,091 additional pay for working overtime. However, the BOCES Classified Employees’ Association collective bargaining agreement supports a Tuesday through Saturday work week. Therefore, this overtime may have been avoided if some employees worked Tuesday through Saturday instead.

 

City of Newburgh – Budget Review (Orange County)

The city’s use of approximately $3.4 million of general fund balance to close gaps in the budget decreases the fund balance that is available to cover unforeseen circumstances. The city has also appropriated approximately $2.5 million of sewer fund balance and appropriated $24,770 of fund balance for the water fund. However, the water fund already has a deficit fund balance of $58,722. In addition, the city should refrain from including the $1.5 million revenue and corresponding expenditures in their 2024 adopted budget for the New York State Touring Route Program because there is no assurance the state will appropriate additional money for this program. Also, the city could potentially face shortfalls based on revenue estimates for sewer usage and sale of metered water and the budgeted overtime funding for police of $1.1 million is likely underestimated by a total of at least $715,000. During the review of the city’s proposed 2024 budget, two conflicting proposed budget documents were posted to the city’s website.

 

Town of Vestal – Former Police Chief’s Separation Agreement (Broome County)

Town officials paid severance payments to the former police chief, totaling $229,251, pursuant to a separation agreement with the town. While the separation agreement included $13,383 for earned, but unused leave accruals, neither the board or other town officials were able to provide any additional written documentation to support the town’s decision to pay the additional $215,868 in severance payments. 

 

City of Salamanca – Employee Benefits (Cattaraugus County)

Separation payments were not properly authorized, adequately supported or accurately calculated. This resulted in unsupported and possibly improper payments being made. Of the 23 separation payments made between April 1, 2020 and Oct. 31, 2022, to 18 employees, totaling approximately $306,000,  seven payments totaling approximately $13,400 did not have adequate support and six additional payments totaling approximately $6,800 included leave balances that were not authorized to be paid at separation. This included $3,400 paid to one employee that did not leave city employment. In addition, one payment totaling approximately $45,000 was based on more than nine years’ worth of leave accrual records.

 

City of Salamanca – City Comptroller’s Financial Reports (Cattaraugus County)

The former comptroller used improper accounting practices and did not complete timely and accurate annual and monthly financial reports. As a result, the council did not have accurate and up-to-date financial information when making significant financial decisions. Fiscal year-ending 2021 general fund cash was overstated by approximately $330,000 and annual financial reports for 2018 through 2021 were not filed until after the resignation of the former comptroller. The longest overdue report was more than four years past its due date and monthly financial reports included erroneous reporting of revenue and expenditures. In addition, the mayor and council did not ensure annual reports were accurate and submitted in a timely manner. Monthly financial reports were inaccurate because the former comptroller was using improper accounting practices that the council did not detect.

 

Town of Colesville – Procurement (Broome County)

Officials did not always use a competitive process when purchasing goods or services and some officials were unfamiliar with the town’s procurement policy requirements. Of the 28 purchases reviewed totaling $1.2 million, officials did not properly seek competition for three purchases totaling $170,575.

 

St. Lawrence-Lewis Board of Cooperative Educational Services (BOCES) – Capital Assets  

BOCES officials did not properly monitor and account for Information Technology (IT) assets. As a result, officials cannot ensure that assets are in BOCES’ possession and protected against loss or unauthorized use. Officials did not maintain accurate and up-to-date inventory records, affix identification tags to all assets, periodically conduct physical inventories, and ensure sensitive data was erased before assets with hard drives were disposed of. Sixty-nine out of 140 recorded IT assets could not be located. Also, 30 out of 95 assets on hand were not listed in the inventory records. In addition, none of the 39 IT assets purchased and placed in service during the 2022-23 school year were added to the inventory records and none of the 25 computer disposals tested had evidence that the hard drives were sanitized prior to disposal. Furthermore, 11 other computers were sanitized and disposed of but were still active in the inventory records. The inventory records also did not always show the proper location of IT assets and sometimes were missing key information such as serial numbers, locations, purchase dates and costs.

 

Tonawanda City School District – Procurement (Erie County)

The board and district officials did not always use a competitive process to procure goods and services. As a result, they did not comply with district policies or state law and may have paid more than necessary for goods and services. The board and district officials procured 167 interactive panels for $684,132 without obtaining competitive bids and did not obtain quotes or request proposals in accordance with district policies for 23 purchases totaling $102,378.

 

Village of Greene – Investment Program (Chenango County)

Village officials developed a comprehensive investment program but did not effectively manage the program. During the 22-month audit period, the village earned approximately $5,800 from money on deposit in the village’s checking and savings accounts, which had an average daily balance of approximately $3.7 million. Had officials considered other legally permissible investment options, the village may have earned approximately $96,900. Officials also did not prepare monthly cash flow forecasts to estimate funds available for investment or monitor investments and did not formally solicit interest rate quotes or consider other legally permissible investment options.

 

Dobbs Ferry Union Free School District – Facilities Department Overtime (Westchester County)

District officials did not properly approve and monitor overtime worked by employees. As a result, employees may have worked unnecessary overtime. Officials paid 10 employees $198,716 in overtime for emergency, non-emergency and absenteeism during the 21-month audit period. Approximately $186,330 of overtime work to be performed was not properly approved. Officials paid 10 employees a total of $36,734 in overtime to conduct 270 building checks. However, officials lacked the required building check forms to support that 267 checks were performed, and officials did not follow up with the employees to confirm the checks were conducted. While the overtime costs for the audit period examined accounted for 24% of department employees’ total compensation, officials did not perform a cost benefit analysis or determine other options that may have reduced overtime.

