Workers’ compensation and Section 207-a/207-c disability claims

Workers’ compensation and Section 207-a/207-c disability claims

Balcerak v Nassau County, Ct. of Appeals, 93 NY2d 808

If a police officer is awarded workers’ compensation benefits before his or her employer decides whether or not he or she is eligible for disability benefits under Section 207-c of the General Municipal Law, may the appointing authority still deny the individual’s application for Section 207-c benefits? Yes, said the Court of Appeals, in a unanimous opinion, reversing a decision by the Appellate Division to the contrary.

Until this ruling, various appellate division and Supreme Court decisions held that the employer was prevented from rejecting the police officer’s Section 207-c claim under such circumstances under the doctrine of collateral estoppel. In fact, one Supreme Court justice recently ruled that the mere filing of a workers’ compensation claim by the employer, which it was mandated to do by law, prevented it from denying the individual’s Section 207-c application.

In Balcerak, the Court of Appeals concluded that Gregory Balcerak, a Nassau County corrections officer was not automatically entitled to Section 207-c benefits simply because the Workers’ Compensation Board had determined that he had suffered a work-related injury and that the doctrine of collateral estoppel did not apply in such cases.*

Balcerak had been injured in an automobile accident in June 1996, just after leaving from his assignment to special duty on the “midnight shift.” Nassau rejected his application for Section 207-c benefits for his “injury sustained while on duty form” on September 9, 1997. The Workers’ Compen­sation Board, however, had approved Balcerak’s application for workers’ compensation benefit before the county had made its determination.

Balcerak sued, demanding that Nassau provide him with “Section 207-c benefits, retroactive to the date of the accident.

A Supreme Court justice concluded that the Nassau was bound by the Workers’ Compensation Board’s finding that Balcerak was injured while on duty. The Appellate Division affirmed, agreeing that the collateral estoppel doctrine applied against the County.

The Court of Appeals reversed, holding that the Workers’ Compensation Law and the General Municipal Law are discrete, independent compensation systems and that a favorable Workers’ Compensation determination does not, therefore, automatically entitle an employee to the special benefits provided by Section 207-c.**

According to the ruling, the Workers’ Compensation Board’s determination does not automatically preclude a municipality’s discrete decision on a General Municipal Law Section 207-c application. The distinction between the two laws made by the Court of Appeals:

1. Section 207-c benefits were meant to fulfill a narrow and important purpose ... to compensate specified municipal employees for injuries incurred in the performance of special work related to the nature of heightened risks and duties.***

2. Workers’ Compensation is a general and comprehensive social program designed to provide all injured employees with some scheduled compensation and medical expenses, regardless of fault for ordinary and unqualified employment duties.

In view of this ruling, it appears that in evaluating a claim for Section 207-c benefits, the appointing authority should:

1. Determine if an individual is unable to perform the duties of his or her position because of a disability.

2. If it is determined that the individual is disabled, was the individual disabled as the result of a work-related injury or disease? If the answer is no, the individual is probably eligible for disability leave pursuant to Section 72 of the Civil Service Law.

3. If it is determined that the individual was disabled on the job, was the injury or disease at work incurred in the performance of “official duties” as a police officer? If the answer is no, the individual is probably still eligible for leave pursuant to Section 71 of the Civil Service Law, Workers’ Compensation Leave.

4. If it is determined that the individual was disabled as a result of his or her performing “official duties,” he or she is presumably eligible for Section 207-c benefits as provided by law.

Some collective bargaining agreements negotiated pursuant to the Taylor Law set out procedures for the processing of Section 207-c applications.

* Although this case concerned Section 207-c, which covers police officers, while Section 207-a of the General Municipal Law applies to firefighters injured in the line of duty, the rationale adopted by the Court of Appeals in making its determination would probably be followed in a similar Section 207-a case.

** This decision did not end the matter regarding Balcerak’s eligibility for 207-c benefits. The Court of Appeals said that its ruling “resolves only the collateral estoppel issue....” The other issue in this action -- did Nassau have “a rational basis for its decision denying Balcerak Section 207-c benefits,”, had not yet addressed by the Appellate Division. Accordingly, the case was returned to the Appellate Division for its consideration of this issue.

