Determining the impact of performing light, limited or restricted duty on applications for disability retirement benefits

Determining the impact of performing light, limited or restricted duty on an application for disability retirement benefits

Koenig v DiNapoli, 2016 NY Slip Op 03942, Appellate Division, Third Department

2 NYCRR 364.3 addresses situations in which a member of the New York Stateand Local Police and Fire Retirement System [SLPFRS] has been assigned to light, limited or restricted duty applies for disability retirement benefits.

If the SLPFRS member has been assigned to light, limited or restricted duties for less than two years prior to the date application for disability retirement benefits was filed with the Comptroller and has not performed at least 100 hours of paid overtime in any 12-month period within such two-year period, SLPFRS is to “render its determination on the issue of permanent incapacity on the basis of the duties and job requirements of such previous full duty assignment.”

In contrast, if the SLPFRS member has been continuously assigned to light, limited or restricted duties for at least two years prior to the date application for disability retirement benefits SLPFRS  is to render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment.

If, however, the SLPFRS member has been continuously assigned to light, limited or restricted duties for at least one year prior to the date application for disability retirement benefits was filed performed at least 100 hours of paid overtime while on light, limited or restricted duty assignment during any 12-month period within the two-year period prior to the filing of the application for disability retirement, SLPFRS is to base its determination on the issue of permanent incapacity “on the basis of such light, limited or restricted duty assignment.”

In July 2007, Daniel G. Koenig, a police officer, was injured when a bullet fragment from another police officer's gunshot ricocheted off a target at the firing range and struck petitioner in the leg. Koenig returned to work in December 2007 and placed on light duty assignment. In January 2009, Koenig filed an application for accidental disability retirement benefits.

The New York State and Local Police and Fire Retirement System [SLPFRS] assessed Koenig's disability application on whether he was incapacitated from the performance of the duties assigned to light duty work in accordance with 2 NYCRR 364.3(c).*

The Comptroller, however, accepted the findings and conclusions of the Hearing Officer, concluding that whether Koenig was permanently disabled from the performance of his duties should be evaluated on the basis of his light duty assignment and thereafter denied his application for accidental disability retirement benefits. The Comptroller, in effect, held that Koenig was not disabled from continuing to perform his light duty assignment.

Koenig filed an Article 78 petition challenging the Comptroller’s determination, contending that as the hearing had already been commenced under the full duty performance standard, the provisions of 2 NYCRR 364.3(c) should not control. He also claimed that he had not worked 100 hours or more of overtime.

The Appellate Division held that Koenig's contention that it was error, following the commencement of the hearing, to change the standard upon which to evaluate his disability retirement application from full duty to light duty performance, particularly given that he already had presented medical testimony based upon his full duty assignment, “was without merit.” The court said that evidence in the record established that Koenig continuously performed light duty assignment for a year following his return to work and also performed at least 100 hours of paid overtime during a 12-month period prior to filing his application for disability retirement benefits. Accordingly, said the court, 2 NYCRR 364.3(c) requires that the determination on the issue of permanent incapacity be evaluated on the basis of the light duty assignment.

Although Koenig sought to deduct mandatory overtime for medical evaluations or court appearances and contractual travel overtime from his total hours of overtime, the Appellate Division said that it found “nothing irrational, unreasonable, arbitrary or capricious in the Comptroller's interpretation that, under the circumstances herein, such overtime was reasonably anticipated by the regulation and should not be excluded from the total overtime hours reported.”**  Further, explained the court citing Bombace v Nitido, 117 AD3d 1375, “[t]he Comptroller is vested with . . . the duty to correct errors and cannot be estopped to create rights to retirement benefits to which there is no entitlement.”

Although Koenig was given the opportunities to recall or have his medical expert submit an affidavit as to his ability to perform light duty work and also was informed that appropriate time would be given in order for him to present any additional evidence or witnesses, he declined to do so.

The Appellate Division ruled that as Koenig presented no evidence regarding his inability to perform light duty work, the Comptroller's denial of his application for accidental disability retirement benefits “will not be disturbed.”

* 2 NYCRR 364.3(c) provides the member has been continuously assigned to light, limited or restricted duties for at least one year prior to the date application for disability retirement benefits was filed with the Comptroller has performed at least 100 hours of paid overtime while on light, limited or restricted duty assignment during any 12-month period within the two-year period prior to the filing of the application for disability retirement, SLPFRS “shall render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment.”

