Evidence that the firefighter suffered disease or malfunction of the heart as the result of his or her duties and activities required to trigger the statutory presumption set out in the Volunteer Firefighters' Benefit Law

Evidence that the firefighter suffered disease or malfunction of the heart as the result of his or her duties and activities required to trigger the statutory presumption set out in the Volunteer Firefighters' Benefit Law

Huffer v Nesconset Fire Dist., 2016 NY Slip Op 06535, Appellate Division, Third Department

§61.1 of the  Volunteer Firefighters' Benefit Law provides that "[a] claim for benefits for the death or disability of a volunteer [firefighter] due to disease or malfunction of the heart or of one or more coronary arteries . . . shall not be denied provided the claimant introduces evidence which establishes that a volunteer [firefighter] suffered disease or malfunction of the heart or of one or more coronary arteries which caused the disablement or death of the volunteer [firefighter], and that such disease or malfunction resulted from the duties and activities in which the volunteer [firefighter] was engaged."*

Appeal from a decision of the Workers' Compensation Board, filed October 23, 2015, which ruled that decedent's death was not causally related to his employment and denied claimant's claim for workers' compensation death benefits.

Ross Huffer, [Huffer] served as a volunteer firefighter with the Nesconset Fire District and worked as a first responder on Wednesdays and Thursdays. On Wednesday, February 26, 2014, Hufferresponded to two calls during the day and also attended drill that evening at the firehouse. Huffer then returned home, went to bed and died in his sleep early the next morning of hypertensive and atherosclerotic heart disease.

Huffer’ widow, Kathleen Ross [Claimant], filed a claim for workers' compensation death benefits. Following a hearing, the Workers' Compensation Law Judge denied her claim, finding that there was insufficient evidence as to the nature and extent of  Huffers’ activities on February 26, 2014 to find that his death was related to his volunteer firefighter duties. The Workers' Compensation Board affirmed the decision of the Workers' Compensation Law Judge and Claimant appealed.

The Appellate Division, citing the provisions of §61.1 Volunteer Firefighters' Benefit Law, affirmed the Board’s determination, explaining that neither Claimant’s testimony nor the testimony of doctors established the duties and activities that  Huffer undertook during the two emergency calls or at drill on the day before he died.**

Claimant testified that she was unaware of the specific nature of the calls to which Huffer responded or the nature of the drill. In addition, said the court, “the record establishes that the opinion of Lester Ploss, a physician who reviewed [Huffer's] medical records and opined that [Ross’] firematic duties contributed to his death, was based upon a lack of information, as well as certain assumptions made by Ploss regarding the specific activities that [Huffer] engaged in at the emergency calls and at the drill.

Considering the lack of evidence regarding the duties and activities in which  Hufferhad been engaged, the Appellate Division held that the requirements for the applicability of “the statutory presumption under Volunteer Firefighters' Benefit Law [§61.1] was not met.”

Accordingly, the court ruled that “the Board's decision denying [Claimant’s] death benefit claim will not be disturbed.”

* N.B.As currently enacted §61 of the Volunteer Firefighters' Benefit Law is “repealed effective July 1, 2020.”

** The Appellate Division noted that “No testimony or evidence was provided concerning Ross’ “responding to two calls during the day and also attending drill that evening] by any fire department officials”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06535.htm

Affordable Care Act Outreach for State and Local Governmental Employer Community

Affordable Care Act Outreach for State and Local Governmental Employer Community 

Source: The Internal Revenue Service

REMINDER

The Affordable Care Act [ACA] Office and the Tax Exempt and Government Entities [TE/GE] Counsel will present a live webinar to address governmental entities' concerns and needs as they relate to ACA information reporting requirements on Thursday, October 20, 2016 at 2 p.m. [Eastern time].

Topics to be addressed include:

Determining Applicable Large Employer (ALE) status

Identifying full-time employees

Defining hours of service

What is Minimum Essential Coverage?

E-Filing of information returns

2016 filing season corrections and replacements

Penalties and relief

TIN solicitation

Changes to forms and instructions for Tax Year 2016

Click here to Register for this event.

N.B. IRS is not offering participants Continuing Education Credit for this event.

From the Law Blogs

From the Law Blogs - week ending October 8, 2016

[Internet links highlighted in color]

Posted by NYMUNIBLOG

NYMUNIBLOG has posted a draft revision of learning standards issued by the New York State Department of Education to replace "Common Core."