*** N.B. Subsequently the Court of Appeals revisited and clarified its view regarding the availability of Section 207-c benefits based on a perception of “heightened risks and duties,” holding that “[I]n order to be eligible for Section 207-c benefits, a covered municipal employee need only prove a ‘direct causal relationship between job duties and the resulting illness or injury’.” (see Matter of Theroux v Reilly, 1 NY3d 232 

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Activities by teachers in the course of collective bargaining are not protected activities within the meaning of the Taylor Law when such activities place students at risk

Activities by teachers in the course of collective bargaining are not protected activities within the meaning of the Taylor Law when such activities place students at risk

Lucia v Board of Educ. of the E. Meadow Union Free School Dist., 2011 NY Slip Op 51210(U), Supreme Court, Nassau County, Judge Vito M. DeStefano, Not selected for publication in the Official Reports.

Although teachers of the Woodland Middle School of the East Meadow Union Free School District were provided with their own parking spaces on school property, one day several teachers parked their cars along the curb in front of the school, an area designated as the schools student "drop off" area, in an effort "intended to achieve a new collective bargaining agreement." 

East Meadow, alleging that because of rain, heavy traffic, and the presence of parked cars at both the curbs in front of the school, parents were forced to drop off their children in the middle of the street, filed disciplinary charges against Barbara Lucia and three other teachers who allegedly parked their cars along the curbside on that day.

Following the resulting disciplinary hearing, the Hearing Officer ruled that the District had sustained its burden of proof on the charges filed against the teachers.Noting that protected union activity may lose its status by the manner in which it was conducted, the Hearing Officer ruled, in relevant part that:

“Based upon the finding that [her] actions created a safety hazard for the children, I do not find that [her] actions . . . were protected activity. . . . It is foreseeable that where so many cars are parked at that location it would delay the drop off of students … Albeit a lapse in judgment, [Lucia's] actions took place outside the school, and there is no evidence that they had any impact on her role as a teacher with considerable experience. A fine of one thousand ($1,000) dollars should serve to remind her that her actions that morning were inappropriate.

Lucia filed a petition pursuant to CPLR 7511 seeking an order vacating the decision of the Hearing Officer on the grounds that it was "irrational, arbitrary and capricious, and not based upon adequate or substantial evidence, in violation of public policy and not in accord with due process."

Noting that Education Law §3020-a(5) provides that an employee seeking to modify or vacate a hearing officer's determination is limited to the grounds set forth in CPLR 7511 or if it is clearly violative of a strong public policy, Judge DeStefano ruled that the Hearing Officer's determination did not violate a strong public policy and, further, was not totally or completely irrational, and did not exceed a specific enumerated limitation of the Hearing Officer's power. 

As to the “public policy exception, Judge DeStefano explained that although Lucia, and similarly situated teachers, have a constitutionally protected right to engage in union activity, the scope of the public policy exception is "extremely narrow … and the exercise of teachers' free assembly and speech rights are circumscribed to the extent that such exercise endangers the safety of children.”

As to Lucia’s argument that the Hearing Officer’s decision was totally irrational or that it otherwise exceeded his authority, Judge DeStefano said that “when reviewing compulsory arbitration in education proceedings, the court should accept the arbitrator's credibility determinations, even where "room for choice exits.” Here, said the court, there was testimony from which the Hearing Officer could reasonably conclude that “Lucia parked her car on the street as part of a demonstration calculated to disrupt the student "drop-off" area and which created a safety hazard to the children.” 

Judge DeStefano dismissed Lucia’s petition seeking an order vacating the determination of Hearing Officer.

The decision is posted on the Internet at:

 http://www.courts.state.ny.us/reporter/3dseries/2011/2011_51210.htm

No FMLA protections based on incomplete medical certification

No FMLA protections based on incomplete medical certification

Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/

Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Janet Lewis was employed as a civilian in the Air Force as Director of the Elmendorf Air Force Base Child Development Center.  She requested 120 days of FMLA leave due to her own serious health condition. The Agency required Lewis to support her request for leave with the WH-380 medical certification form.  Lewis had her doctor fill out the form, which she submitted in support of her leave request. At the same time, she submitted a prescription from her doctor, and a 2006 letter from another doctor.  Kathleen DeShasier, Lewis's supervisor, told her the documents she submitted were insufficient to support her request for FMLA leave.  Lewis refused to submit more information, believing that she had provided all the information necessary under the FMLA.  When she failed to show up for work, the Agency fired her AWOL.  She appealed her removal through the administrative and federal district court, without success. 

Before the Ninth Circuit, Lewis argued that the documents she submitted provided sufficient medical facts to support the conclusion that she suffered from an FMLA-covered serious health condition. The Ninth Circuit disagreed.  Lewis's WH-380, the court observed, "states only that she was diagnosed with Post-Traumatic Stress Disorder and needed therapy, medical treatment, bed rest, two prescriptions medications, and 120 days off work." 