**The Appellate Division observed that even under his own assessment, Koenig completed more than 90 hours of voluntary overtime during the relevant 12-month period.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03942.htm

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The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

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Selected reports issued by the Office of the State Comptroller during the week ending May 21, 2016

Selected reports issued by the Office of the State Comptroller during the week ending May 21, 2016

Click on text highlighted in color to access the entire report

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued:

Metropolitan Transportation Authority -  Paratransit service “Access-A-Ride” accident claims

State Education Department (Center for Disability Services) - Compliance with the Reimbursable Cost Manual

State Education Department (Crossroads Center for Children) -  Compliance with the Reimbursable Cost Manual

State Education Department (Helping Hands School) - Compliance with the Reimbursable Cost Manual

Workers' Compensation Board – Examination of Workers’ Compensation daily payment requests by claimants and medical providers

Retailers agree to increased use of renewable energy

New York State Comptroller Thomas P. DiNapoli announced that Fortune 500 retailers Best Buy and Nordstrom have agreed to the New York State Common Retirement Fund’s request that they increase the use of renewable energy in their operations and supply chain.

http://www.osc.state.ny.us/press/releases/may16/051816.htm?utm_source=weekly+news&utm_medium=email&utm_term=corporate+governance&utm_content=20160522&utm_campaign=pension+fund

State ends fiscal 2015-2016 with strong cash position due to “temporary resources”
 
The state collected $153.3 billion in State Fiscal Year (SFY) 2015-16, an increase of 2.8 percent from a year earlier, and ended the SFY $1.9 billion higher than initial projections, largely because of legal settlements and personal income tax collections, according to a reportreleased by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/may16/051316a.htm?utm_source=weekly+news&utm_medium=email&utm_term=fiscal+report&utm_content=20160522&utm_campaign=fiscal+oversight

State contract and payments – April 2016
 
State Comptroller Thomas P. DiNapoli announced his office approved 990 contracts valued at $750 million and approved nearly 3.9 million payments worth more than $10.4 billion in April. His office also rejected 116 contracts and related transactions valued at $330 million and nearly 6,000 payments valued at more than $10.7 million due to fraud, waste or other improprieties.

http://www.osc.state.ny.us/press/releases/may16/052016.htm?utm_source=weekly+news&utm_medium=email&utm_term=state+operations&utm_content=20160522&utm_campaign=fiscal+oversight

An administrative decision annulled and remanded for a new hearing based on a judicial finding that it is “affected by errors of law”

An administrative decision annulled and remanded for a new hearing based on a judicial finding that it is “affected by errors of law”

DeMaio v DiNapoli, 2016 NY Slip Op 02505, Appellate Division, Third Department

VHB, a correction officer, applied for performance of duty disability retirement benefits alleging that he was injured while escorting an inmate away from an altercation between the inmate and another correction officer. The application was initially denied by the Retirement System and VHB requested a hearing and redetermination.

Following the hearing, the Hearing Officer upheld the initial denial of VHB’s application for duty disability retirement, concluding that VHB had not meet his burden of proof of establishing each and every element necessary to sustain his application and that the initial determination was supported by substantial evidence. The Comptroller accepted the findings and conclusions of the Hearing Officer and VHB initiated a CPLR Article 78 proceeding.

The Appellate Division said that the Hearing Officer's determination, which was adopted by the Comptroller, was affected by errors of law.

The court explained that the Hearing Officer had improperly noted that the applicable standard of review was whether the initial determination was "supported by substantial evidence." Rather than a review of the initial determination, the Appellate Division said that such a hearing is conducted to allow the Comptroller to make a “redetermination” with “the same powers upon such hearing as upon the original application.”

In addition, said the court, “the Hearing Officer's determination misstated the applicable burden.” VHB was required to establish that he is incapacitated from performing his work-related duties “as the natural and proximate result of an injury, sustained in the performance . . . of his or her duties by, or as the natural and proximate result of any act of any inmate” [emphasis supplied by the court].

Further, the Appellate Division said it has repeatedly held that the relevant statute, Retirement and Social Security Law §607-c[a],requires that an applicant for duty disability retirement benefits demonstrate that his or her injuries were “caused by direct interaction with an inmate … and have specified that such injuries must be caused by some ‘affirmative act on the part of the inmate’ … there is no legal support for the Hearing Officer's enhancement of such burden by indicating that VHB was required to demonstrate "an intentional overt act of an inmate” (emphasis supplied by the court).

