Workers’ Compensation Board’s finding that the injured volunteer firefighter’s condition had not changed mandates the continuation of the benefits being provided pursuant to the Volunteer Firefighters’ Benefit Law

Workers’ Compensation Board’s finding that the injured volunteer firefighter’s condition had not changed mandates the continuation of the benefits being provided pursuant to the Volunteer Firefighters’ Benefit Law
Giudi v New Paltz Fire Dept., 2012 NY Slip Op 08621, Appellate Division, Third Department

The genesis of this appeal was volunteer firefighter Jason Giudi's claim that he had suffered a head injury in the line of duty that adversely affected his ability to continue to work in his job in his regular capacity which resulted in a reduction in his income.

The Workers' Compensation Board ultimately found that the Giudi was permanently disabled and had been deprived of more than 75% of his earning capacity. Accordingly, the Board awarded Guidi benefits pursuant to Volunteer Firefighters' Benefit Law §10(1).*

Several years later the case was reopened by the Workers’ Compensation Board to address the New Paltz Fire Department's contention that Giudi 's condition had changed within the meaning of Volunteer Firefighters' Benefit Law §13** and thus Giudi’s entitlement to benefits should be reconsidered.

The Board sustained its earlier determination that Giudi was, and continued to be, permanently disabled. The Fire Department then challenged the Board’s decision but the Appellate Division dismissed its appeal.

Noting that substantial evidence supports the Board's finding that Giudi "remains unable to continue performing either the employment duties usually and ordinarily performed at the time of injury or those required by a reasonable substitute,” the Appellate Division affirmed the Board’s decision.

According to the ruling, Giudi testified that his work as a chef required substantial amounts of education and training and he has been forced to perform less mentally demanding work since his injury.

Noting that a clinical neuropsychologist who examined Giudi had opined that Giudi's “cognitive impairments continued to prevent him from working as a chef or military police officer,” the court said that the Board was free to credit this evidence --  “which provided ample justification for its finding that [Giudi] continues to suffer from a disability that deprives him of more than 75% of his earning capacity.”

* §10 of the Volunteer Firefighters Benefit Law provides for the payment of benefits in the event a volunteer firefighter suffers a permanent partial disability benefits as a result of his or her suffering an injury in the line of duty.

** §13 of the Volunteer Firefighters Benefit Law provides for the reclassification of a disability upon proof that there has been a change in the claimant’s condition

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08621.htm

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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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Failing to file a timely Article 78 petition bars consideration of the merits of the complaint

Failing to file a timely Article 78 petition bars consideration of the merits of the complaint
Gress v Brown, 2012 NY Slip Op 08564, Court of Appeals

In 2003, the Legislature enacted the Buffalo Fiscal Stability Authority Act (the Act) in consideration of the fact "that the city of Buffalo is facing a severe fiscal crisis, and that the crisis cannot be resolved absent assistance from the state."*

On April 21, 2004, the Buffalo Fiscal Stability Authority (BFSA) adopted its Resolution No. 04-35, which directed that "effective immediately, there shall be a freeze with respect to all wages, wage rates, and salary amounts for all employees of the City and all Non-exempt Covered Organizations, to the full extent authorized by the Act." 

This wage freeze, said the Court of Appeals, was intended "to prevent and prohibit anyincrease in wage rates, wages or salaries for any employee of the City or a Non-exempt Covered Organization," [emphasis supplied by the Court].

The Gress plaintiffs [Gress] were at-will, seasonal employees and commenced this class action alleging that the City violated the City of Buffalo's Living Wage Ordinance when it implemented BFSA’s Resolution 04-35. The Appellate Division agreed, holding that that the BFSA did not have the authority to freeze the wages of the Gress plaintiffs [see 82 AD3d 1654].

Significantly, Gress did not quarrel with the wage freeze generally but contested only its application to them through the BFSA's administrative action. Such a challenges, said the Court of Appeals, should have been raised by commencing a timely CPLR Article 78 proceeding naming BFSA as a respondent. Gress failed to file such a timely petition pursuant to Article 78 and was thus, said the court, barred from challenging the BFSA’s action or its authority to so act.

Rejecting the dissent’s argument that the BFSA, in fact, "had no authority to freeze the wages due the Gress plaintiffs pursuant to the Living Wage Ordinance," the majority ruled that “whether or not authorized to do so, the BFSA froze plaintiffs' wages and once this happened, the City and Mayor were bound by its action,” not having filed a timely challenge to such action.

* Public Authorities Law §3850-a

The decision is posted on the Internet at

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08564.htm

The penalty of termination imposed on petitioner was excessive in light of all the circumstances

The penalty of termination imposed on petitioner was excessive in light of all the circumstances
Principe v New York City Dept. of Educ., 2012 NY Slip Op 08568, Court of Appeals

The Court of Appeal, Judge Smith dissenting, said that Appellate Division [94 AD3d 43] “correctly determined that the penalty of termination imposed on petitioner was excessive in light of all the circumstances.”