 

University Preparatory Charter School for Young Men – Payroll (Monroe County)

School officials did not always accurately compensate employees or require adequate support for hours worked as payroll errors went undetected and resulted in unnecessary and erroneous payments. Auditors reviewed policies and documents and examined payroll-related records for 25 of the 138 individuals employed by the school and determined that officials lacked records to support compensation totaling $18,527 paid to three hourly employees and twelve employees received pay that was not consistent with their employment agreements, authorized pay rates or board policy resulting in compensation errors totaling $5,188. Officials also could not support they provided sufficient information for the board to perform its oversight duties or ensure that the chief executive officer authorized salaries within the board-approved range. In addition, officials did not adequately segregate payroll duties or establish sufficient compensating controls, which could allow other discrepancies to occur.

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Application to reopen a matter earlier adjudicated by the Commissioner of Education

In this appeal to the Commissioner of Education the Petitioner sought to reopen Application of Rickson, 63 Ed Dept Rep, Decision No. 18,347, which denied her application to remove certain school officers and employees from their positions with the Albany-Schoharie-Schenectady-Saratoga Board of Cooperative Educational Services.

The Commissioner denied the Petitioner's application to reopen Commissioner's Decision No, 18,347, explaining Petitioner "has not established grounds to reopen the underlying decision in accordance with the standard set forth in 8 NYCRR 276.8".

Click HERE to read more.

 

Plaintiff's tort claims, claims of violations of the New York City Human Rights Law and allegations that he was forced him to retire from his position dismissed

Plaintiff, a former detective with the New York City Police Department [NYPD], commenced this action against the defendants [Defendants] alleging a number of tort claims and claims under the New York City Human Rights Law and alleged that Defendants' conduct forced him to retire from the NYPD.

Citing General Municipal Law §50-e and Umeh v New York City Health & Hosps. Corp., 205 AD3d 599, the Appellate Division held that Plaintiff's tort claims were properly dismissed as untimely as he failed to file a notice of claim within 90 days of their accrual.

In contrast, the Appellate Division held that Plaintiff "has sufficiently alleged that Defendants failed to accommodate his disability under the New York City Human Rights Law in that his complaint alleges that Defendants were aware of Plaintiff's medical problems after his being hospitalized for COVID-19, but failed to engage him in a good-faith interactive process to assess his needs and consider his request to work from home.

These allegations, said the court, coupled with his allegation that he would have continued working if his request for reasonable accommodation was granted, are sufficient to state a cognizable claim for failure to accommodate his disability under the City's Human Rights Law.

Notwithstanding this, the Appellate Division held that Plaintiff's discrimination claim was properly dismissed, explaining "the complaint fails to allege that 'Plaintiff' was 'treated less well' or 'disadvantaged' because of his disability".

Addressing Plaintiff's retaliation claim, the court said "vague, generalized complaints" about a NYPD physician's treatment of him to an unspecified person or authority do not constitute protected activity nor did Plaintiff allege facts showing that Defendants "took an action that disadvantaged [him]" after his complaining about alleged discriminatory conduct.

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

 

Seeking a recount of the results of a school board election

Petitioner, an unsuccessful candidate for one of five open board seat, sought a vote recount, the voiding of board actions taken after the election if appropriate and the revision of the school district's policies relating to board elections.

The Commissioner held that the appeal must be dismissed for failure to join necessary parties as any person or entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party and must be joined as such. In an appeal regarding a school district election, the petitioner must join the district’s board of education as well as “each person whose right to hold office is disputed.

However, said the Commissioner of Education, even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. The Commissioner explained that "To invalidate the results of a school district election, the petitioner must either:  (1) establish not only that irregularities occurred but also that any irregularities actually affected the outcome of the election or were so pervasive that they vitiated the electoral process; or (2) demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law".

In contrast, the Commissioner noted that "It is well settled that mere speculation as to the existence of irregularities or the effect of irregularities provides an insufficient basis on which to annul election results, citing Appeal of Holliday, 60 Ed Dept Rep, Decision No. 17,947 and  Appeal of Dodson, et al., 54 id., Decision No. 16,764).

Further, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief. In addition, opined the Commissioner, Petitioner has not established that school district violated any legal requirement or that the act of which she complains affected the outcome of the election.

As to Petitioner’s argument is that the school district improperly failed to advise her of her right to observe the opening of absentee ballots on the evening of the election, the Commissioner viewed this argument is unavailing as the school district had submitted an affidavit from its district clerk asserting that the public was, in fact, invited to observe the opening and the tallying of absentee ballots on the evening of the election and that “numerous” observers did so.  

In any event, even assuming that the school district had not extended this invitation, the Commissioner noted it has been previously held that there is no requirement that absentee ballots be opened in the presence of the candidate or their representatives, citing Appeal of Jarmond, 56 Ed Dept Rep, Decision No. 17,108 and Appeal of Georges, 45 id. 453, Decision No. 15,380.

In sum, the Commissioner found Petitioner has failed to meet her burden of proof to establish that there were voting irregularities that affected the outcome of the election. 

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