Holding that substantial evidence supported the New York City Teacher Retirement System's Medical Board's determination that Petitioner's injury "was not caused by an 'accident' within the meaning of the statutory scheme", the Court of Appeals noted that was declining to adopt a rule that "purposeful conduct by coworkers" can never be the basis for an award of Accidental Disability Retirement at this time

 

Matter of Rawlins v Teachers' Retirement Sys. of the City of N.Y.

2024 NY Slip Op 02840

Decided on May 23, 2024

Court of Appeals

Cannataro

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 23, 2024

No. 47

[*1]In the Matter of Michele Rawlins, Appellant,

v

Teachers' Retirement System of the City of New York, et al., Respondents.

Chester Lukaszewski, for appellant.

Janet L. Zaleon, for respondents.

CANNATARO, J.

Petitioner Michele Rawlins, a member of the respondent Teachers' Retirement System of the City of New York (TRS) and former school principal, commenced this CPLR article 78 proceeding to annul the determination of the TRS Medical Board that she is entitled to ordinary disability retirement benefits (ODR) but not accidental disability retirement benefits (ADR). We hold that substantial evidence supports the Board's determination that petitioner's injury was not caused by an "accident" within the meaning of the statutory scheme. In reaching this conclusion, we decline to adopt a rule that "purposeful conduct by coworkers" can never be the basis for an award of ADR. When a member's disability is alleged to have resulted from the intentional acts of any third party, the relevant question continues to be whether the injury-causing event was sudden, unexpected, and outside the risks inherent in the work performed.

Petitioner was diagnosed with post-traumatic stress disorder (PTSD) and became unable to perform her job responsibilities following a series of incidents at her former school in which a disgruntled food-service worker left her feeling threatened and harassed. The last such incident occurred in April 2019, when the worker entered the school [*2]after having been transferred to another work location and demanded to speak with petitioner, insisting that she had his "belt and wallet." Petitioner, who overheard this encounter from a nearby room, believed the worker's remarks had "sexual overtones" and felt she was being stalked. She fled the school building and never returned to work following the incident.

The Board denied petitioner's initial application for ADR on the ground that she "did not sustain an accident in the work setting." It based this determination on petitioner's description of the events in question, which occurred over the course of at least three months in early 2019. Petitioner subsequently reapplied for ADR and the Board adhered to its prior determination that no qualifying accident occurred, this time adding that "[p]urposeful conduct by coworkers giving rise to a disabling injury is not an accident within the meaning of the pension statute."

Petitioner commenced this CPLR article 78 proceeding to annul the Board's determination. Supreme Court denied the petition and dismissed the proceeding, holding that the Board's determination had a rational basis and noting that "New York Courts have held that intentional harassment or assault by a coworker does not constitute a service-related accident." The Appellate Division affirmed, reasoning that the Board "rationally found that petitioner's injuries resulted not from an accident in the work setting but from '[p]urposeful conduct' by a former coworker, which 'is not an accident within the meaning of the pension statute' " (205 AD3d 629, 630 [1st Dept 2022]). We granted leave to appeal (39 NY3d 914 [2023]) and now affirm.

II.

To qualify for ADR, a TRS member must show that their disability resulted from an "accident" sustained in the performance of their duties (see Retirement and Social Security Law § 605 [f]; Administrative Code of the City of NY § 13-551). Because the term "accident" is not defined by any applicable statute or regulation, this Court has "adopt[ed] the commonsense definition of a 'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact' " (Lichtenstein v Bd. of Trustees, 57 NY2d 1010, 1012 [1982], quoting Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am., 6 AD2d 97, 100 [1st Dept 1958], affd 7 NY2d 222 [1959]). Stated differently, an accident is "a sudden, unexpected event that was not a risk inherent in the work performed" (Matter of Kowal v DiNapoli, 30 NY3d 1124, 1125 [2018]; Matter of Kelly v DiNapoli, 30 NY3d 674, 678, 682, 684-685 [2018]). The Medical Board determines in the first instance whether a TRS member suffers from a disability resulting from a service-related accident (see Retirement and Social Security Law § 605 [f]; Administrative Code of the City of NY §§ 13-519, 13-550 [a], 13-551). On article 78 review, the Board's determination to deny ADR generally will not be disturbed if it is based on substantial evidence; that is, if it is rationally supported by the record viewed as a whole (see Kelly, 30 NY3d at 684; Borenstein v NY City Emples. Retirement Sys., 88 NY2d 756, 760-761 [1996]).

