Smoke breaks ruled off-duty activity

Smoke breaks ruled off-duty activity
Eckerson v State and Local Retirement Systems, 270 AD2d 705, motion for leave to appeal denied, 95 NY2d 756

Significant accidental disability retirement benefits are available to members of the New York State and Local Retirement Systems [ERS] who are disabled as the result of an accident incurred in performing official duties.

In the Eckerson case, the Appellate Division considered the issue of what constitutes performing official duties for the purpose of establishing eligibility for accidental disability retirement benefits.

Dennis Eckerson, an employee of the Central New York Psychiatric Center, slipped and fell returning from a designated smoking area to the building where he worked.

ERS ruled that Eckerson was not in service when he was injured returning from his smoking break and disapproved his application for accidental disability retirement benefits. Eckerson filed an Article 78 petition challenged ERS’ determination.

Admitting that he smoked a cigarette prior to his fall, Eckerson also testified that he went to the smoking area to conduct work-related business. This conflicting evidence, said the Appellate Division, created a credibility issue for ERS to resolve. The court sustained ERS’ conclusion that Eckerson’s representation that he went to the smoking area to conduct official business was not creditable.

The court also noted that in considering accidental disability retirement applications filed by other ERS members based on a “slip and fall” on their employer’s premises, ERS had concluded that the member was not in service for the purpose of eligibility for such benefits in situations where:

1. The employee had not yet reported for work [Farley v McCall, 239 AD2d 779];

2. The employee was injured during a lunch break [Nappi v Regan, 186 AD2d 855]; and

3. The employee was injured after the work shift had ended [DiGuida v McCall, 244 AD2d 756].

The Appellate Division said that it found nothing irrational in ERS’ applying a similar rationale in the case of an injury sustained by an employee during his or her smoke break where the member cannot demonstrate that he or she was conducting official business at the time.

On the issue of credibility, frequently the review of an application for accidental disability retirement benefits involves conflicting evidence.

In Giebner v McCall, 270 A.D.2d 705 , also decided by the Appellate Division, the court held that where the record contains contradictory medical evidence concerning whether the applicant was permanently disabled, it was within ERS’s discretion to evaluate the differing medical opinions and resolve the conflict against the applicant.

The Appellate Division applied the same standard in resolving the question of determining credibility in Eckerson’s case.
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Failure to give preclusive effect to a criminal conviction in an administrative disciplinary action involving the same incident reversible error

Failure to give preclusive effect to a criminal conviction in an administrative disciplinary action involving the same incident reversible error
Matter of Social Servs. Employees Union, Local 371 v City of New York, Dept. of Juvenile Justice, 2011 NY Slip Op 02455, Appellate Division, First Department

Judge Alice Schlesinger confirmed an arbitration award reinstating Bowana Robinson to his position as an institutional aide at the City of New York's Department of Juvenile Justice. The award also provided Robinson with back pay and seniority.

The Appellate Division vacated the lower court’s ruling and remanded the matter to the arbitrator “for a determination of an appropriate penalty.” The court said that the arbitrator had failed to “give preclusive effect” to the fact that Robinson had plead guilty plea of petit larceny, which “was irrational” and the arbitrator’s award “places Robinson back into a position where he has the responsibility to voucher property of individuals being brought into a juvenile facility.”

The ruling in Kelly v. Levin, 440 NYS2d 424 involved a similar situation - an administrative tribunal's failure to give preclusive effect to a relevant criminal conviction by a court. Kelly involved a school business administrator charged with larcenies of school funds and bringing discredit upon the school district.

The Education Law §3020-a disciplinary panel found the Kelly guilty of the charge of bringing discredit upon the district, but not guilty of the larceny charges. Kelly, however, had been convicted of two counts of grand larceny for theft of school property prior to being served with the §3020-a disciplinary charges (see People v Kelly, 72 AD2d 670).

The court ruled that it was reversible error for an administrative disciplinary body to acquit an employee if the individual has been found guilty of a criminal act involving the same allegations.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02455.htm .

Refusing a light duty assignment may affect eligibility for other benefits

Refusing a light duty assignment may affect eligibility for other benefits

Peluso v Fairview Fire District, 269 AD2d 623

One factor to consider in cases involving claims resulting from job related injuries or disease: the impact of refusing to accept a light duty assignment with respect to other benefits that might be available to a disabled worker.

Clearly both General Municipal Law Section 207-a, applicable to firefighters and General Municipal Law Section 207-c, applicable to law enforcement personnel, provide for the discontinuation of benefits if a disabled police officer or firefighter declines to perform a light duty assignment consistent with his or her position unless the individual can produce evidence that he or she is medically unqualified to perform the light duty assignment.

In the Peluso case, the Appellate Division agreed with the Workers’ Compensation Board that Peluso’s rejection of a light duty assignment was evidence that he had voluntarily withdrew from the labor market. This, said the court, justified the Board denying his claim for workers’ compensation benefits.

Peluso retired from his position of fire captain, claiming he could no longer work as the result of a disabling back condition caused by several job related injuries.

The Appellate Division, in affirming the Board’s action, said that the fire chief’s testimony that several different types of light-duty assignments were available to all firefighters, including Peluso, depending on the nature of the disability constituted substantial evidence sufficient to sustain the Board’s determination.

The fire chief had testified that Peluso did not request a light-duty assignment, did not accept a light duty assignment when one was offered to him and that he continued to perform his regular duties as a captain, including responding to two calls on his last day of work.

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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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