Students with a “disability for the purposes of IDEA” cannot establish a prima facie of unlawful discrimination based on the student being disabled for the purposes of ADA and §504

Students with a “disability for the purposes of IDEA” cannot establish a prima facie of unlawful discrimination based on the student being disabled for the purposes of ADA and §504

B.C., et al. v. Mount Vernon School District, et al, USCA 2^nd Circuit, No. 14‐3603‐cv

In addressing a question of “first impression”, the United State Circuit Court of Appeals, Second Circuit, held that as the definition of “disability” for the purposes of the Americans with Disabilities Act, 42 U.S.C. §12102(1), [ADA] claims and claims under the Rehabilitation Act, 29 U.S.C. §705(20), [§504] differ from the definition of “disability” for the purposes of claims advanced pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1401(3)(A) [IDEA].*

Accordingly, said the court, an individual with a “disability” under the IDEA does not categorically qualify as an individual with a disability under the ADA and §504 and data relating to “child[ren] with a disability” under the IDEA cannot establish a prima facie case with respect to a claim predicated on the plaintiff having a disability under the ADA and §504.

The court explained that “To establish a prima facie case of discrimination under either the ADAor §504, a plaintiff must show the following: (1) plaintiff is a “qualified individual with a disability;” (2) plaintiff was “excluded from participation in a public entity’s services, programs or activities or was otherwise discriminated against by [the] public entity;” and (3) “such exclusion or discrimination was due to [plaintiff’s] disability.”

Further, said  the Circuit Court, “[t]he ADAasks whether an impairment ‘substantially limits’ a major life activity,  while the IDEA trains on whether an impairment necessitates ‘special education and related services.’ Thus, a child might ‘need special education and related services’ by reason of an impairment, id., even if that impairment does not ‘substantially limit … [a] major life activit[y].’” Citing Ellenberg v. N.M. Military Inst., 572 F.3d 815, 821 (10th Cir. 2009), the court said “one may … qualify as ‘disabled’ under the IDEA for purposes of that statute without demonstrating a ‘substantially limit[ing]’ impairment.”

* The ADA and Section 504 define the term “disability” differently than the IDEA does. The ADA defines “disability” as a “physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. §12102(1)(A). Section 504 expressly incorporates, with certain qualifications not applicable here, the ADA’s definition. 29 U.S.C. §705(20)(B). By contrast, under the IDEA, a “child with a disability” has one or more of an enumerated list of impairments requiring “special education or related services."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/1be964f6-7e36-45ae-bd05-cbb35e4158b1/1/doc/14-3603_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/1be964f6-7e36-45ae-bd05-cbb35e4158b1/1/hilite/

Selected reports issued by the New York State Comptroller during the week ending September 17, 2016

Selected reports issued by the New York State Comptroller during the week ending September 17, 2016

Source: Office of the State Comptroller

[Internet links highlighted in color]

Former Pennellville Fire Chief Pleads Guity to petit larceny

Pennellville Volunteer Fireman’s Association (VFA) former Fire Chief Duane Royal pleaded guilty to petit larceny for stealing VFA gas for his private process-serving business. http://www.osc.state.ny.us/press/releases/sept16/091516.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20160918&utm_campaign=fiscal+oversight

Sunset Park, Brooklyn, an economic snapshot

The population, the number of jobs and businesses, and the wages being paid in Sunset Park, Brooklynare all growing at a rapid pace, according to a report released by New York State’s Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/osdc/rpt5-2017.pdf

Disparate treatment on the basis of a foreign accent is evidence of discrimination based on race or national origin

Disparate treatment on the basis of a foreign accent is evidence of discrimination based on race or national origin

Jeudy v City of New York, 2016 NY Slip Op 06045, Appellate Division, First Department

St. Jean Jeudy, born in Haiti, emigrated to the United States in 1994 and received a bachelor's degree in forensic science in 2003. Employed as a Criminalist I-B at New York City’s Office of the Chief Medical Examiner [OCME], in 2007 he applied for promotion to Criminalist II in early 2007 and was rejected.

By late 2010, Jeudy had been by employed by OCME for more than six years, but was still in an entry-level Criminalist I-B position. In contrast, a number of "non-black, American-accented" criminalists who were junior to him were promoted to Criminalist II and III.