Initially, we disagree with the Appellate Division that the Board's determination can be upheld simply because the accident alleged in this case was caused by the purposeful acts of a coworker (see 205 AD3d at 630). We have so far left open the possibility that injuries caused by the intentional acts of a third party might in some cases satisfy the requirements for ADR, and continue to do so today (see Matter of Walsh v Scoppetta, 18 NY3d 850, 852 [2011]; see also McCambridge v McGuire, 62 NY2d 563, 567 [1984] [the focus of the inquiry is on "the precipitating cause of injury"]; Arthur A. Johnson Corp., 6 AD2d at 100 [observing that "an act, deliberate from the point of view of its initiator, may be considered an accident if seen through the eyes of its victim"]). Indeed, respondents do not urge us to hold that ADR is unavailable as a matter of law when an injury is caused by a coworker's purposeful acts; they instead posit that the Board is permitted to evaluate the underlying facts and circumstances in such a case and "find that the event was unpredictable, sudden, and fortuitous, and also clearly beyond the scope of the duties of the member's job." That measured approach parallels our analysis in Kowal, in which we sustained the denial of ADR to a court security officer who was injured when an assailant armed with 40 shotgun shells began to fire indiscriminately into a crowded courthouse lobby. Rather than rely on the assailant's obvious intent to kill or grievously injure, we reasoned that the officer "failed to establish that his injuries were caused by a sudden, unexpected event that was not a risk inherent in the work performed" (30 NY3d at 1125).

Here, similarly, the record supports the Board's determination that petitioner's injuries did not result from an event that was sudden, fortuitous, and unexpected (see id.; Kelly, 30 NY3d at 678; Lichtenstein, 57 NY2d at 1012; see also Matter of Picciurro v Board of Trustees of the N.Y. City Police Pension Fund, 46 AD3d 346, 348-349 [1st Dept 2007]; Pisani v Kelly, 30 AD3d 297, 298 [1st Dept 2006]; Sinopoli v McCall, 245 AD2d 868, 869 [3d Dept 1997], lv denied 92 NY2d 803 [1998], rearg denied 92 NY2d 921 [1998]; Impellizeri v Teachers' Retirement Sys., 173 AD2d 389, 390 [1st Dept 1991], lv denied 78 NY2d 859 [1991]). Although petitioner claims that her PTSD was brought on by the April 2019 occurrence, that event was merely the latest of a series of incidents in which the food-service [*3]worker trespassed on school property and acted in a confrontational manner toward petitioner, causing her significant stress and anxiety. As early as February 2019, petitioner informed school officials that the employee was continuously disobeying instructions to keep away from the school and that she was "concerned about the students and the building staff that have to endure his confrontational behavior." Following another incident in March, petitioner wrote that she "d[id] not feel comfortable with [the employee] given his behavior in the school." The Board rejected petitioner's initial ADR application on the ground that "based on the description of the events in question that occurred in the work setting on April 18, 2019, as well as the previous events in the work setting in February and March of 2019, [petitioner] has failed to demonstrate that an accident occurred in the work setting." Because that reasoning is supported by the evidentiary record, the Board's determination to deny ADR will not be disturbed on this appeal.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Order affirmed, with costs. Opinion by Judge Cannataro. Chief Judge Wilson and Judges Rivera, Garcia, Singas, Troutman and Halligan concur.