Significantly, the Court found that the WH-380 form was incomplete because it failed to-

1. provide a summary of the medical facts that support the diagnosis;

2. contain an explanation as to why Lewis was unable to perform her work duties; and

3. address what additional treatments would be required for her condition.

The   rejected Lewis's alternative argument that she submitted adequate medical documentation to the HR department in support of her workers’ compensation claim. 

Along with her OWCP claim, Lewis did, the Court found, submit medical documents and a detailed diagnosis.  

However, Lewis did not deliver the OWCP documents to her supervisor. Instead, she specifically requested that the HR department keep her medical records confidential and out of her supervisor's hands.  In so doing, the Court essentially found that Lewis could not rely on her OWCP documents as a way to supplement her incomplete WH-380.

Mr. Bosland Comments:  To substantiate an employee's request for serious health condition FMLA leave, an employer may require the employee to submit a complete medical certification.  The permissible content of that certification is governed by federal regulations.  To determine whether the leave is covered by the FMLA, an employer may not require an employee to provide more medical information than is permitted by law.  While an employer may voluntarily agree to accept a medical certification with less medical information than permitted  (employers are not mandated to require any medical certification), they are perfectly within their rights to insist that they receive a complete medical certification. 

Some employee's are very reluctant to disclose their medical condition to their supervisor or employer when requesting leave.  They fear that their highly confidential medical information will "get out" and become fodder for the office rumor mill.  These employees tend to offer sparse medical certifications.  These certifications may even have something written in every area of the WH-380 form, but the information provided is either incomplete or useless.  When offered the chance to submit additional information, these employees, like Lewis, often refuse.   

Employees who refuse to provide additional information run the considerable risk of losing FMLA protections.  As with Lewis, employees who forge ahead and take the leave anyway in the belief that they did provide a complete medical certification, and that the employer is wrong, run the considerable risk of being disciplined for AWOL.  Before risking your job, employees better be certain that they are right and their employer is wrong on this issue.  Check with your union, the US Department of Labor, or an attorney. 

Note that the Court rejected Lewis's argument that she satisfied her FMLA medical certification by providing additional medical information to the HR department as part of the OWCP claim. While the Court did not spell it out, the implication is that she was required to submit her FMLA request to her supervisor, not the HR department.  Moreover, she specifically asked that her OWCP medical documents be kept confidential including from her supervisor. 

Providing medical information, but not to the right person or office, is another (failed) tactic frequently used by employees who don't want to disclose information to their supervisor even though that is what may be required by the employer's policy.  For example, as in Lewis, employees will send their medical documentation to a medical or OWCP unit with confidentiality restrictions, and then claim that they satisfied the FMLA because they provided the certification to their employer writ large.   

Where the employer has a policy or practice requiring the employee to request leave and provide supporting medical certification through the immediate supervisor or a specified office, providing the medical documentation to some other unit of the employer will not secure the protections of the FMLA.  Courts have not allowed employees to game the system by providing supporting medical documentation to someone within the company, but outside of the policy or practice.   

Lewis v. USA, No. 10-35624 (9th Cir. May 26, 2011), http://www.ca9.uscourts.gov/datastore/opinions/2011/05/26/10-35624.pdf

Considering hearsay evidence offered in the course of an administrative hearing

Considering hearsay evidence offered in the course of an administrative hearing

Derbyshire v Safir, 288 AD2d 18, [Motion for leave to appeal denied, 97 NY2d 611]

In this appeal, the Appellate Division held that Joseph Derbyshire received a fair hearing and that substantial evidence supported the administrative determination to dismiss him from his position.

Derbyshire had argued that certain hearsay evidence against him should not have been considered in making the administrative determination. The Appellate Division disagreed, ruling that “[h]ighly probative hearsay evidence was properly admitted” and thus could be considered in making the determination.

The court also commented that Derbyshire's admissions to his wife were not protected by the marital privilege (Section 4502[b], Civil Practice Law and Rules) because of the nature of the misconduct involved and it found no basis upon which to apply a more restrictive rule in administrative proceedings than would apply in a criminal proceeding.

Under the circumstances, the court said, “imposing the penalty of dismissal does not shock the conscience of this Court,” citing Brown v Safir, 258 AD2d 359, [leave to appeal denied, 93 NY2d 807].

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.