The Appellate Division decided that “Given all of the circumstances, including the educator’s “spotless record as a teacher for five years and his promotion to dean two years prior to the incidents at issue,” the penalty excessive and shocking to [its] sense of fairness, citing the Pell Doctrine [Pell v Board of Educ. Of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222].”

NYPPL's summary of the Appellate Division’s ruling is posted on the Internet at:

http://publicpersonnellaw.blogspot.com/search?q=Principe

The Court of Appeals’ ruling is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08568.htm

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NYPER’s new e-manual A Reasonable Disciplinary Penalty Under the Circumstances - A Concise Guide to Penalties That Have Been Imposed on Public Employees in New York State Found Guilty of Selected Acts of Misconduct – is scheduled for publication in January 2013. For information about this e-manual send your e-mail to publications@nycap.rr.com with the word “Reasonable” in the subject line.

Claims that health impairments suffered by 9-11 first responders seeking benefits resulted from duties performed at the World Trade Center requires the pension fund to produce competent evidence to rebut the statutory presumption that such was the case

Claims that health impairments suffered by 9-11 first responders seeking benefits resulted from duties performed at the World Trade Center requires the pension fund to produce competent evidence to rebut the statutory presumption that such was the case

Bitchatchi v Board of Trustees of the N.Y. City Police Dept. Pension Fund, Art. II,  2012 NY Slip Op 08566, Court of Appeals

The Administrative Code of City of New York §13-252.1[1][a]* provides, in pertinent part, that: “Notwithstanding any provisions of this code or of any general, special or local law, charter or rule or regulation to the contrary, if any condition or impairment of health is caused by a qualifying World Trade Center condition as defined in section two of the retirement and social security law, it shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by such member's own willful negligence, unless the contrary be proved by competent evidence, " [emphasis supplied by the court].

Addressing a number of appeals involving police officers who responded to provide assistance at the World Trade Center following the September 11, 2001 attacks in which two officers sought accidental disability retirement benefits [ADR] and the surviving spouse of another officer made a claim for line-of-duty death benefits, the Court of Appeals said that “The common issue presented is whether the pension fund respondents produced competent evidence to rebut the WTC presumption accorded to petitioners' claims” by law.

In this instance the court held that “that respondents did not meet their burden of disproving that the officers' disabilities or death were causally related to their work at the World Trade Center and related sites,” and thus the applications of two officers seeking [ADR] benefits and the claim of the surviving spouse of the third officer for line-of-duty death benefits should be granted.

The court explained that although a claimant filing for ADR benefits ordinarily has the burden of proving causation in an administrative proceeding, the Legislature's response to the World Trade Center tragedy was to enact a new statute creating a rebuttable presumption in favor of ADR benefits for police officers who performed rescue, recovery or cleanup operations at specified locations, including the World Trade Center and the Fresh Kills Landfill.

Accordingly, under the WTC presumption, the pension fund bears the initial burden of proving that a claimant's qualifying condition was not caused by the hazards encountered at the WTC site as the Legislature created the WTC presumption to benefit first responders because of the evidentiary difficulty in establishing that non-trauma conditions, such as cancer, could be traced to exposure to the toxins present at the WTC site in the aftermath of the destruction.

Hence, unlike ordinary ADR claimants, first responders need not submit any evidence — credible or otherwise — of causation to obtain the enhanced benefits. Nevertheless, the Legislature did not create a per se rule mandating ADR benefits for all eligible responders. Rather, it provided that a pension fund could rebut the presumption by "competent evidence."

In other words, said the Court of Appeals, unlike the typical application for disability benefits, a pension fund cannot deny ADR benefits by relying solely on the absence of evidence tying the disability to the exposure.

* Similar provisions extend the WTC presumption to other classes of first responders, i.e., Administrative Code of City of NY §13-353.1 [firefighters]; Retirement and Social Security Law §363-bb[h] [state police]; and Retirement and Social Security Law §605-b[d] [sanitation workers]. The presumption also applies where a police officer later dies and death benefits are sought (Administrative Code of City of NY §3-252.1 [[4]).

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08566.htm

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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.

========================

A court’s review of a quasi-judicial administrative hearing is limited

A court’s review of a quasi-judicial administrative hearing is limited
Mannino v Department of Motor Vehicles.- Traffic Violations Division, 2012 NY Slip Op 08529, Appellate Division, Second Department

In this CPLR Article 78 proceeding the Appellate Division reviewed a determination of the Administrative Appeals Board of the New York State Department of Motor Vehicles that confirmed a determination of an Administrative Law Judge.

Sustaining the Board’s decision, and dismissing the proceeding on the merits, the Appellate Division set out the following guidelines addressing the role of the courts in considering appeals from a quasi-judicial administrative decision.