Decided May 23, 2024

 

Former medical office manager pleads guilty to defrauding New York State Health Insurance Plan

On May 20, 2024, New York State Comptroller Thomas P. DiNapoli and Ulster County District Attorney Emmanuel C. Nneji announced that Gina Bradshaw, an office manager for numerous doctors’ offices in Manhattan, has pleaded guilty to defrauding the New York State Insurance Plan (NYSHIP) out of more than $12,000 by submitting phony medical claims for reimbursement. She was arrested in September 2023 following a joint investigation by Comptroller DiNapoli, the Ulster County District Attorney ’s office, the Federal Bureau of Investigations (FBI) – Hudson Valley White Collar Crime Task Force, and the New York State Police.

“Ms. Bradshaw thought she could game New York State’s employee benefit system by submitting fake claims for reimbursement for personal gain,” said State Comptroller DiNapoli. “Thanks to my partnerships with District Attorney Nneji, the FBI, and the State Police, her scheme was exposed and she has been held accountable.”

Ulster County District Attorney Emmanuel C. Nneji said, “The collaboration among the various agencies that are part of the Hudson Valley White Collar Crime Task Force, as well as between our Office and the New York State Office of the Comptroller, is essential to the detection and prosecution of fraud against New York and Ulster County taxpayers. I thank all the investigators from across the state whose dedicated service led to accountability for the defendant in this case.”

New York State Police Superintendent Steven G. James said, “This guilty plea is a direct result of the cooperative and interactive efforts of the many agencies involved in this investigation. Ms. Bradshaw knowingly took advantage of the health insurance system to profit at her own expense. Financial crimes of any kind will not be tolerated in New York State. I thank the Comptroller’s Office, Ulster County District Attorney’s Office, FBI and Hudson Valley White Collar Crime Task Force for their partnership in exposing this fraud.”

Gina Bradshaw, 50, of Maybrook, N.Y., worked as an office manager for multiple doctors in Manhattan. Through her husband’s employment with New York state, her family was enrolled in NYSHIP. When a NYSHIP member uses an out-of-network health care provider they can have a portion of the medical costs they paid to a provider reimbursed by a check from NYSHIP sent directly to them. In order to obtain unwarranted payments, Bradshaw used her positions to submit false claims to NYSHIP, purporting that services were provided to her by two medical offices where she worked although they never occurred. She received over $12,000  in reimbursement checks through her scheme.

The investigation into her activities began with a complaint from United Healthcare Special Investigations Unit, who assisted with the investigation.

Bradshaw pleaded guilty to Health Care Fraud in the third degree. 

 ###

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.ny.gov, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

 

New York State's Court of Appeals clarifies the operation of the rebuttable presumption set forth in the State's Workers' Compensation Law §21(1), which provides that when an injury arises in the course of a worker's employment it is presumed to arise out of that worker's employment

 

Matter of Timperio v Bronx-Lebanon Hosp.

2024 NY Slip Op 02723

Decided on May 16, 2024

Court of Appeals

Halligan

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 16, 2024

No. 46

[*1]Justin Timperio, Respondent,

v

Bronx-Lebanon Hospital et al., Appellants. Workers' Compensation Board, Appellant.

Sarah L. Rosenbluth, for appellant New York State Workers Compensation Board.

Caryn L. Lilling, for appellants Bronx-Lebanon Hospital et al.

Arnold N. Kriss, for respondent Justin Timperio.

HALLIGAN, J.

In this appeal, we clarify the operation of the rebuttable presumption set forth in Workers' Compensation Law § 21 (1), which provides that when an injury arises in the course of a worker's employment, it is presumed to arise out of that worker's employment and therefore is compensable, absent substantial evidence to the contrary. In cases involving assaults that occur at work, a lack of evidence as to the motivation for the assault does not rebut that presumption. Thus, the presumption applied and was unrebutted here, and the Appellate Division's contrary conclusion was error.

I.

On June 30, 2017, Henry Bello, a former employee of Bronx-Lebanon Hospital (BLH), entered the hospital wearing a doctor's white medical coat, under which he hid a loaded AR-15 rifle, ammunition magazines, and a juice container filled with gasoline. He proceeded to the 16th floor of the hospital, a non-public area, where petitioner Justin Timperio was working as a first-year resident. Bello opened fire, killing one doctor and wounding five members of the medical staff—including Timperio—before killing himself. Bello and Timperio were strangers prior to the shooting; they never worked at BLH at the same time and had no other prior contact.