Posted on the Internet at:
http://www.nymuniblog.com/whats-name-nysed-releases-draft-revision-learning-standards-replace-common-core/

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

Supervisor’s bias against Hispanic or overweight employees supports non-selection claim

By Kathleen Kapusta, J.D.

Although a close call, a federal court in the District of Columbia found that an Hispanic employee who described herself as having “a body size which may be perceived by some as being overweight” established a fact issue as to whether Fannie Mae’s rationale for passing her over for a VP position in favor of a slender Caucasian woman was pretextual. One view of the evidence, said the court, was that the senior VP who drove the hiring process harbored biases toward Hispanic and overweight employees and selected the successful candidate not because she was more qualified but because she fit the demographic and personal appearance mold. Accordingly, the court denied summary judgment against the employee’s non-selection claims alleging racial discrimination under Section 1981 and racial and personal appearance discrimination under the D.C. Human Rights Act (Lapera v. Federal National Mortgage Association dba Fannie Mae).

The full text of Ms. Kapusta’s article is posted on the Internet at:

http://www.employmentlawdaily.com/index.php/news/supervisors-bias-against-hispanic-or-overweight-employees-supports-non-selection-claim/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WK+WorkDay%29

Other issues considered in WorkDay:

Report on advancing diversity in law enforcement released

Communications between union member and union representatives not privileged in civil lawsuit

Two-day delay in reporting sexual harassment dooms Title VII retaliation claim

 

Handwritten agreement to resign during mediation of administrative race bias charges was valid, uncoerced

N.B. No part of the above materials may be copied, photocopied, reproduced, translated, reduced to any electronic medium or machine-readable form, or retransmitted, in whole or in part, without the prior written consent of WK. Any other reproduction in any form without the prior written consent of WK is prohibited. Written consent may be obtained from WK. Please click here for more information.

Selected reports issued by the New York State Comptroller during the week ending October 5, 2016

Selected reports issued by the New York State Comptroller during the week ending October 5, 2016: Completed audits of State Departments and Agencies; Municipalities and School Districts and BOCES

Source: Office of the State Comptroller

[Internet links highlighted in color]

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued and the full text of each are posted on the Internet:

State Departments and Agencies

State Education Department (SED): Selected Aspects of the Migrant Education Program (Follow-Up) (2016-F-9)
An audit report issued in May 2015 determined that the Migrant Education Program did not meet certain program outcomes and overarching program goals. SED did not complete federally required documents in a timely manner; and a significant portion of the Migrant Education Tutorial Services faced challenges obtaining migrant student performance data. In a follow-up report, auditors found SED has made significant progress in correcting the problems identified in the initial report. Several of the strategies the program plans to implement are scheduled to begin with the 2016-2017 school year. 

State Education Department: Kidz Therapy Services, PLLC, Compliance with the Reimbursable Cost Manual (2015-S-63)
For the three fiscal years ended June 30, 2014, auditors identified $249,850 in reported costs that did not comply with the state requirements for reimbursement and recommend such costs be disallowed. These ineligible costs included $240,553 in personal service costs and $9,297 in other than personal service costs.

Department of Health (DOH): Improper Fee-for-Service Payments for Pharmacy Services Covered by Managed Care (Follow-Up) (2016-F-5)
An audit issued in January 2015 determined that, for the 27-month period of Oct. 1, 2011 through Dec. 31, 2013, Medicaid inappropriately paid 29,289 fee-for-services pharmacy claims totaling $978,251 on behalf of 18,010 Medicaid recipients whose pharmacy benefits were covered by managed care. In a follow-up report, auditors determined DOH has made some progress in addressing the problems identified in the initial audit report. However, further actions are still needed.

Department of Health: Improper Payments for Controlled Substances That Exceed Allowed Dispensing Limits (Follow-Up) (2016-F-6)
An audit report issued in February 2015, determined that, for the period Jan. 1, 2009 through Dec. 31, 2013, Medicaid overpaid pharmacies $1,183,601 for 13,705 fee-for-service claims in which quantities of controlled substances exceeded the supply limits allowed. Auditors further identified 3,323 managed care claims for controlled substances in which the quantities dispensed exceeded the limits set by law. In a follow-up report, auditors found DOH has made progress in addressing the problems identified in the initial audit report. This included implementing controls to prevent the payment of pharmacy claims for quantities of controlled substances that exceeded supply limits. These actions resulted in the denial of approximately $3.3 million in claims through July 2016.