Jeudy continued applying for promotion, and continued to be rejected. In March 2011, at his 2010 year-end review meeting, his supervisor told him that he was not being promoted because of his foreign accent. According to Jeudy, management had a standing practice of not promoting foreign-accented criminalists to Criminalist II, the level at which criminalists would be expected to testify in court, because management did not believe that foreign-accented criminalists could testify effectively.

The Appellate Division’s decision reports that:

1. A “Criminalist III told Jeudy that, as a result of his persistence and repeated complaints about not being promoted, management was 'out to get him'.”

2. “Thereafter, managers, including the heads of the Homicide and Sex Crimes Group to which Jeudy was assigned, embarked on a campaign to write [him] up for minor errors and give him unfavorable year-end reviews.”

3. Jeudy was served with “disciplinary charges and a suspension, which were resolved by a probationary retraining period.”

4. Jeudy “was given an unfavorable "Conditional" final performance rating, which was inconsistent with the favorable preliminary review he had been given only a month earlier.”

5. These actions resulted in Jeudy’s termination effective February 12, 2014.

In May Jeudy filed an Article 78 petition in Supreme Court asserting causes of action for racial and national origin discrimination and retaliation in violation of the New York State and New York City Human Rights Laws [HRL].

Supreme Court granted the City motion to dismiss Jeudy’s complaint on the grounds that they were [1] time-barred and that [2] he failed to state a cause of action. Jeudy appealed.

With respect to the question of timeliness, the Appellate Division said that the statute of limitations under the State and City HRLs is three years. Thus, said the court, as Jeudy filed his complaint in this action on May 23, 2014, allegedly discriminatory acts committed before May 23, 2011 are facially untimely. However, said the court, his claims under the New York State HRL for failure to promote after May 23, 2011 are timely as Jeudy had alleged sufficient facts to meet his pleading burden for purposes of defeating the City’s motion to dismiss.

Further, said the court, his claims for failure to promote under the City HRL were also timely as Jeudy has adequately alleged "a single continuing pattern of unlawful conduct [starting from his first promotion rejection in 2007] extending into the [limitations] period immediately preceding the filing of the complaint” which permits consideration under the City HRL of all actions relevant to that claim, including those that would otherwise be time-barred.*

In the words of the Appellate Division, “it is undisputed that [Jeudy] made out the first three elements of his claim of invidious employment discrimination under the State and City HRLs. We find that he also made out the fourth element, that he was adversely or differently treated because of his race or national origin ... by alleging that management had a standing practice of refusing to promote foreign-accented criminalists, invoked this practice against him, and ultimately suspended and then terminated him when he persisted in seeking promotion and complaining about his rejections."

The court said that notwithstanding the City’s contentions to the contrary, “disparate treatment on the basis of a foreign accent is evidence of discrimination based on race or national origin.”

In addition, the court noted that Jeudy’s complaint also state a cause of action for retaliation under both the State and City HRLs, rejecting the City’s argument that  Jeudy had not been engaged in a protected activity. The Appellate Division explained that as Jeudy’s complaint was that he was not being promoted on account of his accent and a “plaintiff's foreign accent is inextricably linked with his national origin.”

The Appellate Division also rejected the City’s arguments that Jeudy failed to show a causal relationship between his complaints and his suspension and termination and the allegations in his complaint establish that the City's concerted campaign of excessive scrutiny following Jeudy's persistent applications for promotion and complaints about continual rejection was calculated to, and did, lead directly to his suspension and termination.

* The Appellate Division also noted that “… while, as plaintiff concedes, the continuing violations doctrine only applies to his claims of failure to promote under the City HRL [citations omitted], even under the State HRL, he ‘is not precluded from using the prior acts as background evidence in support of a timely claim.’”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06045.htm

Are You a Micromanager? Get Over It.

Are You a Micromanager? Get Over It.

An article by Otis White posted on the Internet on September 14, 2016, by Governing. Copyrighted^© 2016 by Otis White, otwhite@civic-strategies.com; re-posted by NYPPL with permission.

Fiorello La Guardia, New York's legendary mayor, ran every aspect of the city from his desk. That's nothing to emulate.

In February 1945, John Gunther sat at Fiorello La Guardia's elbow for eight hours and 20 minutes and watched him work. Gunther was a famous journalist. La Guardia was New York's mayor and was even more famous -- a short, profane whirling dervish of energy and ideas.

