Disability benefits - volunteer firefighters

Disability benefits - volunteer firefighters
Griffo v Onondaga Hill VFD, 256 AD2d 858

Although the Workers’ Compensation Board found that Greg Griffo had sustained a “permanent partial disability” as a result of two back injuries he suffered while serving as a volunteer firefighter, it also determined that Griffo had not “suffered a loss of [his] earning capacity” within the meaning of Section 3.8 of the Volunteer Firefighters’ Benefit Law.

Section 3.8 defines the term “loss of earning capacity” as the volunteer’s inability to perform his or her usual work, or some reasonably alternative employment, as a result of a service-related injury. This definition, the Appellate Division concluded, was the key to resolving Griffo’s appeal from the board’s determination.

According to the ruling, Griffo’s chiropractor authorized his return to work after both accidents. Some time later, the chiropractor imposed lifting and bending restrictions on Griffo because his back condition became exacerbated. According to Griffo, these limitations precluded him from applying for “higher paying and more physically demanding positions.”

However, the Appellate Division said that “the loss of opportunities for advancement is not relevant to whether [Griffo] suffered a loss of earning capacity within the meaning of Section 3.8.

The court noted that the statute simply does not make any provision for any award of benefits based on expected future income due to advancements or promotions. Since the record supported the board’s finding that Griffo “was capable of performing his usual work duties following both accidents,” his claim for benefits was properly rejected by the board.
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Lunchtime injuries

Lunchtime injuries
Smith v City of Rochester, 255 AD2d 863

Donna Smith, a City of Rochester parking monitor, slipped on a wet floor and fell while leaving a restaurant during an unpaid lunch break. The Workers’ Compensation Board denied Smith’s workers’ compensation claim, finding that she had not sustained an accidental injury in the course of her employment.

The Appellate Division affirmed the board’s determination, holding that “lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employee during the lunch break.” The court said that the record showed that Smith had discretion as to the time and location of her lunch breaks and the city neither suggested that she eat at that particular restaurant nor derived any benefit from her patronizing that establishment.
NYPPL

Civil Service Law controls in the event positions in the classified service are transferred between a school district and a BOCES

Civil Service Law controls in the event positions in the classified service are transferred between a school district and a BOCES
Matter of Hellner v Board of Educ. of Wilson Cent. School Dist., 2010 NY Slip Op 08472, Decided on November 19, 2010, Appellate Division, Fourth Department

Janet Hellner was employed by the Wilson Central District as an occupational therapist when, as a result of budget considerations, the District abolished her position* and entered into an agreement with BOCES to provide occupational therapy services.

Contending that this action constituted a "transfer of a function," the union said that Civil Service Law §70(2) required that the District certify Hellner’s name to BOCES as the employee to be transferred and that BOCES offer her the position of occupational therapist.

The District and BOCES, on the other hand, contend that Education Law §3014-a and 1950 controlled with respect to Hellner's transfer rights inasmuch as BOCES was to take over the occupational therapy program from the District.

Ultimately the Appellate Division ruled that:

1. The Agreement between the District and BOCES providing for occupational therapy services constituted the "transfer of a function" within the meaning of Civil Service Law §70(2).

2. The theory advanced by both the District and BOCES that Education Law §§3014-a and 1950 “exclusively govern the issue of employee transfer rights” was incorrect in this instance as neither §3014-a nor §1950 provided any transfer rights with respect incumbents of non-teaching positions in the classified service, citing Matter of Vestal Employees Association v Public Employment Relations Board, 94 NY2d 409.

In Vestal the Court of Appeals ruled that a school district employee providing printing services and thus had a non-educational position [in the classified service] was "afforded certain protections upon the transfer of his functions pursuant to Civil Service Law §70(2)."

The Appellate Division ruled that the transfer of occupational therapy services from the District to BOCES “constitutes the transfer of a function within the meaning of Civil Service Law §70(2) and thus Hellner, as the employee whose function was transferred, is afforded certain affirmative rights upon the transfer” of the position.

As to the District’s argument that this action “would violate various administrative provisions applicable to BOCES and the District,” the Appellate Division said that to the extent that such administrative provisions are inconsistent with §70(2), the statute control.

The Appellate Division said that "[A]dministrative regulations are invalid if they conflict with a statute's provisions or are inconsistent with its design and purpose," citing Matter of City of New York v Stone, 11 AD3d 236.

However, court said that the record was insufficient to enable it to determine whether BOCES had sufficient occupational therapy staff at the time of the Agreement and remitted the matter to Supreme Court for further proceedings on the union's petition to determine that issue.

* In the event an appropriate preferred list is certified to an appointing authority to fill a vacancy, the appointing authority must either [1] use the preferred list to fill the vacancy or [2] may elect to keep the position vacant.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08472.htm

For information about PELP's e-book Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/

NYPPL

Employer must prove that the employee knew, but failed to follow, procedures

Employer must prove that the employee knew, but failed to follow, procedures
NYC Department of Environmental Protection v Segarra, OATH Index No. 2730/10

The New York City Department of Environmental Protection charged Anthony Segarra, a senior sewage treatment worker at a water pollution control plant, with two instances of neglect of duty involving the taking of water samples.