BLH notified the Workers' Compensation Board (WCB) of Timperio's injuries in July 2017. The hospital subsequently requested an administrative decision from the WCB to establish a claim under the Workers' Compensation Law (WCL) and enter awards. While the matter was proceeding before a Workers' Compensation Law Judge (WCLJ), Timperio filed a negligence action in federal court against BLH and the store that sold Bello the rifle he used in the shooting. After that court rejected BLH's attempt to have the case dismissed, holding that Timperio's injuries were not compensable because "there [was] no evidence suggesting that the shooting originated in work-related differences" (see Timperio v Bronx-Lebanon Hosp. Ctr., 384 F Supp 3d 425, 431-433 [SD NY 2019]), it stayed the action pending resolution of this workers' compensation claim (Timperio v Bronx-Lebanon Hosp. Ctr., 2020 WL 8996683, *1 [SD NY, Mar. 9, 2020, No. 18 Civ. 1804 (PGG)]). In September 2020, a WCLJ determined that Timperio's injuries were compensable under the WCL ^[FN1]. Timperio appealed to the WCB, which affirmed the decision.

The Appellate Division reversed (203 AD3d 179, 184-185 [3d Dept 2022]). The court applied the correct standard that, to be compensable under the WCL, an injury must have arisen "out of and in the course of a [worker's] employment" and that under WCL § 21 (1), an injury that arose in the course of employment is presumed to have arisen out of employment as well (id. at 184, citing WCL § 10 [1] and Matter of Rosen v First Manhattan Bank, 84 NY2d 856, 857 [1994]). The court also acknowledged our holding that "[a]n award of compensation may be sustained even though the result of an assault, so long as there is any nexus, however slender, between the motivation for the assault and the employment" (id. at 185, quoting Matter of Seymour v Rivera Appliances Corp., 28 NY2d 406, 409 [1971]). The court, however, deemed "such nexus . . . lacking." It held that the lack of record evidence establishing any employment-related animus "was sufficient to rebut the presumption" in WCL § 21 (1) and concluded that the claim was therefore not compensable (id.). We granted leave to appeal (39 NY3d 910 [2023])^[FN2]. Because the Appellate Division erred in its application of WCL § 21(1)'s presumption, we now reverse.

II.

Determinations by the WCB must be upheld where they are supported by substantial evidence in the record (see Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186, 192-193 [2012]). Workers' Compensation Law § 21 (1) provides that "[i]n any proceeding for the enforcement of a claim for compensation under this chapter, it shall be presumed in the absence of substantial evidence to the contrary . . . [t]hat the claim comes within the provision of this chapter."

We have previously addressed the operation of this presumption in several cases involving workplace assaults. Less than a decade after enactment of WCL § 21 (1), we considered the case of a "dairyman's chauffeur" who, while driving his employer's car and delivering cheese, was randomly stabbed by an "insane man" who "stabbed any one near him" (Katz v Kadans & Co., 232 NY 420, 421 [1922]). We concluded that because the chauffeur was "sent into the street on his [employer]'s business" and then injured from "exposure to the risks of the street," the injury "necessarily [arose] out of his employment" and therefore was compensable (id.). Decades later, we affirmed a compensation award to an employee assaulted by a man "he had never previously seen," because under the WCL § 21 (1) presumption, "[w]hen an injury is sustained in the course of employment it will be presumed, as a matter of law, that it did arise out [*2]of the employment" (Slade v Perkins, 42 AD2d 667, 668 [1973], affd 33 NY2d 988 [1974]). More recently, we reiterated the same principle in Matter of Rosen v First Manhattan Bank (84 NY2d 856, 857 [1994]).