La Guardia did not disappoint. As Gunther watched, the mayor made decisions in machine-gun fashion, riffling through letters and reports on his desk, barking at this three secretaries, interrogating subordinates. He even found time to hold a press conference while seated at his desk.

No item, it seemed, was too small for La Guardia's attention. When the president of the New York Board of Education dropped by, he grilled her about lunchroom decorum, personnel transfers (he told her he would handle one of them personally) and pay raises. They argued a while about whether an administrator should get a $500-a-year raise or a $1,000 raise. At La Guardia's insistence, he got $500.

Gunther was stunned. As he wrote later, La Guardia "really runs the entire machinery of New York City, in all its dazzling complexity, singlehandedly."

Some regard Fiorello La Guardia as America's greatest mayor ever. Maybe, but he was a terrible manager. If you are a mayor, agency director or someone managing a complex civic project, think carefully about La Guardia's management style -- and then run from it as fast and far as possible.

That's because La Guardia was what we would call today a "micromanager," and by inserting himself into so many decisions he undermined those who worked for him. In short, we don't need mayors or top administrators to be involved in minutia. We need them to make strategic decisions that bring major results.

So consider this two-part test next time you're handed an issue: Can this decision be made at a lower level by those who will be directly involved in its implementation? And if the decision is made at that level, is it likely to affect other interests? If the answer to the first question is yes and the answer to the second is no, then your response should be, "That's for you to decide." If the answer to the second question is yes, your response should be: "Pull together a group to make this decision and make sure these people are involved." Have a nagging sense that something might go wrong? Then add: "And when you reach a decision, run it past me."

Pushing decision-making to the appropriate level is one of the most important things a manager can do, for three reasons. First, all things being equal, it will result in better decisions. Believe it or not, teachers and cafeteria workers know more about lunchroom decorum than mayors. It makes sense, then, to have those closest to the decisions -- especially those who'll implement them -- involved in the solutions.

Second, it forces you to think about decision-making as a process and not just an act. And the more you think about the process, the better you can teach it to others. As you push decisions down, remind your managers of how good decisions are reached: with the right information, the right people, the right decision-making processes. Show them how to keep discussions open and frank, to consult widely about possible solutions and to consider testing solutions before fully implementing them.

Finally, pushing decisions down puts the emphasis where it should be, on hiring and training the right people. You cannot run a driver's license bureau, a downtown redevelopment project or the entire government of New York City by yourself. But you can, over time, staff it with good managers who'll make good decisions because they learned how to do so ... from you.

About the author

Otis White is president of Civic Strategies Inc., an Atlanta-based firm that does collaborative and strategic planning for local governments and civic organizations. He also writes frequently about civic leadership and change, in his blog at otiswhite.comand in national publications such as the New York Times. He originated the Urban Notebook feature on Governing.com in 2002, posting daily for five years.

In 2012, White published a multimedia book, "The Great Project: How a Single Civic Project Changed a City," for reading on an iPad. He hosts podcasts about civic leadership and is helping to create an annual event called the Civic Exchange to explore urban successes and how they come about. You can learn more about him at the Civic Strategies website.

From the Law Blogs

From the Law Blogs

Posted in Wolters Kluwer's WorkDay http://www.employmentlawdaily.com/

[Internet links highlighted in color]

United States Court of Appeals, Third Circuit, affirms jury’s finding that “agency reorganization” was pretext for unlawful termination of assistant county solicitor

By Lorene D. Park, J.D.

Declining to decide whether there is a “reorganization exception” to procedural due process requirements when a government employee with a protected property interest loses her job in a “reorganization,” the Third Circuit found that such an exception would not apply here because the evidence indicated the assistant county solicitor’s termination was based not on identity-neutral, cost-driven reasons, but on the defendants’ knowledge of her and of the people who would occupy the part-time positions created to replace her full-time position. Essentially, the evidence supported the jury’s finding that the reorganization was pretext for unlawful termination. The appeals court affirmed the $94,232 award on the employee’s Section 1983 claim and affirmed the award of $186,018 in attorneys’ fees and costs (Mancini v. Northampton County).