Department of Labor (DOL): Examination of Unemployment Insurance (UI) Benefits 2015 Year End Report (2016-BSE4-01)
Auditors identified 11,306 UI overpayments totaling more than $3.6 million. This includes $93,760 in current payment requests stopped, $280,276 in future payments that would have been made over the life of the claim and $3,311,848 in erroneous payments made. Based on the errors identified, DOL assessed $471,458 in monetary penalties to 344 claimants. Auditors also identified 588 underpayments totaling $105,744. DOL has recovered $253,968 in forfeited UI benefits from claimants who made false statements or representations to obtain benefits they were not eligible to receive and $488,138 from New York state employees who owed DOL for UI overpayments made in prior years.

Municipalities

Altona Volunteer Fire Company, Inc. – Financial Operations (Clinton County)
Company officials did not establish adequate controls or provide sufficient oversight of financial activities. Consequently, the company’s accounting records were not properly maintained, bank reconciliations were not prepared and crucial financial reports were inaccurate or not prepared and submitted to company officials or to the comptroller’s office.

City of Gloversville – Parking Violation Operations (Fulton County)
City officials have not established sufficient procedures for pursuing the collection of unpaid parking violations or set a benchmark for collection rates. The city collected $110,000 in revenues for 4,367 violations from January 2011 through April 2016, which represents 61 percent of total parking violations. The city could have collected an additional 1,757 parking violations totaling approximately $44,000 if it collected fines for 85 percent of the parking violation tickets issued. If the city collects the additional 24 percent of parking violations that are still outstanding, dating back to January 2011, the city could receive approximately $83,000 in additional revenue.

City of Jamestown – Financial Condition (Chautauqua County)
The city incurred operating deficits in fiscal years 2012 through 2015 totaling $2.8 million. As a result, general fund balance decreased by approximately 58 percent, from $4.8 million to $2 million. The city’s financial condition will continue to decline during 2016 because the adopted budget is again not structurally balanced. The city will likely incur an operating deficit of at least $400,000 unless significant and immediate spending changes are implemented.

Town of Warwarsing – Napanoch Water District Rents and Assessments (Ulster County)
The board needs to improve its internal controls over water rents to ensure that they are accurately billed and collected and assessments are properly levied. Auditors found that internal controls over water rents and assessments were inadequate and oversight is lacking. Because town officials were uncertain of district boundaries, assessments were not levied on all properties in the district. As a result, assessments charged to district property owners were higher than necessary.

School Districts and BOCES

Frankfort-Schuyler Central School District – Financial Management (Herkimer County)
District officials did not adopt budgets based on historical or known trends but instead overestimated expenditures by almost $2.7 million from 2011-12 through 2014-15. The district appropriated $2.4 million in fund balance as a financing source in the annual budgets for 2012-13 through 2015-16. However, the district’s budgeting practices resulted in operating surpluses in three of these years and will also likely end 2015-16 with an operating surplus. As a result, none of the appropriated fund balance will be needed to finance operations. The district also retained an average of approximately $342,000 of unrestricted funds in the debt service fund, $1.1 million in the agency fund’s group health insurance account and $429,000 in excessive reserves over these years. When adding back unused appropriated fund balance, excess money retained in the debt service, agency funds and reserves, the district’s recalculated unrestricted fund balance exceeded the statutory limit, averaging more than 18 percent of the ensuing year’s appropriations, or more than four times the statutory limit.

Hammondsport Central School District – Nonresident Tuition (Steuben County)
District officials should improve their billing process for nonresident students by determining actual attendance dates. Auditors reviewed 10 tuition invoices for seven nonresident students placed at the district totaling $219,941 from the 2012-13 through 2014-15 years. While district officials effectively identified nonresident students who were placed at the district, the treasurer ,a href="used incorrect attendance dates when calculating bills for three students. As a result, two home districts were underbilled by $5,078 and one home district was overbilled by $638.

Putnam Northern Westchester Board of Cooperative Educational Services (BOCES) – Information Technology and Claims Auditing (2016M-205)
BOCES officials need to improve controls to adequately secure and protect IT systems. The rooms housing the servers and IT infrastructure did not have safeguards to track access and protect IT assets, and BOCES officials have not developed a disaster recovery plan to guide action in the event of a disaster. Additionally, the board appointed a claims auditor but needs to improve its oversight of the claims auditing function. There was no evidence that 33 claims totaling $100,873 were checked to ensure they did not exceed their related purchase orders or that 13 claims totaling $42,526 agreed with approval contracts or agreements.