As stated in WCL § 21 (1) and recognized by this Court, the presumption is rebuttable by "substantial evidence" establishing that it was not the workplace itself that exposed the employee to harm. But where the assault occurs in the course of employment and there is no evidence as to its motivation, the presumption is triggered and is not rebutted (see McKinney's Cons Laws of NY, Book 64, Workmen's Compensation Law § 21 at 143 [1922 ed] [explaining the presumption of WCL § 21 (1) is "sufficient in a close or evenly balanced case to turn the scale in favor of the employee. And where there is no substantial evidence to overcome the presumption an award will be made"]). Once it has been established that an employee was assaulted "in the course of" employment, the presumption—unless rebutted—obviates the need for an affirmative showing that the assault arose "out of" the employment.

The Appellate Division essentially inverted Seymour's "nexus" standard by requiring the Board to come forward with evidence of a nexus to employment. Instead, as we made clear in Rosen, Seymour stands for the principle that "an assault which arose in the course of employment is presumed to have arisen out of the employment, absent substantial evidence that the assault was motivated by purely personal animosity" (Matter of Rosen v First Manhattan Bank, 84 NY2d 856, 857 [1994], citing Seymour, 28 NY2d at 409; see also Seymour, 28 NY2d at 409 [presumption cannot be rebutted by the inference of personal animosity "in the absence of substantial evidence to support it"]). To the extent the Appellate Division has read Matter of Seymour to require an additional affirmative showing of a "nexus" with employment when there is a workplace assault, such a showing is not required.

This reading accords with the text of WCL § 21 (1) and the purpose of the WCL, which is to " 'protect[ ] work[ers] and their dependents from want in case of injury' on the job" (Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129, 134 [1994], quoting Post v Burger & Gohlke, 216 NY 544, 553 [1916]). To that end, the WCL establishes a "broad scheme of compensation" intended to ensure a "swift and sure source of benefits to injured employees" (Crosby v State of N.Y., Workers' Comp. Bd., 57 NY2d 305, 313 [1982]), including in circumstances where an employee might not be able to obtain relief through a common law tort action.

Here, it is undisputed that the assault occurred in the course of Mr. Timperio's employment, thereby triggering the WCL § 21 (1) presumption. It is also undisputed that the record includes no evidence of the motivation for the assault or any indication of a prior relationship between the assailant and the claimant; Bello and Timperio never worked together, did not know each other, and had no prior communication. The Appellate Division therefore erroneously disturbed the WCB's determination that the claim is compensable.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the decision of the Workers' Compensation Board reinstated.

Order reversed, with costs, and decision of the Workers' Compensation Board reinstated. Opinion by Judge Halligan. Chief Judge Wilson and Judges Rivera, Garcia, Singas, Cannataro and Troutman concur.

Decided May 16, 2024

Footnotes

Footnote 1: A different WCLJ had found Timperio's injuries compensable in an initial proceeding that neither Timperio nor his counsel attended. That decision was vacated due to Timperio's absence, and the September 2020 proceeding followed.

Footnote 2: Where, as here, an employer or its carrier has filed a Workers' Compensation Law claim on behalf of an employee, requested an administrative determination on the claim, and opposed claimant's arguments that no workers' compensation award should be made, the employer and its carrier are aggrieved by an Appellate Division order reversing an award in claimant's favor and dismissing the claim. To the extent Matter of Parks v Weaver (14 NY2d 546 [1964]) provides to the contrary, it should not be followed.

New York State's Annual Industrial Development Agencies report released by State Comptroller Thomas P. DiNapoli

New York's local Industrial Development Agencies (IDAs) reported 4,320 active projects with a record high total value of $132 billion in 2022, an increase of $5 billion (3.9%), from 2021, according to State Comptroller Thomas P. DiNapoli’s annual report.

“IDAs were created to help grow local economies, businesses and job markets,” DiNapoli said. “The tax breaks they provide businesses can impact local tax collections, however, and New Yorkers should be mindful about weighing the benefits these projects bring to their communities against their cost. My office reports the numbers on local IDAs to help increase their transparency and make them more accountable to taxpayers.”

While the number of active projects has remained relatively stable since 2012, reported project values have risen steadily. County IDAs were responsible for 61.8% of all active IDA projects in 2022, followed by towns (17.7%), cities (12.7%), New York City (7.2%), villages (0.5%) and city-town IDAs (0.2%).