OATH Administrative Law Judge Alessandra F. Zorgniotti found that the Department failed to prove that Segarra knew about the procedures at issue.

Accordingly, Judge Zorgniotti recommended that the charges that the Department had filed against Segarra be dismissed.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2730.pdf
NYPPL

Class actions challenging administrative decisions

Class actions challenging administrative decisions
Holcomb v Westchester County, 255 AD2d 383

“Class action” relief is rare in the public sector because courts have traditionally viewed expanding the “plaintiff class” to all members of a certain group unnecessary due to the legal principle called stare decisis (to abide by past decisions).

Stare decisis is the judicial doctrine that once a court has laid down a principle of law applicable to a certain set of facts, that principle will be applied in future cases involving the same facts. For example, if a public employee wins the right to overtime as a result of a court’s interpretation the Civil Service Law, all similar situated public employees would have an identical right to overtime under stare decisis.*

However, there can be exceptions to this general rule about the inappropriateness of class actions by public employees. The Appellate Division’s consolidated decision in Holcomb and Hetherington cases illustrate such an exception.

Michael Holcomb and Helen E. Hetherington sued Westchester County, contending that their positions were improperly abolished by the county. They argued that because the County Board of Legislators had not amended the county’s budget to reflect the abolishment of their positions, their positions could not be abolished by “administrative action” taken by the County Executive.**

Holcomb and Hetherington also asked for “class certification” in order to include some 300 other Westchester County employees whom they claimed had also been unlawfully terminated when their positions were abolished by “administrative action.” A state Supreme Court justice granted their motion for class certification, and the county appealed.

The county argued that class certification was unnecessary under stare decisis; the final determination in a court proceeding involving a governmental operation would be controlling in future litigation involving the same issue.

The Appellate Division disagreed with county and upheld the Supreme Court’s determination. The Appellate panel said the Supreme Court did not abuse its discretion because consolidating claims into a class action was a less cumbersome way for the courts to handle these claims as the 300 potential litigants were only seeking “relative small sums of damages” and were clearly part of a “large, readily definable class.”

Further, court observed that the central issue -- whether the county legislature’s failure to amend the budget meant that positions were improperly abolished -- was appropriate for class-based consideration.

* Typically the doctrine of stare decisis is not applied in arbitrations. For example, City School District of Tonawanda v Tonawanda Education Association, 63 NY2d 846, involved a situation in which the same facts considered by two different arbitrators but involving two different employees produced different results. The school district had made layoff decisions that adversely impacted on two employees. Both individuals grieved. The grievances were considered by two different arbitrators. The first arbitration decision handed down ruled in favor of the employer while in the second case, heard by a different arbitrator and handed down after the first arbitrator had made a ruling, the employee prevailed. The school district claimed that the first arbitrator's decision should be adopted by the second arbitrator since the same facts were involved and thus the second arbitrator was bound by the first arbitrator's findings. The Court of Appeals rejected Tonawanda's theory, holding that both arbitration decisions were to stand.

N.B. Would Tonawanda have been disposed to argue that the second arbitrator was bound by the first arbitrator's award had it gone the other way? It is prudent to consider the future impact of an instant position under alternate circumstances in such situations.

** Holcomb and Hetherington appear to be arguing that the Doctrine of Legislative Equivalency, i.e., “a position created by a legislative act can only be abolished by a correlative legislative act,” controls in this action [see Matter of Torre v County of Nassau, 86 NY2d 421].
NYPPL

Discontinuing workers’ compensation benefits

Discontinuing workers’ compensation benefits
Waters v City of New York, 256 AD2d 680

Sometimes an individual who is receiving workers’ compensation benefits will seek damages from a third party alleged to have caused his or her injury while on the job.

However, an “unauthorized settlement” could jeopardize an employer’s right to recoup benefit payments for which it is, or may become, liable. Therefore, the employer or its insurer must consent to any third party settlement. The failure of the employee to obtain this consent generally results in his or her workers’ compensation benefits being discontinued. However, there may be exceptions to this general rule, as the Waters case demonstrates.

Mary Waters was injured in an automobile accident in the course of her employment. She applied for, and was granted, workers’ compensation benefits based on a finding that she had suffered “a 10% schedule loss of the use of her left leg.”

Waters subsequently “commenced a third party action” against the owner/driver of the automobile and obtained a $5,000 settlement. However, because Waters had not obtained the city’s consent [New York City self-insures itself for workers’ compensation] the Workers’ Compensation Board affirmed the discontinuation of her “scheduled loss award.”

The Appellate Division was troubled by this result, however, commenting that in deciding a nearly identical case, the board had applied an exception to this rule.

In UHS Home Attendants, WCB 08916873, the board held that a claimant who was granted a scheduled award of 30% permanent loss of the use of her left leg “was not precluded from continuing to receive benefits even though she failed to obtain the consent of [UHS Home Attendants’] compensation insurance carrier to her settlement of her third-party action in which she had received $6,010.”

The court ruled that “given the factual similarities in the current case” to those present in the UHS Home case, it was incumbent on the board to either (1) follow the precedent established by its decision in UHS Home Attendants or “provide an explanation for its failure to do so.” Accordingly, the Appellate Division remanded [returned] the case to the board for its further consideration.
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