The court said:

[1] To annul an administrative determination made after a hearing directed by law at which evidence is taken, a court must conclude that the record lacks substantial evidence to support the determination, explaining that substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact;" and

[2] The courts may not weigh the evidence or reject the choice made by an administrative agency or tribunal where the evidence is conflicting and room for choice exists.

Deciding, upon review of the record, the record demonstrates that the findings of the Administrative Law Judge are supported by substantial evidence, the Appellate Division dismissed the appeal.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08529.htm

Audits released by the New York State Comptroller

Audits released by the New York State Comptroller

From the Office of the State Comptroller, December 11, 2012

On December 11, 2012 New York State Comptroller Thomas P. DiNapoli announced the following audits of State agencies by his office have been issued. 

The audits addressed such issues as overtime procedures, processing NYSHIP health insurance claims, travel expenses incurred by certain state workers, the disposal of computers, Medicade payments and dual employment.

Office of Court Administration, Controls Over Overtime Costs (2011-S-2)
Based on a random sample of 196 overtime payments, auditors found 110 lacked required written pre-approval for scheduled overtime and 86 lacked documentation to support that a required review was done to identify alternatives for unscheduled overtime. OCA's Financial Management Information System summary level overtime reporting was not being routinely provided to the courts for monitoring purposes and no user training for the System had taken place in years. Auditors recommended OCA ensure that supervisory staff comply with requirements for written preapproval of scheduled overtime and documented analysis of potential steps to avoid unscheduled overtime; make sure all appropriate steps have been undertaken to control public safety department overtime costs; and ensure that the new financial management system is rolled out with necessary user training and support.

New York State Health Insurance Program, Empire BlueCross BlueShield Coordination of Benefits With Medicare Part A Payments (2011-S-31)
Empire generally processed claims correctly when it was paid as the primary payer for patients with both Empire Plan and Medicare coverage. However, auditors found Empire was paid incorrectly as the primary payer on 13 claims totaling $254,141, when Medicare should have been the primary payer.
Auditors recommended Empire develop controls to help ensure it pays as the secondary payer when Medicare should be the primary payer; and periodically confirm with Civil Service the employment status of members who appear to be Medicare-eligible and have active employment status.

SUNY College at Cobleskill, Selected Employee Travel Expenses (2012-S-143)
As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors examined travel expenses for the highest-cost travelers in the state. These employees incurred more than $100,000 in travel expenses during the three year period ending March 31, 2011. One of these employees worked at the College at Cobleskill and had travel costs totaling $181,890. Auditors found that the travel expenses for the one College employee selected for audit were documented and adhered to State travel rules and regulations.

SUNY College at Oneonta, Selected Employee Travel Expenses (2012-S-145)
As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, we audited travel expenses for the highest-cost travelers in the state. These employees incurred more than $100,000 in travel expenses during the three year period ending March 31, 2011. Three of these employees worked at the College at Oneonta and had travel costs totaling $326,125. Auditors found that the travel expenses for the three College employees selected for audit were documented and adhered to State travel rules and regulations.

State Office for the Aging, Disposal of Electronic Devices (2012-S-39)
During March 2012, the office had amassed 18 computers that were ready for surplus sale. Using forensic software, auditors analyzed the media components of each device and found none contained any readable data and concluded the office has complied with requirements to protect sensitive information.

Department of Health Medicaid Payments for Dental Consultations (Follow-Up) (2012-F-27)
An initial audit report examined Medicaid payments to dental specialists for consultation services. Based on a statistical analysis of a sample of claims paid to ten dental specialists, auditors estimated the claims for these specialists alone accounted for at least $1.2 million of Medicaid overpayments to as much as $1.3 million. Auditors concluded that if these results held true for the claims of all other providers of dental consultations during the audit period, then New York's Medicaid program overpaid an additional $2.6 million. In a follow-up report, auditors found DOH officials have made significant progress in correcting the problems identified in the initial report.

City University of New York, New York City Department of Parks and Recreation - Questionable Timekeeping Practices Relating to the Dual Employment of Stationary Engineers (2011-S-27)
CUNY and Parks both employ stationary engineers, who are responsible for a variety of functions, such as operating and maintaining power plants for parks and maintaining campus buildings for CUNY. Auditors matched the state payroll, which accounts for CUNY employees, with the city payroll, which accounts for Parks employees, for the period July 1, 2009 to June 30, 2010, and identified ten stationary engineers who received combined earnings from both CUNY and Parks that ranged from $150,000 to $256,000. Auditors found 338 occasions where engineers reported being present at both jobs at the same time. In another 155 cases, there was no break between the times the staff reported leaving one job and starting their shift at the other. Auditors recommended management increase oversight of stationary engineers and their supervisors to ensure that all schedule changes are properly documented and approved and implement an automated timekeeping system and ensure stationary engineers follow regulations relating to dual employment.