ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

January 22, 2014

Apportioning liability for workers’ compensation benefits among the claimant’s various employers


Apportioning liability for workers’ compensation benefits among the claimant’s various employers
2013 NY Slip Op 07244, Appellate Division, Third Department

In some situations it becomes necessary for the Workers’ Compensation Board to consider the issue of apportionment of liability among a claimant's prior employers in accordance with Workers' Compensation Law §44.*.

The employee [Employee] began working for the Town in 2002. Prior to that, she had performed secretarial services for various employers, since 1966. In 2004 Employee sought medical treatment, complaining of pain in her hands and a weak grip, and she was diagnosed with carpal tunnel syndrome.

In 2007, Employee filed a claim for workers' compensation benefits. Her claim was initially established as an occupational disease of the left wrist, with a date of disablement of October 1, 2007 and was subsequently amended to include bilateral elbows and right carpal tunnel syndrome.

Employee was awarded a 25% schedule loss of use of the left hand in 2010 and the Town workers' compensation carrier sought apportionment of responsibility for liability of the claim with claimant's two most recent prior employers, covering the years between 1987 and 2002.

A Workers' Compensation Law Judge denied the carrier's request, finding no medical evidence that Employee had contracted her condition during her prior employment, and the Workers' Compensation Board affirmed upon administrative review. The Town and its carrier appealed.

The Appellate Division sustained the Board ruling, explaining that "In determining whether a claim should be apportioned between previous employers in the same field, the relevant focus is whether the claimant 'contracted an occupational disease while employed by that employer.'"

In support of the Board’s determination, the court said that Employee had testified that she had experienced some symptoms of pain in her wrists during her previous employments. but did not seek or receive medical treatment for her condition until 2004. Although an independent medical examiner opined that "there appears to be a cause for apportionment" and recommended that the claim should be apportioned 75% to the Town and 25% to Employee's previous employers, the medical examiner [1] “did not opine as to when [Employee] contracted her condition” and [2] “offered no objective medical proof in support of his findings.”

* §44. Liability of employer. The total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted. If, however, such disease, except silicosis or other dust disease and compressed air illness or its sequelae [sic - any abnormal condition that follows], was contracted while such employee was in the employment of a prior employer, the employer who is made liable for the total compensation as provided by this section, may appeal to the board for an apportionment of such compensation among the several employers who since the contraction of such disease shall have employed such employee in the employment to the nature of which the disease was due. Such apportionment shall be proportioned to the time such employee was employed in the service of such employers, and shall be determined only after a hearing, notice of the time and place of which shall have been given to every employer alleged to be liable for any portion of such compensation. If the board finds that any portion of such compensation is payable by an employer prior to the employer who is made liable for the total compensation as provided by this section, it shall make an award accordingly in favor of the last employer, and such award may be enforced in the same manner as an award for compensation. 

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_07244.htm

January 21, 2014

An arbitration award can be vacated if the award or order does not resolve the controversy submitted to the arbitrator


An arbitration award can be vacated if the award or order does not resolve the controversy submitted to the arbitrator
Westchester County Corr. Officers Benevolent Assn., Inc. v Cheverko, 2013 NY Slip Op 08451, Appellate Division, Second Department

The Westchester County Corr. Officers Benevolent Assn., Inc.filed a CPLR Article 75 petition seeking to confirm three arbitration awards in which the arbitrator ruled that three individuals [Officers] were entitled to benefits pursuant to General Municipal Law §207-c.*

Westchester County Department of Corrections Commissioner Kevin M. Cheverko appealed Supreme Court denial of his motion to vacate those awards.

The Appellate Division granted the Commissioner Cheverko’s appeal challenging the Supreme Court’s decision, explaining that an arbitration award is indefinite or nonfinal for purposes of CPLR §7511 and subject to vacatur "only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy."

In this instance, explained the court, the arbitrator’s awards providing the three individuals with benefits pursuant to General Municipal Law §207-c were indefinite or nonfinal for purposes of CPLR§7511 “as they did not address whether each Officer sustained a disability.”

Reversing the order “insofar as appealed from,” the Appellate Division said that the matter was to be remitted to the arbitrator “for further proceedings and a determination as to whether each officer sustained a disability.”

* General Municipal Law §207-c provides for the payment of salary, wages, medical and hospital expenses of law enforcement personnel suffering injuries or illness incurred in the performance of their duties.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_08451.htm



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General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html
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January 18, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 18, 2014


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 18, 2014
Click on text highlighted in color to access the full report

DiNapoli: 87 School Districts in Fiscal Stress

Eighty–seven school districts, 13 percent of school districts statewide, have been designated as fiscally stressed under State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System. DiNapoli’s office evaluated 674 school districts with fiscal years ending on June 30, 2013.


DiNapoli: Buffalo’s Financial Condition Improves

The city of Buffalo’s finances have stabilized in recent years because of careful budget planning, the oversight of a fiscal control board and increased state aid, according to a report issued Monday, January 13, 2014 by State Comptroller Thomas P. DiNapoli. The report is part of a series of fiscal profiles on municipalities across the state.


DiNapoli: School District Revenue Growth Slows

New York’s school districts have faced major fluctuations in their federal and state aid over the last decade and revenue growth was nearly flat the last three years, averaging only 1.3 percent, according to a reportissued Tuesday by State Comptroller Thomas P. DiNapoli. The report is part of DiNapoli’s fiscal stress initiative which is focusing greater attention on the issues that contribute to the financial pressures on local governments and school districts across the state.


DiNapoli and Investor Group Reach Shareholder Agreement with FirstEnergy

FirstEnergy, an Ohio–based energy producer, has agreed to produce a comprehensive report on the company’s plan to reduce greenhouse gas emissions, New York State Comptroller Thomas P. DiNapoli announced January 15, 2014. As a result, a shareholder resolutionco–filed by DiNapoli, Connecticut Treasurer Denise L. Nappier on behalf of the Connecticut Retirement Plans and Trust Funds, and investment group As You Sow has been withdrawn.


DiNapoli: Some Taxpayer Check–Off Donations Not Utilized for Worthy Causes

New Yorkers have contributed more than $51 million for worthy causes through check–offs on their personal income tax forms, but these funds often sit unused, according to a report issued January 15, 2014 by New York State Comptroller Thomas P. DiNapoli. More than $14 million has accumulated in six check–off funds, with nearly 90 percent of that for health–related causes including breast cancer, prostate cancer and Alzheimer’s disease.


DiNapoli: State Tax Receipts Below Projections Three Quarters Through Fiscal Year

State tax receipts for the first three quarters of the fiscal year were $534 million below the latest Financial Plan projections, according to a quarterly report on state finances released Friday by State Comptroller Thomas P. DiNapoli.


Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli on January 15, 2014 announced his office completed audits of






Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli on January 15, 2014 announced his office completed audits of:








Comptroller DiNapoli Releases State Audits

New York State Comptroller Thomas P. DiNapoli announced on January 17, 2014 the following audits have been issued:






the Department of Health.

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Electronic books [e-books] focusing on New York State and Municipal Public Personnel Law:


The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1900+ page e-book. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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