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

July 22, 2019

Appointing authority rejects hearing officer's recommendation to continue disability benefits being provided police officer pursuant to General Municipal Law §207-c


The petitioner [Police Officer] in this CPLR Article 78 action suffered a job-related injury and was granted benefits pursuant to General Municipal Law §207-c* by the appointing authority Subsequently Police Officer  returned to work on a light-duty assignment and later was examined by a physician on behalf of the appointing authority. The physician reported that Police Officer was capable of returning to work on full duty as a police officer without restrictions.

The appointing authority terminated the Police Officer's §207-c benefits and directed that "he return to full duty, without restrictions." In accordance with the relevant provisions set out in a collective bargaining agreement [CBA], the Police Office requested a hearing and ultimately the designated hearing officer recommended that Police Officer continue to be provided with GML §207-c benefits. Notwithstanding the hearing officer's recommendation, the appointing authority issued a final determination denying the Police Officer's application for §207-c benefits finding that "based on the entire record" Police Officer was capable of performing his full duties as a police officer. Upon being notified that his light-duty assignment was terminated and being directed to return to work full time, without restrictions, Police Officer commenced this CPLR Article 78 proceeding, which Supreme Court transferred to the Appellate Division for its consideration.

The Appellate Division, citing Matter of Campo v City of Mount Vernon, 156 AD3d 694, explained that "[j]udicial review of an administrative determination made after a hearing at which evidence is taken pursuant to direction of law is limited to a consideration of whether that determination was supported by substantial evidence upon the whole record." Here, said the court, the hearing procedures were negotiated by the appointing authority and the Police Officer's union and memorialized in a CBA. The CBA provided that hearing officer was to issue findings of fact and make a recommendation on the questions certified to him. The appointing authority, however, retained full power and authority to render the final determination on the questions.

Noting that the hearing officer's findings are entitled to considerable weight, the Appellate Division explained that such findings "are not conclusive and may be overruled by the administrative authority, provided that the final determination is supported by substantial evidence."

Here, said the court, there was conflicting medical evidence and "it was for the administrative agency to choose between the conflicting opinions, and the courts are not free to reject the choice made by the administrative agency where room for choice exists." In words of the Appellate Division, [t]he testimony and opinion of the physician who examined the [Police Officer] on behalf of the [appointing authority] was rational and fact-based and, since a reasonable mind could accept that testimony and opinion, the determination of the [appointing authority] is supported by substantial evidence."  

The Appellate Division confirmed the appointing authority's determination terminating Police Officer's  light-duty assignment and directing him to return to work full time and dismissed the Police Officer's petition "on the merits, with costs."

* GML 207-c provides for the payment  of the salary, wages, medical and hospital expenses of   law enforcement personnel suffering injuries or illness incurred in the performance  of their law enforcement  duties. GML 207-a provides similar benefits to firefighting personnel suffering injuries of illness incurred in the performance of their firefighting duties.

The decision is posted on the Internet at:
_________

Disability Benefits for fire, police and other public sector personnel - A handbook addressing retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html

Workers' Compensation Board rejected a claimant's application for review of a Workers' Compensation Law Judge's decision because it was not filled out completely


The Workers' Compensation Board ruled that a Claimant failed to comply with the requirements of 12 NYCRR 300.13 (b) and denied review of a decision by the Workers' Compensation Law Judge. The Board found that the application for Board review was defective because it was not filled out completely and, as a result, denied Claimant's application.

Claimant appealed, contending that the Board abused its discretion in denying her application for Board review based upon her failure to comply with the rules governing the content of such applications that require the application to be filled out completely. The Appellate Division disagreed and sustained the Board's determination.

The court noting that "the Board 'may adopt reasonable rules consistent with and supplemental to the provisions of [the Workers' Compensation Law],' and the Chair of the Board 'may make reasonable regulations consistent with the provisions of [the Workers' Compensation Law],''' explained that where, as here, the Board's regulations provide that "an application to the Board for administrative review of a decision by a [WCLJ] shall be in the format as prescribed by the Chair [of the Board]" and "must be filled out completely."

Here Claimant was represented by counsel and filed her Form RB-89 application for Board review. Although question number 13 on that application requested that claimant provide the "[h]earing dates, [t]ranscripts, [d]ocuments, [e]xhibits, and other evidence" that she would rely upon in her administrative appeal and advised to "see [the] instructions for details," it is not disputed that Claimant's application failed to provide the requested information by leaving the box for question number 13 blank.

As the Board explains in its guidance document on this issue, the "RB-89 [form] is the application for review itself, and [it] is not merely a coversheet." By requiring an applicant to completely fill out the application for Board review, "the 'completeness doctrine' assists the responding party in identifying the exact issues, grounds and evidence used in support of the application in determining the issues and crafting a timely and effective rebuttal. Having a complete application . . . also assists the Board in providing timely and effective review of the application . . . as it eliminates confusion over which evidence is involved in the application and which issues are preserved for appeal."