Ms. Park’s article is posted on the Internet at:

http://www.employmentlawdaily.com/index.php/news/jury-found-reorg-was-pretext-to-oust-county-attorney-94k-award-upheld/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WK+WorkDay%29 

© 2016 CCH Incorporated. All rights reserved. The foregoing summary is reprinted with permission. This article was published in Wolters Kluwer Daily Reporting Suite on September 14, 2016. For more information, please click here [http://www.dailyreportingsuite.com/files/DailiesReprintPermissionsAfter7Days.pdf]

Virginia courts find the Uniformed Services Employment and Reemployment Rights Act of 1994 does not entitle returning military personnel to a 2-year convalescence period after reemployment

By Cynthia L. Hackerott, J.D.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA 38 U.S.C. 4301-4335) [USERRA] afford returning service members protection only during the act of rehiring, ruled the Virginia Supreme Court, in affirming a state trial court’s grant of summary judgment against a deputy sheriff who claimed that her employer failed to sufficiently accommodate her service-related disabilities. The county sheriff’s office met its obligations under USERRA by promptly reemploying the plaintiff in the same position she held prior to leaving for service, the court found. It also determined that the sheriff was not required to allow her a two-year convalescence period following reemployment before terminating her employment (Huff v. Winston).

Ms. Hackeroff’s article is posted on the Internet at: http://www.employmentlawdaily.com/index.php/news/returning-service-member-not-entitled-to-2-year-convalescence-period-after-reemployment/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WK+WorkDay%29 

© 2016 CCH Incorporated. All rights reserved. The foregoing summary is reprinted with permission. This article was published in Wolters Kluwer Daily Reporting Suite on September 14, 2016. For more information, please click here [http://www.dailyreportingsuite.com/files/DailiesReprintPermissionsAfter7Days.pdf]



United States Court of Appeals, Ninth Circuit, rules supervisors of county employee are immune from lawsuit alleging deliberate indifference to a known workplace danger

By Lorene D. Park, J.D.

Although the widow of a health district employee who died due to workplace exposure to toxic mold had shown a violation of a due process right to be free from state-created danger, a divided panel of the Ninth Circuit nonetheless reversed an order denying qualified immunity to two of the employee’s superiors because it was not clearly established, at the time of their allegedly unconstitutional actions, that the state-created danger doctrine applied to claims based on workplace conditions. Judge Noonan dissented and Judge Murguia dissented in part (Pauluk v. Savage).

Ms. Park’s article is posted on the Internet at:

http://www.employmentlawdaily.com/index.php/news/supervisors-immune-from-suit-claiming-deliberate-indifference-to-known-danger-of-workplace-toxic-mold/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WK+WorkDay%29 

© 2016 CCH Incorporated. All rights reserved. The foregoing summary is reprinted with permission. This article was published in Wolters Kluwer Daily Reporting Suite on September 14, 2016. For more information, please click here [http://www.dailyreportingsuite.com/files/DailiesReprintPermissionsAfter7Days.pdf]
 

Selected reports issued by the New York State Comptroller September 13, 2016

Selected reports issued by the New York State Comptroller September 13, 2016

Source: Office of the State Comptroller

[Internet links highlighted in color]

City Universityof New York – Control over integrated resources and services tool 

CUNYfirst replaced CUNY’s legacy computer systems as an integrated and flexible state-of-the-art program. Auditors, however, concluded that CUNY’s processes and controls did not adequately restrict CUNYfirst users’ access to ensure that individuals only had appropriate roles assigned. For example, a student had access to a business application that students normally cannot access. Multiple individuals also appeared to have roles for which they had no business purpose. For example, 22 employees outside of financial aid could apply for student loans for individuals other than themselves. Also, a student employee had unauthorized grade change capability. For the period January through May 2015, this student employee changed grades 127 times for other students. http://osc.state.ny.us/audits/allaudits/093016/15s34.pdf

State Education Department – ARC of Ulster-Green compliance with the reimbursable cost manual 

For the year ended Dec. 31, 2014, The ARC of Ulster Greene generally complied with state guidelines for reimbursement. Auditors identified $995 in other-than-personal-service costs charged to the programs that did not comply with SED’s requirements for reimbursement. http://osc.state.ny.us/audits/allaudits/093016/15s60.pdf