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Doctrine of Estoppel applied in ADA litigation

Doctrine of Estoppel applied in ADA litigation

DeVito v Chicago Park District, CA7, 270. F.3d 532

Nicholas DeVito charged that his employer, the Chicago Park District, violated the ADA by failing to accommodate his disability. His claim was dismissed after a bench trial. The district court judge found that the DeVito was physically incapable of working full time, even with an accommodation, and therefore was not within the Act's protections. The Circuit Court agreed and dismissed DeVito's appeal.

DeVito worked as a laborer for the park district until he injured his back in 1979. Although his injury prevented his returning to his laborer's job, he was assigned to a “light duty” job -- answering the telephone at a park district office near his home.*

Four years later, the park district fired DeVito after it videotaped him twisting, bending, and climbing in and out of trucks.

Starting with the observation that the employment provisions of the Americans with Disabilities Act provide relief only to persons who are capable, with or without an accommodation that would make it possible for them to work despite a disability, to perform the essential functions of their job, which in the case of a full-time job requires that they be capable of working full time.**

In addition, said the court, there is a more fundamental objection to DeVito's claim. The doctrine of estoppel prevents a litigant from repudiating a representation that has reasonably, foreseeable induced reliance by the person to whom he made it. “Even if the representation was false (indeed that is the usual case in which the doctrine is applied), the maker of it is estopped (forbidden) to deny it and by denying it pull the rug out from under the unsuspecting person to whom he had made it.”

The doctrine has been applied in ADA cases much like this one -- cases in which an employee attempts to whipsaw his employer by first obtaining benefits or concessions upon a representation of total disability to work full time and then seeking damages for the employer's failure to accommodate the disability, which the employee now seeks to prove was not total after all.

In the words of the court, “an ADA plaintiff may be estopped by an inconsistent representation made to his employer to obtain benefits.” However, the Circuit Court observed that “since different statutes define total disability differently, the employee will sometimes be able to explain away the apparent inconsistency of his positions.

Here the court rejected DeVito's efforts to “explain away” any inconsistencies in his position. It said that the park district was entitled to rely on DeVito's implicit representation -- implicit in his behavior in his light-duty job answering the phone -- that “he could work no more than two or three hours a day and on his explicit representation that his condition had not improved since the original injury.”

* DeVito was allowed to leave work whenever he felt pain or stress and admitted that he would typically leave work after only two or three hours, though he was being paid the full wages of a laborer who works eight hours a day.

** The fact that DeVito had not worked full time for 13 years at the time of the appeal hearing -- the ostensible reason being his disability, and his statement at that hearing that he currently felt no better than he had felt when he was first injured -- was enough evidence to enable the district judge to find that DeVito was incapable of working full time.

PERB has exclusive jurisdiction to determine improper practice charge

PERB has exclusive jurisdiction to determine improper practice charge

Westchester County Dept. of Pub. Safety Police Benevolent Assn., Inc. v Westchester County, 35 AD3d 592, 828 N.Y.S.2d 412

Westchester County created three director positions in the Westchester County Department of Public Safety. It appointed three civilians to those positions rather than appoint “sworn officers” to the vacancies.

The Westchester County PBA sued, contending that because the positions involve the performance of traditional police functions, its members were deprived of positions that should have been reserved exclusively for them. In the words of the Appellate Division, “More precisely, [PBA] argues that it has an obligation to "preserve the work that its members perform." The PBA complained that the County is seeking to “circumvent" the collective bargaining agreement by creating what are, in essence, police positions, and staffing them with civilians.”

The Court said PBA’s underlying complaint is that the County committed an improper employer practice by its failure to bargain with it prior to the creation and relegation of work properly assigned within the bargaining unit to persons outside of it. Accepting PBA’s characterization of the nature of its case, the Appellate Division concluded that PBA’s action must be dismissed because resolving the improper labor practice charge it advanced is within the exclusive jurisdiction of the Public Employment Relations Board.

The decision noted that PBA, in an effort to maintain its law suit, argued that it had cited Civil Service Law § 209-a(1)(d) merely for the purpose of demonstrating standing but that the merits of this action were not within PERB's jurisdiction. The Appellate Division rejected the PBA’s “attempt to evade the consequences of its standing argument;” stating, “clearly, the [PBA] cannot have it both ways.”

Unless the CBA so provides, the statute of limitations for filing a lawsuit is not tolled because a contract grievance procedure must be exhausted before initiating litigation

Unless the CBA so provides, the statute of limitations for filing a lawsuit is not tolled because a contract grievance procedure must be exhausted before initiating litigation

Civil Serv. Employees Assn., Inc. v County of Nassau, 2011 NY Slip Op 05649, Appellate Division, Second Department

The Civil Service Employees Association and a number of the employees in the collective bargaining unit it represents[CSEA] initiated a lawsuit alleging that Nassau County breached a provision in the collective bargaining agreement (CBA) executed by the County and CSEA.