Completion of an application for Board review, opined the Appellate Division, means that "each section or item of [the application or rebuttal] is completed in its entirety pursuant to the instructions for each form" and that a form is not filled out completely "when a party responds to sections or items on the form merely by referring to the attached legal brief or other documentation without further explanation." Accordingly, said the Appellate Division citing 12 NYCRR 300.13 [b] [4] [i], the Board may deny an application for review where the party seeking review, other than a claimant who is not represented by counsel, fails to fill out completely the application or otherwise fails to "comply with prescribed formatting, completion and service submission requirements" [Emphasis supplied].

The Appellate Division said that in its view, "the Board's format requirements for applications for Board review submitted by represented claimants are reasonable given the reasons identified by the Board and were promulgated pursuant to its statutory authority and "broad regulatory powers" and sustained the Board's decision that Claimant's application was defective because it was not filled out completely.

The decision is posted on the Internet at:

July 19, 2019

Workers' Compensation Law provides that a claimant who knowingly makes a false statement of a material fact will lose eligibility for benefits


Workers' Compensation Law [WCL] §114-a (1) provides that a claimant who "knowingly makes a false statement or representation as to a material fact ... shall be disqualified from receiving any compensation directly attributable to such false statement or representation."* Further, a determination by the Board as to whether a claimant violated WCL §114-a will not be disturbed if supported by substantial evidence. 

A firefighter [Claimant] sustained an established injury to his neck in the course of his employment as a firefighter, as well as a prior established injury to his back and was awarded Workers' Compensation Benefits.

After reviewing the testimony and surveillance video** of Claimant, a WCL Judge concluded that Claimant's activities did not rise to the level of a WCL §114-a violation. The Workers' Compensation Board, with one panel member dissenting,*** however, concluded otherwise, holding that Claimant had violated WCL §114-a, imposed a mandatory penalty and permanently disqualified him from receiving future wage replacement benefits. The full Board denied Claimant's application for full Board review based on Claimant's failure to comply with the governing regulation set out in 12 NYCRR 300.13. Claimant then appealed both Board decisions.

The Appellate Division said that "... feigning the extent of disability and pretending to be unable to perform most tasks and body movements for the purpose of influencing any determination regarding workers' compensation benefits constitute false representations of material facts within the meaning of Workers' Compensation Law §114-a (1)" and such misrepresentation "need to affect the dollar value of an award to be material."

As the Board found, the video depicts Claimant performing many tasks — with no sign of impairment or difficulty — that are inconsistent with or, in some cases, "in direct contrast to" his representations to medical providers and evaluators, and contradicted his purported severe functional limitations and limited performance during a functional capacity evaluation [FCE].

Concluding that the Board's finding that Claimant had made false representations regarding material facts is supported by substantial evidence, the Appellate Division declined to disturbed the Board's determination. In the words of the court, "the Board adequately explained its reason for disqualifying [Claimant] from receiving future benefits, based upon its finding as to the "nature and extent of the misrepresentation," which it found to be "egregious."

Finally, the Appellate Division, citing Matter of Losurdo v Asbestos Free, 1 NY3d at 267,  said considering Claimant's substantial, repeated misrepresentations of his functional abilities and condition, it was not persuaded by Claimant's argument that imposing the discretionary penalty of permanent disqualification for workers' compensation benefits was disproportionate to his misrepresentations.

* See Losurdo v Asbestos Free, 1 NY2d 258.

** A surveillance video of Claimant taken on three days in November 2016 reflects that "Claimant was observed getting in and out of his truck, driving and walking around stores and his property without any apparent difficulty, as well as carrying floor boards into and out of a store and repeatedly bending over at the waist to inspect merchandise or to remove items from low store shelves. Further Claimant was seen placing objects, including floor boards and boxes, on the floor, bending over and picking up a box from the floor, carrying a box with one hand, twice pulling down an overhead garage door with one hand, bending and reaching for objects and vigorously sweeping his garage."

*** The dissenting panel member agreed that Claimant had violated Workers' Compensation Law §114-a but would not have imposed the discretionary penalty of permanent disqualification. The Appellate Division noted that "[a]lthough full Board review would have been mandatory due to the dissent of one panel member, such review required a proper, timely application, including compliance with the completion requirements for RB-89.2 applications (see 12 NYCRR 300.13 [b] [4]). Moreover, direct judicial review of the Board panel's decision is also permitted (see Workers' Compensation Law §23) and, indeed, has herein provided review of all issues that could have been considered by the full Board." 

The decision is posted on the Internet at:


CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
Copyright 2009-2024 - Public Employment Law Press. Email: nyppl@nycap.rr.com.