Accordingly, the court annulled the Comptroller’s determination and remanded the matter to the Comptroller for a new hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02505.htm

An application for retirement benefits must be timely delivered to and received by the retirement system to be operative

An application for retirement benefits must be timely delivered to and received by the retirement system to be operative

Biscardi v New York State and Local Retirement Sys., 2016 NY Slip Op 03238, Appellate Division, Third Department

Valerie J. Biscardi initially applied for disability retirement benefits pursuant to Retirement and Social Security Law Article 15 in February 2012. She, however, withdrew that application in March 2012 and in September 2012 filed an application for “service retirement.”

In May 2013, Biscardi’s attorney, contending that Biscardi had filed an application for disability retirement on September 19, 2012, inquired about the status of Biscardi’s application for “disability retirement.” The New York State and Local Retirement System [SLRS] advised him that there was no record that [Biscardi] had filed a subsequent application for "disability retirement benefits” on September 19, 2012.

Following an administrative hearing, the Hearing Officer determined that Biscardi had not established that she had filed a timely application for disability retirement benefits as required by Retirement and Social Security Law §605.* The Comptroller adopted the ALJ's determination and Biscardi appealed.

The Appellate Division affirmed the Comptroller’s decision.

An application for disability retirement benefits, said the court, “must be filed, as relevant here, ‘within three months from the last date the member was being paid on the payroll.’” Kathleen Nowak, Director of Disability Services for the Retirement System, testified that a search of the Retirement System's records found Biscardi's February 2012 disability retirement application and the March 2012 withdrawal letter, “but no subsequent disability retirement benefits application.”

Although Biscardi contended that her counsel “timely mailed a second application” to the Retirement System in September 2012, the Appellate Division said that "simply mailing an application does not constitute filing; rather, filing only occurs upon actual delivery to and receipt by [the Retirement System]."

Accordingly, said the court, “substantial evidence supports the Comptroller's determination that [Biscardi] failed to file a timely application and it will not be disturbed.”

* In Biscardi’s case, RSSL §605[b][2] required that she file her an application for disability retirement benefits "within three months from the last date the member was being paid on the payroll."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03238.htm

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Unemployment insurance benefit denied where off-duty misconduct found to breach the standards of behavior expected of an employee in consideration of his or her duties

Unemployment insurance benefit denied where off-duty misconduct found to breach the standards of behavior expected of an employee in consideration of his or her duties

Hall (Commissioner of Labor), 2016 NY Slip Op 03797, Appellate Division, Third Department

An employee of the Office of Persons with Developmental Disabilities [OPDD], Richard Hall, was arrested at his home for possession of marijuana. When OPDD learned of Hall’s arrest, it placed him on indefinite suspension. While on suspension, Hall applied for unemployment insurance benefits but was disqualified from receiving them based on a finding that he had engaged in disqualifying misconduct.

While on suspension from his position with OPDD, Hall pleaded guilty to criminal possession of marijuana in the fourth degree and, in settlement of the administrative disciplinary charges then pending against him, OPDD reinstated Hall to his position after he had been out of work for 15 months.

With respect to Hall's claim for unemployment insurance benefits, ultimately an Administrative Law Judge [ALJ] ruled, among other things, that Hall’s plea of guilty to the criminal charge amounted to misconduct disqualifying him from receiving benefits. The Unemployment Insurance Appeal Board sustained the ALJ's decision and Hall appealed the Board’s determination.

The Appellate Division affirmed the Board’s ruling.

Citing Matter of Sinker [Sweeney], 89 NY2d 485, the court explained that criminal convictions arising from conduct occurring outside the workplace have been found to constitute disqualifying misconduct where the conduct demonstrates a breach "of the standards of behavior to be reasonably expected by an employer in light of the nature of the employment involved."

Here, said the court, Hall’s job duties included dispensing medications to developmentally disabled individuals. Given the environment in which Hall worked, the Appellate Division said that it was reasonable for OPDD to expect that Hall would not illegally use or possess controlled substances. Clearly, said the court, Hall's criminal conduct posed a risk to his employer's mission and was detrimental to its interests.

Accordingly, the Appellate Division found that substantial evidence supports the Board's finding that Hall had engaged in disqualifying misconduct.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03797.htm