Basis for workers' compensation award

Basis for workers' compensation award
Scofield v City of Beacon Police Dept., 290 A.D.2d 845

A police officer is awarded a "scheduled loss" by the Workers' Compensation Board. As the Scofield decision demonstrates, under certain circumstances the employer may be entitled receive all or a portion of the award granted to the police officer in consideration of the salary payments it made to the officer as a result of his or her injury.

City of Beacon police officer Glenn Scofield suffered a work-related injury to his left knee. A year later he injured the same knee at work. In both instances he was "paid his regular wages pursuant to Section 207-c of the General Municipal Law" [GML].

The two relevant statutes in Schofield's case: GML Section 207-c and Section 30 of the Workers' Compensation Law [WCL].

GML Section 207-c provides for the continuation of a police officer who is injured in the line of duty on the payroll at full salary. WCL Section 30 provides that "(3) ... any salary or wages paid to, or the cost of any medical treatment or hospital care provided ... pursuant to [GML Section 207-c] shall be credited against any award of compensation ... under this chapter."

This provision, said the court, was added to the WCL to avoid any duplication of benefits paid to an injured police officer, as the combined total of GML and WCB benefits might exceed the salary the officer would have received for the period had the injury not occurred.

Following the second injury, the Workers' Compensation Board granted Schofield a 15% schedule "loss of use award" for the injury to his left leg. Beacon, citing WCL Section 30, asked for reimbursement from Schofield's schedule award for the compensation it had paid to Schofield after both injuries.

Although the award was based on Schofield's physician's opinion that his second injury "was caused entirely by the first injury," Schofield argued that Beacon's right to reimbursement from the award was limited solely to the wages Beacon paid to him prior to his second injury.

The Workers' Compensation Board disagreed. It said that the second injury was a consequence of the initial injury, not a new injury, and therefore, the two files should be combined. As a result, Beacon was held entitled to Section 30 reimbursement for all the wages it paid to Schofield "on the combined files."

The Appellate Division affirmed the Board's determination since "[w]hether a second injury is a consequence of an earlier one is a factual issue for the Board to resolve."

The court said that while a finding of consequentiality does not necessarily resolve the issue of reimbursability, "where, as here, both injuries were directly related to the impairment upon which the schedule award was based, full reimbursement is appropriate."

Random drug test administered pursuant to a settlement agreement of a disciplinary action

Random drug test administered pursuant to a settlement agreement of a disciplinary action
Gluck v Suffolk County Community College, Supreme Court, Ia Part 26 [Not selected for publication in the Official Reports]

An individual was terminated from his position of laborer by the Suffolk Community College [SCCC]. He sued, seeking reinstatement with full back pay and benefits.

The court noted that in connection with an unrelated matter, and the individual and SCCC entered into a stipulation in lieu of a disciplinary proceeding that provided as follows:

The employee will receive a (12) twelve month period of probation beginning upon the full execution of this agreement. During the period of probation the employee shall be subject to random drug and alcohol testing, wherein should the employee test positive on a drug/alcohol test, he shall be immediately terminated without the benefit of a hearing or any other protection afforded under Civil Service law or the Collective Bargaining Agreement.

The settlement agreement also provided that the employee's probationary period would begin upon his return to work in a full duty capacity. The employee reported for work on April 3, and was asked to submit to a drug and alcohol test. According to the ruling, the employee's urine specimen registered a temperature that was "out of range." He was asked to provide another urine sample for testing.

The employee was told that his refusal to take the test would be considered an automatic positive test result, which in turn would bring about his immediate suspension without pay. He agreed to provide a second urine specimen. However, he did not allow his supervisor to witness his providing the sample. The second sample was also "out of range" and the employee left the laboratory.

SCCC argued that the employee's failure to provide a witness-validated urine sample constituted a failure to cooperate with the sample collection procedure. This, SCCC said, was tantamount to the employee's refusal to submit to the test and the employee had been warned that his refusal to submit to the test would be deemed a positive test and would result in his immediate suspension without pay. Ultimately SCCC terminated the employee.

The employee sued, contending that he willingly gave both samples and was told by laboratory personnel that he was free to leave. He claimed that he had "no qualms about giving the samples because he had no history of drug use and does not abuse alcohol" and thus SCCC's decision to terminate him was arbitrary and capricious.

The court decided that “the record here, which must include the federal guidelines that apply to drug testing in the workplace,” demonstrates that SCCC's decision to terminate the employee was neither arbitrary nor capricious.

The employee, said the court, had agreed, as part of the disciplinary settlement stipulation he signed in February, to submit to random drug and alcohol testing. What happened on April 3, under the guidelines utilized by the laboratory facility conducting the test, was tantamount to a refusal to submit to such testing. As the employee was told what would happen under the circumstances, his conduct violated the terms of the stipulation.

The court's conclusion: there was a rational basis for SCCC's terminating the employee and his petition had to be dismissed.

Filing a notice of claim

Filing a notice of claim
Sangermano v BOCES of Nassau County, 290 AD2nd 498

Section 3813(1) of the Education Law requires that an individual who plans to sue a school district or a BOCES file a timely notice of claim with the entity he or she seeks to sue prior to initiating his or her lawsuit. Does this requirement apply to complaints alleging a violation of a human rights law?

Former Nassau County BOCES employee Michael Sangermano learned that sometimes the answer is yes, sometimes it is no, depending on the nature of the claim.

Sangermano sued the BOCES in an effort to recover damages for what he alleged constituted employment discrimination in violation of Executive Law Section 296, and violations of his right to due process pursuant to 42 USC 1983.

The Appellate Division said that the Supreme Court correctly granted BOCES' motion to dismiss Sangermano's claims alleging that the BOCES violated the Executive Law because he failed to file a timely Section 3813(1) notice of claim.

These claims alleged that Sangermano suffered constructive termination as a result of racial discrimination by the BOCES in violation of Section 296 of the Executive Law.

Citing Mills v County of Monroe, 59 NY2d 307, the Appellate Division deposed of this aspect of Sangermano's lawsuit when it held that:

Where a plaintiff seeks private relief, damages, or reinstatement for employment discrimination in violation of the Executive Law, the filing of a timely notice of claim is a condition precedent to [his or her filing] suit.

Sangermano's second claim alleging that he was forced to resign from his employment without having been afforded the "procedural safeguards and a right to be heard prior to termination" as guaranteed by a federal civil rights law, 42 USC1983, survived notwithstanding the fact that he had not filed a Section 3813(1) claim with the BOCES.

The court said that such a notice of claim requirement is inapplicable to claims filed pursuant to 42 USC 1983.