CSEA contended that Nassau alleged that Nassau had improperly placed employees promoted in calendar years 1999 and 2000 in the incorrect step or grade on the relevant graded salary schedule. Although both Nassau and CSEA moved for summary judgment,  Supreme Court denied the County's motion but granted CSEA’s cross motion for summary judgment on the issue of liability, and directed an inquest on the issue of damages.

Nassau appealed.

The Appellate Division, noting that an arbitrator previously denied CSEA’s request for a finding that the County had breached the CBA with respect to its handling of pre-2001 promotions, said that advisory determination never became binding on CSEA and thus its complaint was not barred by the doctrine of res judicata.

However, said the court, Nassau was correct when it contended that the six-year statute of limitations for an action upon a contractual obligation applies to CSEA’s action. Further, the statute of limitations was not tolled to allow CSEA to go through the internal grievance process, as they were required to do pursuant to the CBA's terms.

The Appellate Division ruled that “In the absence of a provision in the CBA providing for the tolling of the statute of limitations while [CSEA] exhausted the grievance process, the mere fact that the CBA required [CSEA] to exhaust the grievance process before filing suit in state court did not toll the statute of limitations,” citing Nassau Ch. Civ. Serv. Empls. Assn., Local 830, AFSCME, Local 1000, AFL-CIO v County of Nassau, 154 Misc 2d 545,  affd 203 AD2d 267.

Accordingly, because the complaint was filed on April 11, 2006, CSEA may only attempt to recover breach of contract damages for acts occurring on or after April 11, 2000. 

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05649.htm

Free Speech in the classroom

Free Speech in the classroom

Opinions by US Circuit Courts of Appeal

A number of U.S. Circuit Courts of Appeal have considered challenges from teachers contending that their respective employers had curtailed their constitutional right to free speech.

1. Mayer v. Monroe County Community School Corporation, 474 F.3d 477

In this 42 USC 1983 lawsuit, a teacher alleged that she was dismissed from her position because of her statement opposing the United State’s military involvement in Iraq in a social studies class. The Circuit Court said that the First Amendment does not entitle primary and secondary teachers to cover topics, or advocate viewpoints, that depart from the curriculum adopted by the school system while teaching in a classroom setting.

2. Deschenie v. Bd. of Educ. of Cent. Consol. Sch. Dist. No. 22, 473 F.3d 1271

Here the Circuit Court ruled that a former teacher did not suffer unlawful retaliation for engaging in speech protected by the First Amendment after finding that the teacher’s speech, which concerned bilingual education, was not causally related to the adverse employment actions taken by the school board.

3. Casey v. W. Las Vegas Independent School District, 473 F.3d 1323

The school district and officials were sued for allegedly demoting and ultimately terminating a teacher for reasons that the teacher claimed constituted unlawful retaliation for her exercising her First Amendment rights. The court dismissed the appeal, commenting that the teacher failed to show that her statements concerning “the Head Start program” and miscellaneous violations of state or federal law were made in her capacity as a citizen and not pursuant to her “official duties.”

Making a false report of an incident to an employer

Making a false report of an incident to an employer

Sweeney v Safir, 267 AD2d 99, Motion to appeal denied, 95 NY2d 753

New York City police officer Kevin Sweeney reported that he was the victim of a gunpoint robbery of his fiancée’s car. He made these allegations in both police reports and in his testimony before a Grand Jury. The commissioner determined that rather than being the victim of a robbery -- the car had been simply stolen from the street when Sweeney left it double-parked with the keys in the ignition and the engine running. Sweeney was dismissed from his position for making false statements.

The Appellate Division unanimously confirmed the Commissioner's action, finding that “no basis exists to disturb” the commissioner's determination and that the penalty of dismissal does not shock its sense of fairness.

Medical examination procedures established by the employer negotiable

Medical examination procedures established by the employer negotiable

Professional Firefighters, Local 32, v City of Utica, 32 PERB 3056

The City of Utica unilaterally directed its firefighters to take a physical examination administered by a City-designated physician. It advised firefighters that it would terminate anyone who failed the examination. Local 32 filed an unfair labor practice charge with PERB alleging that the City had refused to negotiate “specific subjects related to the City's directive.”

PERB directed the City to negotiate the local's demands concerning “the pre-testing, testing, post-testing and re-testing procedures” and related issues, including the firefighter's ability to select the examining physician.