Energy Research and Development Authority – NY-Sun Incentive Program 

NYSERDA’s oversight of NY-Sun is adequate; however, auditors identified two areas where additional controls are necessary. NYSERDA established 210 days as the expected time required for installers to complete most projects, and an extension request is required if the project exceeds this timeframe. However, 1,568 projects not only have exceeded 210 days, but have been open for more than 300 days, and do not have an extension request. Auditors found NYSERDA had not completed the required inspections of the initial three jobs for some new installers, nor has it documented the reasons for the deviation. http://osc.state.ny.us/audits/allaudits/093016/15s91.pdf

 
State Universityof New York – Compliance with the Jeanne Clery Act [20 USC §1092(f)] 

An initial audit report issued in August 2014 found that certain SUNY colleges published inaccurate crime statistics on their Annual Security Reports or to the Department of Education which could affect the public's ability to accurately assess college safety and security and make valid comparisons among colleges. In a follow-up report, auditors found SUNY officials have made some progress in correcting the problems identified in the initial report. However, improvements are still needed. http://osc.state.ny.us/audits/allaudits/093016/16f4.pdf

Office of General Services – Hourly based information technology services 

Auditors found OGS does not have an effective process to ensure a candidate consultant’s qualifications meet the mandatory qualifications specified by the agencies using the Hourly Based Information Technology Services (HBITS) contract, so OGS could not ensure it paid the correct hourly bill rates.  In particular, OGS does not ensure the HBITS vendors fulfill their contractual obligation to verify that a candidate has the mandatory qualifications specified by the agencies, nor do OGS staff verify the mandatory qualifications. http://osc.state.ny.us/audits/allaudits/bseaudits/bse20160902.pdf

Westchester County Health Care Corp. – Supplemental payments to executive employees 

From 2013 through 2015, WCHCC paid 18 executives (with base salaries totaling about $21.6 million) almost $4.6 million in supplemental payments. The largest supplemental payments (totaling about $2.7 million) were made to the chief executive and the chief financial officer and accounted for almost 59 percent of the total paid. WCHCC officials stated that senior management had goals and were evaluated on achieving those goals before receiving their payments. During the audit period, senior managers often did not submit goals and achievements statements. Further, WCHCC officials could not provide written performance evaluations for any senior managers. Auditors identified other payments that may require further examination by WCHCC officials which, among other things, included sign-on and retention bonuses. Auditors also found that not all of the supplemental payments were reported to the Authorities Budget Office. http://osc.state.ny.us/audits/allaudits/093016/15s77.pdf

New York State Department of Civil Service expands opportunities for advances placement in generalist job titles

New York State Department of Civil Service expands opportunities for advances placement in generalist job titles

Source: State Personnel Management Manual Advisory Memorandum #16-04

Scott DeFruscio, Director of Staffing Services, New York State Department of Civil Service has advised State department and agency personnel, human resource, and affirmative action offices of a further expansion of the pre-approved minimum qualifications that can be used for advanced placement of eligibles on the Professional Career Opportunities [PCO] list or the State Education Department's Public Administration Trainee Transition [PATT] list to PCO Generalist Job Titles.

Such advanced placement appointments are made at the discretion of the appointing authority.

Eligibles who have a Juris Doctor, master's or higher-level degree in a field related to the duties of the position may be advanced placed to the Trainee 2 level of two-year traineeships. Eligibles possessing a duties-related Juris Doctor, master's or higher-level degree and one year of experience performing the duties of the journey level title may be advanced placed to the journey level of two-year traineeships.

An appointing authority has discretion in determining whether an eligible’s degree is related to the duties of the position and the Division of Classification and Compensation can provide assistance in making these determinations.

A PDF format version of Advisory Memorandum 16-04 is posted on the Internet at: https://www.cs.ny.gov/ssd/pdf/am16-04.pdf

Processing an application for accidental disability retirement

Processing an application for accidental disability retirement

Magistro v DiNapoli, 2016 NY Slip Op 05893, Appellate Division, Third Department

Bodenmiller v DiNapoli, 2016 NY Slip Op 05894, Appellate Division, Third Department

Members of the New York State Policemen's and Firemen's Retirement System injured on the job and and as a result are "physically or mentally incapacitated for performance of duty” may apply for an accidental disability retirement allowance pursuant to §363 of the Retirement and Social Security Law or, where his or her disability did not result from an accident, for a performance of duty disability retirement allowance pursuant to §363-c of the Retirement and Social Security Law.* 

For the purposes of  determining an individual's eligibility for an accidental disability retirement allowance pursuant to §363, in Lichtenstein v Board of Trustees of Police Pension Fund, 57 NY2d 1010, the Court of Appeals defined the term accident as "a sudden, fortuitous mischance, unexpected, out of the ordinary and injurious in impact." Whether a "mischance" is an accident for the purposes of §363 is determined on a case-by-case basis.

