Work related disability

Work related disability

Cocco v NYC Dept. of Trans., 266 AD2d 634

From time to time, an employee will file a workers’ compensation claim alleging that his or her work aggravated a pre-existing condition. In the Cocco case, the Appellate Division, Third Department, sets out the distinction courts make in considering such cases.

The Workers’ Compensation Board had approved Cocco’s claim for benefits based on his contention that his work for the New York City Department of Transportation as a bridge painter aggravated his preexisting chronic obstructive pulmonary condition. The Board ruled that Cocco had suffered an occupational disease within the meaning of Workers’ Compensation Law Section 3(2)(30). The Department appealed.

The Appellate Division said that in this type of case, it all depends on whether the employee’s disability resulted from (a) a previously active disabling condition; or (b) the aggravation of a condition, which was previously dormant and not disabling.

The Appellate Division said that “[t]o be compensable, the preexisting condition must be dormant and nondisabling and some distinctive feature of the employment must cause disability by activating the condition.”

Cocco and his expert both testified that Cocco’s pulmonary condition was dormant and nondisabling, and that “his exposure to noxious substances as a bridge painter for the employer acted on the preexisting condition in such a manner as to cause disability which did not previously exist.”

This, said the court, constituted substantial evidence for the Board’s determination and sustained the award.

Some guidelines followed by the courts when reviewing disciplinary arbitration awards

Some guidelines followed by the courts when reviewing disciplinary arbitration awards
Matter of Watt v East Greenbush Cent. School Dist., 2011 NY Slip Op 04795,
510841

In considering an appeal of an adverse disciplinary arbitration pursuant to Article 75 of the Civil Practice Law and Rules, the Appellate Division observed that:

1. Courts must review Education Law §3020-a disciplinary determinations by a Hearing Officer in accordance with the provision set out in §7511 of the Civil Practice Law and Rules, which section permits vacatur of an award on grounds of misconduct, abuse of power or procedural defects.*
2. Where the parties are required to submit the matter to arbitration, in contrast to submitting the matter to “voluntary arbitration,” courts must ensure that the award comports with due process and is supported by adequate evidence 
3. A court, when conducting its review of an arbitration award, must accept the Hearing Officer's credibility determinations.
4. The free speech rights of school employees are not violated when a school district
   imposes discipline on teachers for directing ethnic slurs or disparaging comments towards students in class.
5. Ethnic comments deemed offensive or embarrassing by students is a proper basis for initiating disciplinary action against a teacher.

* Courts have also vacated arbitration awards found to violate “strong public policy.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04795.htm

Duty of fair representation

Duty of fair representation

Hickey v Hempstead Union Free School Dist., 36 AD3d 760

Robert L. Hickey’s lawsuit against the Hempstead Union Free School District involved provisions in the collective bargaining agreement negotiated between his union, the Hempstead School Administrator’s Association, and his employer, the Hempstead Union Free School District.

Supreme Court dismissed Hickey’s petition after finding that he “lacked standing” to maintain such an action. The Appellate Division agreed.

The Appellate Division pointed out that a union member generally has no individual rights under a collective bargaining agreement that he or she can enforce against an employer unless:

1. The negotiated agreement, by its terms, permits an individual to proceed directly against the employer to enforce a term or condition set out in the agreement, or

2. The union fails in its duty of fair representation.

As the collective bargaining agreement did not provide for negotiating unit members taking direct action against the school district, Hickey could only maintain his action if he could show that the Hempstead School Administrator’s Association violated its duty of fair representation with respect to his claim.

Here, said the court, Hickey’s petition did not contain any allegation that the Association had breached its duty of fair representation. Indeed, said the Appellate Division, in response to Hickey’s filing an improper practice charge against the Association with the Public Employment Relations Board (PERB), PERB dismissed his complaint, finding that the union had not breached its duty of fair representation. Hickey never appealed PERB’s determination.

The Appellate Division concluded that the Supreme Court properly granted the school district’s motion to dismiss the complaint on the ground that the Hickey lacked standing to maintain the action.

The decision if posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2007/2007_00493.htm

Teacher disqualified for unemployment insurance benefits after refusing substitute position

Teacher disqualified for unemployment insurance benefits after refusing substitute position

Kurtz v Henrietta Central School District v Commissioner of Labor, 37 AD3d 895

An art teacher was employed by the Rush Henrietta Central School District during the 2003-2004 school year. Her position was abolished effective July 1, 2004. The District, however, offered her a position as a long-term substitute art teacher for the first semester of the 2004-2005 school year to replace a teacher who was on maternity leave. The District made the offer in May 2004 and again in July 2004, but Kurtz did not accept it.

Kurtz had received over $4,000 in unemployment benefits when the district filed an objection with the Unemployment Insurance Board. After a hearing, Kurtz’s claim was disallowed “because she refused an offer of suitable employment without good cause.”

When Kurtz appealed, the Appellate Division sustained the Board’s determination, holding that “A claimant who rejects employment for which he or she is reasonably suited by training and experience will be disqualified from receiving unemployment insurance benefits.”

As Kurtz had the qualifications necessary to perform the duties of a long-term substitute art teacher, the court said that fact that it was a temporary position was not a legitimate reason for her to refuse to accept it.

Noting that the District’s human resources director testified that Kurtz would have received wages and benefits similar to those she received as a probationary art teacher, the Appellate Division said that:

Claimant's misunderstanding of the terms of the offer and her failure to make further inquiry concerning the same do not excuse her inaction. Furthermore, claimant's admitted failure to disclose the job offer when certifying for benefits supports the Board's finding that she made a willful misrepresentation and its decision to charge her with a recoverable overpayment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2007/2007_00717.htm