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

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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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

the Hampton Bays Union Free School District;

the Harpursville Central School District;

the Roosevelt Children’s Academy Charter School; and

the South Colonie Central School District.

Comptroller DiNapoli Releases Municipal Audits

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

the Afton Hose Company Emergency Squad;

the Town of Hampton;

the Town of Hopewell;

the Pember Library and Museum;

the City of Rye; Town of Sullivan; and

the Washington County Sheriff’s Department.

Comptroller DiNapoli Releases State Audits

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

the Research Foundation of the State University of New York;

the Port Authority of New York and New Jersey;

the New York State Health Insurance Program: Empire BlueCross and BlueShield;

the Department of Health;

the Office of Court Administration; and

the Department of Health.

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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/

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Employer not vicariously liable for employee misconduct if such misconduct was not committed in furtherance of the employer's business and within the scope of employment

Employer not vicariously liable for employee misconduct if such misconduct was not committed in furtherance of the employer's business and within the scope of employment

2013 NY Slip Op 08499, Appellate Division, Third Department

The girl friend [GF] of a town police officer [Officer] went to a pub with her girlfriend to purchase beer. GF was involved in a confrontation with the plaintiff that the Appellate Division said the substance of which is subject to considerable dispute. GF and her girlfriend left the bar and returned to Officer's residence. After listening to GF's version of what allegedly transpired at the pub, Officer, accompanied by GF, drove to the pub in GF's car and confronted Plaintiff, in the course of which confrontation Plaintiff suffered various injuries, including a fractured arm and a broken wrist.*

Plaintiff sued Officer and the Town contending, among other things, that the Town was vicariously liable for Officer's actions. The Town moved for summary judgment to dismiss the complaint against it. Supreme Court, finding that Officer was not acting within the scope of his employment at the time of the incident but, rather, was at the pub "as a ticked off boyfriend upset about conduct directed at his girlfriend by Plaintiff," granted the Town’s motion.

The Appellate Division affirmed the Supreme Court’s ruling, explaining that "The doctrine of respondeat superior renders an employer vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment." Accordingly, "where an employee's actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment."

Citing Campos v City of New York, 32 AD3 287, leave to appeal denied 8 NY3d 816; appeal dismissed 9 NY3d 593, the Appellate Division said that "[a] municipality cannot be held vicariously liable for acts perpetrated by a member of its police force in the course of engaging in a personal dispute, without any genuine official purpose, whether or not the police officer characterizes such conduct as an arrest or incident to an arrest."

Officer, said the court, by his own admission, was not on duty when he went to the pub and said to Plaintiff "I'm not here as a cop" and when pressed as to his reasons for confronting Plaintiff, Officer acknowledged that he only wanted "to see what [Plaintiff's] side of . . . the story was," and admitted that he was not there to "officially" investigate the alleged assault.

Such proof, said the Appellate Division was, in its our view, was more than sufficient to discharge the Town's initial burden on its motion for summary judgment.

As Plaintiff failed to present sufficient admissible proof to raise a question of fact as to whether Officer was acting within the scope of his employment at the time of the altercation with him, the court said that the Town was entitled to summary judgment dismissing his vicarious liability claims against it.

Addressing a collateral issue, Plaintiff allegation that the Town negligently hired, trained and/or supervised Officer, the Appellate Division said that "To establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, it must be shown that the employer knew or should have known of the employee's propensity for the conduct which caused the injury."

Although Officer had been convicted of assault in the third degree years earlier, one of the Town's representatives testified that the Town was aware of and discussed this incident with Officer prior to hiring him and that they thereafter did not receive any complaints regarding Officer's behavior. The Appellate Division ruled that “Under these circumstances, Officer's prior conviction — standing alone — was insufficient to put the Town on notice that he ‘was inclined toward conduct such as that which allegedly caused . . . Plaintiff's injuries.’"

* Disciplinary charges subsequently were lodged against Officer, who ultimately resigned from his position.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08499.htm
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Free Webinar by the IRS office of Federal, State and Local Governments

Free Webinar by the IRS Office of Federal, State and Local Governments

Source: Internal Revenue Service FSLG Newsletter

The Internal Revenue Service will hold a Webinar addressing the reporting requirements and taxation of certain employee benefits on February 6, 2014 at 2 p.m. Eastern Time.

The topics to be covered include:

■ Reporting requirements for accountable plans vs. non-accountable plans

■ Whether allowances are taxable fringe benefits*

■ Reporting requirements for group term life insurance

■ “Day meals” – what are they and if they are taxable

■ When stipends, bonuses, and gift cards are taxable fringe benefits

To register for this Webinar: Click here. You will use the same link to attend the event.

* For example, the City of Schenectady reports that it is currently being audited by the Internal Revenue Service. City Finance Commissioner Deborah DeGenova indicated that among the items being questioned is the City’s annual $125 boot allowance for new workboots provided to certain workers and its “W-9 System” used for reporting payments made to independent contractors to the IRS.
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Hearing officer free to credit the testimony of one medical expert over another’s when there are conflicting medical opinions in evidence

Hearing officer free to credit the testimony of one medical expert over another’s when there are conflicting medical opinions in evidence
2013 NY Slip Op 07040, Appellate Division, Second Department

An employee of the City of Mount Vernon Fire Department [Employee], alleging that the had sustained an on-the-job injury, was provided with benefits pursuant to General Municipal Law §207-a(1) based on this incident. §207-a(1) provides for the payment of salary, medical and hospital expenses of firefighters suffering injuries or illness incurred in performance of duties.

Employee subsequently applied for supplemental income benefits pursuant to General Municipal Law §207-a(2). Essentially §207-a(2) provides the payment of the difference between the amounts of his or her retirement allowance and the amount of his regular salary or wages, including negotiated salary increases, if any, until his or her mandatory service retirement age to a firefighter who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his or her if he or she is granted an accidental disability retirement allowance or a or similar accidental disability benefit provided by the pension fund of which he is a member;

The City of Mount Vernon [Mount Vernon] denied the application. Employee appealed the denial of his application and requested a hearing.

The hearing officer credited the testimony of the City's medical expert, who opined that Employee was not fully disabled because the expert believed Employee could still perform restricted duties and The City denied Employee any benefits available pursuant to General Municipal Law §207-a(2).

The Appellate Division dismissed Employee’s challenge to Mt. Vernon’s decision, explaining that judicial review of an administrative determination made after a hearing required by law at which evidence is taken is limited to whether the determination is supported by substantial evidence. Here, said the court. the hearing officer's determination is supported by substantial evidence.

The court noted that the testimony of Mount Vernon’s medical expert was consistent and supported by the medical evidence, and that the hearing officer was free to credit the testimony and report of that expert over any conflicting doctors' opinions contained in the Employee's medical records.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07040.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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