Employer’s duty to provide a safe place to work does not extend to hazards inherent in the duties of the position

Employer’s duty to provide a safe place to work does not extend to hazards inherent in the duties of the position

Consalvo v City of New York, 53 AD3d 521

A New York City Sanitation Department employee was instructed to remove a dead cat from a public roadway. While removing the animal for the roadway the employee was struck by a hit-and-run driver, and thereafter died. Diane Consalvo sued the City, alleging wrongful death claming the City was negligent. The Supreme Court denied the City’s motion for summary judgment dismissing the action. On appeal, the Appellate Division, Second Department reversed the lower court’s ruling.

The Appellate Division said that “The duty of an employer to provide its employees with a safe place to work does not extend to hazards which are part of or inherent in the very work which the [employee] is to perform [nor] to secure the safety of [an employee] against a condition, or even defects, risks or dangers that may be readily observed by the reasonable use of the senses, having in view the age, intelligence and experience of the [employee]”

In this instance, said the court, the City demonstrated it was entitled to judgment as a law by showing that the employee was an experienced sanitation worker, that it was part of his work to pick up dead animals from the roadway, and that the risks inherent therein, including the risk of being struck by a car, were readily observable.

Consalvo relied upon union rules, which the court said “were promulgated not as a safety measure, but to promote efficiency,” and upon the alleged "custom" of the Sanitation Department to dispatch two workers to collect garbage. However, said the Appellate Division, such evidence did not raise a “triable issue of fact” sufficient to defeat the City's entitlement to judgment as a law.

In another “safe workplace” case, Scharff v Sachem Cent. School Dist. at Holbrook, 53 AD3d 538, the court said that although Labor Law §240(1) affords special protection to workers who sustain personal injuries as a result of elevation-related risks such as falling from a height or being struck by a falling object that was improperly hoisted, the provision does not "encompass any and all perils that may be connected in some tangential way with the effects of gravity."

The injured worker testified that he slipped and fell onto the surface of a roof of a school while working. The school district, said the Appellate Division, met its burden of establishing its prima facie entitlement to judgment as a law by showing that the employee’s injury was not incurred as a result of an elevation-related risk. The Appellate Division also commented that “Supreme Court properly found that the [worker’s] affidavit, in which he alleged that he also slid down the roof, contradicted prior deposition testimony and was an attempt to create a feigned issue of fact.

The Consalvo decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/employers-duty-to-provide-safe-place-to.html

The Scharff decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/worker-injured-while-working-above.html

 

The Doctrine of Collateral Estoppel held to bar applicant’s claim for unemployment insurance benefits

The Doctrine of Collateral Estoppel held to bar applicant’s claim for unemployment insurance benefits

Matter of Redd (Commissioner of Labor), 2012 NY Slip Op 05886, Appellate Division, Third Department

Initially suspended without pay from her employment for alleged misconduct, an arbitrator ultimately found the employee guilty of misconduct and terminated from her position.

The individual then filed for unemployment insurance benefits. The Unemployment Insurance Appeal Board denied her claim for unemployment insurance benefits on the basis that she lost her employment through misconduct.

The Appellate Division affirmed the Board’s decision, holding that as “there was a full and fair opportunity to litigate the issue in the prior proceeding, collateral estoppel* effect must be given to the arbitrator's factual findings regarding claimant's misconduct.”

Further, said the court, upon review it concluded that "the Board properly took into account the arbitrator's factual findings regarding the events which led to claimant's dismissal and then went on to reach its own conclusion as to whether claimant's behavior constituted [disqualifying] misconduct under the Labor Law."

As the record before court provided substantial evidence to support the Board's conclusion that claimant engaged in disqualifying misconduct, the Appellate Division said that it found no basis to reverse the Board’s ruling.

* The Doctrine of Collateral Estoppel holds that the determination of the facts litigated between the parties to an earlier proceeding are binding and conclusive on those parties in any subsequent litigation involving the same issue[s] and parties.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05886.htm

Mode of payroll payment should not affect the employer’s being reimbursed for the salary paid an educator while he or she was receiving workers’ compensation benefits

Mode of payroll payment should not affect the employer’s being reimbursed for the salary paid an educator while he or she was receiving workers’ compensation benefits
Pawlewski v Buffalo Bd. of Educ., 53 AD3d 834

A teacher employed by the Buffalo Board of Education, was injured when she fell at work. She was still out of work at the time of the relevant workers' compensation hearings. The controlling provisions of the collective bargaining agreement between the Board and the educator’s union provide that the teacher was continue to receive her regular wages and benefits for up to two years and "the salary allowance paid [to her] under worker[s'] compensation [would] be assigned to the [employer]."

