Home -> Law Blog Directory -> Labor & Employment Law Blogs -> New York Public Personnel Law

Labor & Employment Law

: New York Public Personnel Law

Employer's GML Section 207-a disability determination not controlled by retirement system?s approving employee?s disability retirement application

Employer's GML Section 207-a disability determination not controlled by retirement system?s approving employee?s disability retirement application
Matter of Solano v City of Mount Vernon, 2007 NY Slip Op 52573(U), Supreme Court, Westchester County [Not published in the Official Reports], affirmed, 49 A.D.3d 762

Dennis M. Solano, a firefighter with the City of Mount Vernon Fire Department, was injured at work and commenced receiving benefits pursuant to §207a-(1) of the General Municipal Law.

He was subsequently examined by a Department physician and as a result Solano was directed to undergo another MRI in connection with a review of his ?disability status.? A few weeks later Solano filed an application for Performance of Duty Disability Retirement with the New York State Employees? Retirement System pursuant to §363-c of the Retirement and Social Security Law. The Retirement System approved his application.

In contrast, Solano?s application for GML § 207a-(2) benefits was rejected by the Department based on a finding by its medical expert that there was no objective evidence of an ongoing disability related to Solano?s injury and that he was capable of performing his duties as a firefighter. If the City had approved his application, Mount Vernon would have been required to supplement Solano?s disability retirement benefit by an amount equal to the difference between the amounts received as a retirement allowance or pension and the amount of his regular salary or wages until his mandatory age of retirement.

Solano sued, contending that in view of the New York State Retirement System?s approving his application for a performance of duty disability retirement pursuant to Section 363-c, the City ?lacked the statutory authority to reassess his disability or the issue of whether his current injuries were the product of a job related injury. Supreme Court dismissed his petition and Solano appealed.

The Appellate Division affirmed the Supreme Court?s decision, noting that Solano, in his brief, conceded that notwithstanding the retirement disability allowance determination made by the State Comptroller, the City is entitled to make a separate determination as to whether he was permanently disabled as a result of an injury incurred in the performance of his duties as a firefighter, citing Cook v City of Utica, 88 NY2d 833.

Further, said the court, Solano?s argument that following his receipt of benefits pursuant to General Municipal Law § 207-a (1), the City's review is limited solely to the question of whether he was disqualified from the receipt of benefits due to other gainful employment is incorrect. Rather, said the Appellate Division, ?the City's determination pursuant to General Municipal Law § 207-a (2) necessarily may include both the question of causal relationship and permanent disability.?

The full text of the Supreme Court?s decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2007/2007_52573.htm

The full test of the Appellate Division?s decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2008/2008_02604.htm

Full post as published by New York Public Personnel Law on November 05, 2008 (boomark / email).