DiNapoli’s report summarizes the most recent annual data, which is self-reported by IDAs through the Public Authorities Reporting Information System. The data is not independently verified by the State Comptroller’s Office. While most IDAs operate on a calendar-year basis, several, including the New York City IDA, do not.

DiNapoli found IDAs reported the following:

• The 4,320 active IDA projects would create an estimated 213,887 jobs during their lifespan, with a median salary of $42,000. Another 224,234 existing jobs would be retained, with a median salary of $45,430. In addition, the projects are estimated to create 36,607 temporary construction jobs.
• The number of net jobs gained (reflecting current jobs reported by projects minus initial jobs reported) was 204,147 as of 2022, an increase of 15.2% from 2021.
• Total tax exemptions for IDA projects in 2022 amounted to nearly $2 billion, up $63 million, or 3.3%, over 2021. Property tax exemptions represented $1.7 billion, or 87.5% of total tax exemptions.
• Almost $854 million was collected through payment in lieu of taxes (PILOT) agreements in 2022. Net tax exemptions (total tax exemptions minus PILOTs) totaled approximately $1.1 billion, an increase of 4.3% from 2021 and nearly double the $555 million in 2012.
• On a regional basis, net tax exemptions were much higher downstate, with IDAs in New York City, Long Island and Mid-Hudson regions together reflecting 57.6% of the total. Per capita, the New York City IDA provided the lowest net tax exemptions ($26.58 per person) in 2022. The Capital District had the highest ($99.44 per person).
• IDAs’ total revenues of $123 million in 2022 were down $9.3 million from 2021. Charges for services accounted for 53.8% of the reported revenues.
• Total IDA expenses in 2022 were $76 million, down $3.5 million from 2021 (4.4%). The New York City IDA reported the highest expenses ($5.97 million), followed by Genesee County ($4.07 million) and Erie County ($3.86 million). Regionally, IDAs in the Finger Lakes region collectively reported the highest expenses ($12.5 million) while those in the Mohawk Valley had the lowest ($3 million).
• IDAs reported 336 new projects with approval dates in 2021 or 2022, led regionally by the Finger Lakes (66 new projects), Western New York (50 new projects), and Mid-Hudson (47 new projects).
• The largest new IDA project in 2022 by project value ($1.4 billion) was Westchester County IDA’s Regeneron Phase II (aka LOOP Road) project. The project is scheduled to end in 2037 and is projected to create 700 permanent jobs.
• The number of clean energy projects increased 52.9% between 2021 and 2022, from 85 projects to 130 projects. Projects classified as clean energy saw the greatest percentage change in net tax exemptions per project, an increase of 57.7%.

DiNapoli’s office examines IDA costs and outcomes in several ways, including performing audits of the operations of individual IDAs, providing training to IDA officials on various topics, and encouraging improvements in IDA procedures and reporting.

Annual Report
Performance of Industrial Development Agencies in New York State

IDA Data by Region
Office of the New York State Comptroller - 2022 IDA Data by Region

For additional information contact Rebecca Dangoor, 212-383-1388.

###

Regulation permitting employees appointed under the ‘‘HELP’’ Program to take promotion examinations adopted

NOTICE OF ADOPTION Promotion Examinations I.D. No. CVS-07-24-00002-A Filing No. 395 Filing Date: 2024-05-06 Effective Date: 2024-05-22.

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action: 

Action taken: Amendment of section 4.2(f) of Title 4 NYCRR. Statutory authority: Civil Service Law, section 6(1) Subject: Promotion examinations. Purpose: To permit employees appointed under the ‘‘HELP’’ Program to take promotion examinations.

Text or summary was published in the February 14, 2024 issue of the Register, I.D. No. CVS-07-24-00002-P.

Final rule as compared with last published rule: No changes.

Text of rule and any required statements and analyses may be obtained from: Jennifer Paul, NYS Department of Civil Service, Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, email: commops@cs.ny.gov.

Assessment of Public Comment: The agency received no public comment.