The Magistro decision by the Appellate Division illustrates the application of the “accident standard” in determining the nature of the event that resulted in the injury while the Bodenmiller decisions explains the quasi-judicial procedures that are to be followed when considering an application an accidental disability retirement allowance.

The Magistro decision

City of Poughkeepsie police officer David M. Magistro was dispatched to a residence where a burglary had occurred. In the course of his checking the residence for possible entry points and crime scene evidence, he went to inspect a small porch that was connected to the house by wooden stairs. The stairs were partially covered by an overhanging roof. It had rained that morning and when Magistro stepped on the top step he slipped and slid down the handrail before eventually catching himself. As a result of injuries that he sustained, Magistro filed an application for accidental disability retirement benefits.**  

Magistro’s application was initially administratively denied on the ground that the incident did not constitute an accident for the purposes of the Retirement and Social Security Law. He  requested a hearing and redetermination and, following the hearing, the Hearing Officer denied his application for the same reason. The Comptroller subsequently adopted the Hearing Officer's findings and Magistro filed a petition pursuant to Article 78 of the CPLR challenging the Comptroller’s determination.

The Appellate Division sustained the Comptroller’s decision noting that “[i]t is well settled that, for purposes of the Retirement and Social Security Law, an accident is a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact," the Lichtenstein test. 

The court then explained that the burden is on the party seeking benefits to establish that the injury-producing event was accidental in nature and in order to be deemed accidental, an injury must result from a risk that is not an inherent part of the applicant's regular job duties or from a hazard that cannot be reasonably anticipated by the individual.

The Appellate Division explained that Magistro’s search of the residence following the burglary was a part of his routine duties as a police officer and he acknowledged that it was lightly raining when he conducted the search. Although he did not see water pooling on the stairs, he believed that they were wet and stated that he did not realize that the stairs were slippery until his foot slipped on the top stair.

The Appellate Division held that Magistro “could have reasonably anticipated the slippery condition of the stairs under the circumstances presented.”

Although Magistrotheorized that the stairs were slippery because they had been painted with interior paint and were not constructed in accordance with the relevant building code, the court said that this explanation of the cause of Magisto's injury presented a credibility issue for Comptroller to ultimately resolve. Here, said the Appellate Division, substantial evidences supported the Comptroller’s determination rejecting Magistro’s application for accidental disability retirement benefits and “we decline to disturb it.”

The Bodenmiller decision

Robert Bodenmiller, a police officer with the Suffolk County Police Department, received a call concerning a female patient who had left the grounds of a psychiatric facility. Bodenmiller found the woman at a nearby restaurant and, while he was questioning her, a man, who appeared to be carrying a weapon and was yelling loudly, rushed toward them. Bodenmiller turned toward the man, extended his left arm and fired his weapon twice, striking the man and injured his left shoulder during the incident.

Bodenmiller applied foraccidental disability retirement benefits but his application was administratively denied on on the ground that the incident as described by Bodenmiller did not constitute an accident within the meaning of the Retirement and Social Security Law. Bodenmiller requested a hearing and redetermination and, following the hearing, the Hearing Officer denied his application for the same reason. Ultimately the Comptroller accepted the Hearing Officer’s findings and denied Bodenmiller application.

In the course of the Article 78 proceeding that followed, the Comptroller conceded, and the Appellate Division agreed, that the Hearing Officer had applied the incorrect legal standard in rendering her decision.

Specifically, said the court, the Hearing Officer confined her analysis to whether the initial administrative determination was supported by substantial evidence and did not undertake making a re-determination, exercising “the same powers upon such hearing as upon the original application.”

Citing DeMaio v DiNapoli, 137 AD3d 1545, the Appellate Division ruled that such a deficiency constituted an error of law and required annulment of the Comptroller’s determination. The court then remitted the matter to the Comptroller for a new hearing. 