Buffalo paid the teacher her full salary during this period but when it sought reimbursement, the Workers' Compensation Board modified its hearing officer’s determination, finding that Buffalo was not entitled to reimbursement for payments it made to the teacher for the “summer recess” period during which she was “on disability leave.”

Buffalo and its workers' compensation carrier appealed.

The Appellate Division noted that Workers' Compensation Law §25 (4) (a) “provides, in pertinent part, that if an employer ‘has made payments to an employee in like manner as wages during any period of disability, [the employer] shall be entitled to be reimbursed out of an unpaid installment or installments of compensation due.’”

In this instance the teacher had received her full annual wages, which had been paid in the same manner as she had received them before her injury in accordance with the contractual terms providing that a teacher's total annual salary is paid over a period of 10 months. Under the circumstances, said the court, the Board erred in reversing that part of the ALJ’s determination that would have reimbursed Buffalo for the summer recess period.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/mode-of-payroll-payment-should-not.html

Waiving further administrative or judicial consideration of the resulting decision as a conditions of electing a particular administrative review procedure binding

Waiving further administrative or judicial consideration of the resulting decision as a conditions of electing a particular administrative review procedure binding

Colon v New York City Employees' Retirement Sys., 2012 NY Slip Op 05819, Appellate Division, Second Department

When the application for a performance-of-duty retirement disability pension was denied by the Board of Trustees of the New York City Employees' Retirement System, the applicant was advised that there were three different options to seek review of the determination available: (1) to commence a CPLR article 78 proceeding within four months of receipt of the denial letter; (2) to request review of her case by a Special Medical Committee consisting of three independent physicians; or (3) to refile for a disability pension.

The applicant elected to have her case reviewed by the Special Medical Committee and, as a condition of obtaining such a review, waived any right to further administrative or judicial review of the Board of Trustees' determination.

The Special Medical Review Committee concluded that while the applicant was, indeed, disabled, the disability was not the result of a job-related accident.

Board of Trustees adopted the Special Medical Review Committee's recommendation, again denying the application, and the applicant filed an Article 78 petition seeking to overturn the Board’s determination.

Denying the appeal, the Appellate Division said that by “electing to have her case reviewed by the Special Medical Review Committee and executing a waiver of her right to further administrative or judicial review, [the applicant] agreed to accept the Special Medical Review Committee's determination as binding and conclusive.”

Noting that the applicant did not allege that the waiver was the result of coercion or duress and its terms were “clear and unambiguous,” the court explained that "[W]hen a waiver is freely and knowingly made and not the product of coercion or duress, a party can waive his rights to seek review of an administrative proceeding and such determination is binding."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05819.htm

Limitations on the use of sick leave by police officers

Limitations on the use of sick leave by police officers
Economico v. Village of Pelham, 50 NY2d 120

Is it lawful to terminate a police officer on sick leave at full pay if he or she is unable to perform the duties of the position due to a non-work related injury or disease?

In contrast to the discontinuation of a police officer from the payroll while he or she is eligible for benefits pursuant to §207-c of the General Municipal Law,* a police officer placed on a leave of absence pursuant to §72 of the Civil Service Law because of an injury or disease that is not work-related may be terminated from his or her position pursuant to §73 of the Civil Service Law at the discretion of the appointing authority.

Notwithstanding a Taylor Law contract provision providing for “unlimited sick leave with pay” for police officers unable to work due to non-service related disabilities, the New York State Court of Appeals has held that a police officer so disabled could be terminated pursuant to §73 of the Civil Service Law. The Court distinguished Economico from the Yonkers teacher case (Board of Educ. v Yonkers Fedn. of Teachers, 40 NY2d 268) where the Court held there was no prohibition against the establishment of a limited job security clause in a collective bargaining agreement.