Raquette Lake Union Free School District – Monitoring Financial Condition (Hamilton County)
The board did not ensure that adequate accounting records and reports were maintained and did not effectively monitor the district’s financial operations. The clerk did not maintain accurate and complete accounting records and the treasurer did not provide the board with adequate periodic reports. Furthermore, auditors recalculated the district’s assets, liabilities and fund balance and found unrestricted fund balance deficits for the 2013-14 and 2014-15 fiscal years and budgetary deficits for the 2013-14, 2014-15 and 2015-16 fiscal years. Additionally, the district incurred a cash flow shortage that precluded employees from cashing their paychecks from July 2013 to September 2013.

Western Suffolk Board of Cooperative Educational Services – Budget Transfers and Confirming Purchase Orders (2016M-218)
The board did not always enforce its policies and procedures. Auditors reviewed 30 budget transfers totaling $9.2 million and found that 24 totaling $7.8 million were not presented to the board for approval. The board approved the remaining six budget transfers totaling $1.4 million between 18 and 70 days after the transfer was processed. The board’s ability to monitor the budget and ensure that account codes are not overspent is compromised when it does not approve budget transfers.

An employer is not liable for an employee's discriminatory acts targeting a co-worker unless the employer encouraged, condoned or approved such misconduct

An employer is not liable for an employee's discriminatory acts targeting a co-worker unless the employer encouraged, condoned or approved such misconduct

Figueroa v New York State Div. of Human Rights and Buffalo City School Dist., 2016 NY Slip Op 06319, Appellate Division, Fourth Department

Schwallie v New York State Div. of Human Rights and Buffalo City School Dist., 2016 NY Slip Op 06322, Appellate Division, Fourth Department
 

At the time of the alleged unlawful acts of employment discrimination both Rachel Figueroa and Ashleigh Schwallie were employed by the Buffalo City School District [District] and both worked at the same school.

They both alleged that they had been victims sexual harassment by a coworker. They subsequently filed separate complaints against the District alleging sexual harassment and retaliation with the New York State Division of Human Rights [Division]. The Division dismissed their respective complaints.

Then both Figueroa and Schwallie commenced separate proceedings pursuant to Executive Law §298* seeking court orders annulling the relevant decisions of the Division dismissing their complaints of sexual harassment and retaliation. The Appellate Division dismissed both appeals “on the merits.”

The court said it agreed with the District that substantial evidence supported the determinations of the Division that the District was not liable for the coworker's discriminatory conduct. The Appellate Division explained that "[u]nder [New York State’s] Human Rights Law, an employer cannot be held liable for an employee's discriminatory act[s] unless the employer became a party to [them] by encouraging, condoning, or approving [them]."

Neither Figueroa nor Schwallie had established that the District became a party to the alleged sexual harassment by a co-worker. Indeed, said the court, “the record establishes that [the District] reasonably investigated complaints of discriminatory conduct and took corrective action.”

The Appellate Division also found that substantial evidence supported the Division’s determinations that neither Figueroa nor Schwallie were subjected to retaliation by the District for complaining about alleged acts of unlawful discrimination by the co-worker. While both had established  prima facie cases of retaliation, the court found that the District "came forward with legitimate, independent, and nondiscriminatory reasons to support its employment decision[s]" and neither Figueroa not Schwallie had shown that that those reasons were pretextual,

With respect to alleged acts of alleged retaliation for filing a human rights complaint, where the employer has presented a lawful reason or explanation to rebut a charging party's prima facie evidence of retaliation, the burden shifts to the charging party to present facts to rebut each reason or explanation advanced by the employer in it defense against the charge of retaliation.

The Appellate Division unanimously confirmed the Division’s decisions and dismissed both petitions.

* §298 of the Executive Law provides for judicial review and enforcement of determinations by the New York State Division of Human Rights and provides, in pertinent part that “Any complainant, respondent or other person aggrieved by an order of the commissioner which is an order after public hearing … dismissing a complaint, … may obtain judicial review thereof ….”

The Figueroa decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06319.htm.

The Schwallie decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06322.htm.