* While §363-c benefits are less generous than §363 benefits, the standard for allowing the benefit is less rigorous as the incident does not have be "accidental in nature." 

N.B. §363-c(h) provides that §363-c benefits are not available to individuals eligible to receive accidental disability retirement benefits pursuant to §363-b, which section applies to sworn officers of the Division of State Police who became disabled prior to July 1, 1974.

**  Magistro had also filed an application for performance of duty disability retirement benefits, which application was approved.

The Magistro decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05893.htm

The Bodenmiller is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05894.htm

 _____________________

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

 _____________________

 

Selected reports issued by the New York State Comptroller during the week ending September 10, 2016

Selected reports issued by the New York StateComptroller during the week ending September 10, 2016

Source: Office of the State Comptroller

[Internet links highlighted in color]

New York’s Service-Disabled Veteran-Owned Business program

The State's Office of General Services has made substantial progress establishing New York’s Service-Disabled Veteran-Owned Business program in a short time and the program would benefit from the adoption of a comprehensive statewide plan for implementation, according to an auditreleased by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/sept16/090716a.htm?utm_source=weekly+news&utm_medium=email&utm_term=sdvob&utm_content=20160911&utm_campaign=fiscal+oversight

Audits of School Districts

Amherst Central School District – Financial Condition -
http://www.osc.state.ny.us/localgov/audits/schools/2016/amherst.pdf

Friendship Central School District – Procurement -
http://www.osc.state.ny.us/localgov/audits/schools/2016/friendship.pdf 

Harrisville Central School District – Claims Audit - 
http://www.osc.state.ny.us/localgov/audits/schools/2016/harrisville.pdf

 

Oswego County Board of Cooperative Educational Services (BOCES) – Separation Payments -
http://www.osc.state.ny.us/localgov/audits/schools/2016/oswegocoboces.pdf

Roslyn Union Free School District – Cash Receipts -

http://www.osc.state.ny.us/localgov/audits/schools/2016/roslyn.pdf

Sag Harbor Union Free School District – Child Care Program
http://www.osc.state.ny.us/localgov/audits/schools/2016/sagharbor.pdf

There is a presumption that an accident that occurred in the course of employment arose out of that employment

There is a presumption that an accident that occurred in the course of employment arose out of that employment

Oathout v Averill Park Cent. Sch., 2016 NY Slip Op 05892, Appellate Division, Third Department

The Workers' Compensation Board ruled that a claimant for workers’ compensation benefits employed as a custodial worker by the Averill Park Central School District sustained a compensable injury. The Board subsequently denied a request by the School District for reconsideration and/or full Board review.

The Averill Park Central School District, a self-insured employer and its third-party administrator [School District] had controverted the employee's claim for workers' compensation benefits. Following a hearing, the Workers' Compensation Administrative Law Judge found that the employee had sustained a work-related injury and awarded the claimant workers' compensation benefits.

The Appellate Division affirmed the Board’s decision, explaining that "Whether a compensable accident has occurred presents a question of fact for resolution of the Board and its decision will be upheld when supported by substantial evidence." Further, said the court, "absent substantial evidence to the contrary, a presumption exists that an accident that occurs in the course of employment arises out of that employment."

The claimant had testified that she had just finished cleaning the school gymnasium and was walking down a hallway with a coworker when she felt the sharp pain in her foot. This said the Appellate Division, gave rise to the statutory presumption.

Claimant’s treating physician had opined that the injury "maybe partially [due] to her metatarsus adductus"* while the School District’s medical expert who performed an independent examination on claimant, “was unable to draw a direct connection between the claimant's [medical] condition and the [claimant’s] injury.”

The School District argued that the statutory presumption was rebutted by proof that the claimant’s injury had not stemmed from an accident associated with her job duties but was an idiopathic condition, her congenital metatarsus adductus.

However, giving deference to the Board's resolution of any credibility issues involved in making its determination, the Appellate Division held that substantial evidence supported the Board’s determination that the injuries arose out of and in the course of claimant's employment and sustained its decision that the claimant had sustained a work-related injury.  

* Metatarsus adductus, also known as metatarsus varus, is a common foot deformity noted at birth that causes the front half of the foot, or forefoot, to turn inward.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05892.htm