The State’s interest in maintaining the efficiency and continuity of its civil service was held to be a substantial one and §73 truncates the employee’s right to be continued in his or her position without limitation, even in the face of a contract provision to the contrary, at the discretion by the appointing authority. It should be noted, however, that a police officer eligible for General Municipal Law §207-c benefits would be subject to the provisions of §71 of the Civil Service Law while a police officer absent due to an injury or disease that was not job-related is typically granted leave, with or without pay, pursuant to §72 of the Civil Service Law.

In Dolan v Whalen, 49 NY2d 991, the Court of Appeals held that a hearing in connection with termination pursuant to §73 is required if there is “some factual dispute impacting upon the employer’s right to discharge” the employee.**

Although §73 speaks of “termination,” such a termination is not a “dismissal” in a pejorative sense as the individual has certain rights to reinstatement to his or her former position, or a similar position, upon his or her recovery from the underlying disability or, if there is no suitable vacancy available at that time, the placement of his or her name on a preferred list. The same it true with respect to an individual who is terminated from his or her position while on leave pursuant to §71 of the Civil Service Law.

The police officer injured in the line of duty is entitled to unlimited leave with pay and other benefits pursuant to General Municipal Law, Sections 207-c(1), which leave is at full salary until the disability ceases or the individual retires or is retired, as provided by law. 

Further, the police officer cannot be required to use any leave credits available to him (Op. St. Comp. 79-356). The Comptroller’s Opinion noted that “a municipality and its policemen may not agree through collective bargaining that a policeman injured in the performance of his duties apply accumulated sick leave or vacation credits to receive the full amount of his salary during the period of his [or her] disability.”

* An appointing authority may not summarily terminate an individual’s §207-c disability benefits [Kempkes v Downey, 53 AD3d 547].

** See Sheeran v New York State Dept. of Transp., 18 NY3d 61, a case addressing the rights of an individual who has voluntarily absented him or herself from work due to a non-work related injury of disease and seeks to return to his or her position.

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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 and other disability retirement issues 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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Reports and information published by New York State's Comptroller Thomas P. DiNapoli

Reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of July 30 - August 5, 2012 [Click on the caption to access the full report]

DiNapoli: Special Education Contractor Bilked Taxpayers Out of $2.6 Million

IncludED Educational Services, a Cedarhurst–based provider of special education services, inappropriately charged New York City’s Department of Education and others more than $2.6 million over a two–year period, including more than $850,000 in salaries paid to the sons and other relatives of its executive director, according to an auditreleased Wednesday by State Comptroller Thomas P. DiNapoli. The findings have been referred to the Manhattan District Attorney’s Office.

DiNapoli: Auditors Block $1.4 Million in Improper Unemployment Insurance Payments

State Comptroller Thomas P. DiNapoli prevented $1.4 million in inappropriate unemployment insurance payments or payment requests by the Department of Labor, including to recipients that were employed, deceased or unauthorized to work in the United States, according to a reportreleased Tuesday. The Comptroller’s Office also found nearly $1 million in improper payments, which had already been paid.

DiNapoli: Local Governments Facing New Fiscal Reality

The Office of the State Comptroller has released a reportentitled New Fiscal Realities Challenge Local Governments, which is now available on our website. This summarizes 60 audit reports released in fiscal year 2011–12 that identified local governments with inaccurate budgeting practices. The report also summarizes 23 budget reviews that OSC completed during the same time period. The report outlines the Comptroller’s commitment to ensuring that local officials develop budgets that provide transparency and accountability to taxpayers. The report can be accessed on the OSC website at http://www.osc.state.ny.us/localgov/pubs/fiscalrealities2012.pdf.

DiNapoli: MTA Gave Apple Inside Advantage For Grand Central Terminal Lease

The Metropolitan Transportation Authority (MTA) slanted a supposedly competitive process to fill prime retail space in Grand Central Terminal in Apple’s favor, according to an auditissued Monday by New York State Comptroller Thomas P. DiNapoli. Auditors and investigators found that the MTA worked exclusively with Apple behind the scenes on a lease for more than a year before issuing a request for proposals that resulted in only one response — from Apple.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Tuesday announced his office completed the following audits: the Town of German; the Town of Hurley; the Town of Ridgeway; Washington County; and, the Westfield Volunteer Fire Department.