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Reinstatement following separation from service while on ?workers? compensation leave? pursuant to §71 of the Civil Service Law

Reinstatement following separation from service while on ?workers? compensation leave? pursuant to §71 of the Civil Service Law

Matter of Richard Lazzari v Town of Eastchester, 2009 NY Slip Op 04239, Decided on May 26, 2009, Appellate Division, Second Department

§71 of the Civil Service Law provides for the granting of ?workers? compensation leave? to an employee of the State or a political subdivision of the State who is disabled as the result of a work-connected injury or disease where such injury or disease does not permanently incapacitate him or her for the performance of the duties of his or her position.* If the employee is separated from service after being on §71 for one year** or longer, of for disability.

Where an employee has been terminated while on §71 leave, he or she may Such employee may, within one year after the termination of such disability, make application to the Civil Service Department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected the Civil Service Department or commission. If the medical officer certifies that the individual is physically and mentally fit to perform the duties of his or her former position, he or she shall be reinstated to his or her former position, if vacant, or to a vacancy in a similar position or a position in a lower grade in the same occupational field, or to a vacant position for which he or she was eligible for transfer. If no appropriate vacancy is available, the name

of such person is placed upon a preferred list and he or she shall be eligible for reinstatement from such preferred list for a period of four years.

Richard Lazzari, who apparently has been separated from his position while on leave of absence pursuant to §71 of the Civil Service Law, sued the Town of Eastchester, seeking reinstatement to his former position. Although Supreme Court granted his petition and directed Eastchester to reinstate him to his former position, the Appellate Division vacated the order, without prejudice.

The Appellate Division said that a necessary party, the Westchester County Department of Human Resources, had not been named as a respondent in this proceeding by Lazzari and Supreme Court would be required to make ?a new determination? in consideration of any ?defenses? the County Department of Human Resources may raise concerning the matter.

It is not clear from the decision whether Lazzari neglected to apply to the County Department for a medical examination as a condition precedent to his being declared qualified to return to duty or, if he do so apply, was not certified by the designated medical officer as fit to perform the duties of his former position.

* An employee who is unable to work because of an injury or disease that is not work-related may be entitled to leave pursuant to §72 of the Civil Service Law. §73 of the Civil Service Law controls with respect to the reinstatement of an individual who is separated from service while on leave of absence pursuant to §72.

** An employee is entitled to at least two-years of leave pursuant to §71 if he or she suffers a non-permanent disability as the result of an assault sustained in the course of his or her employment.

The text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_04239.htm

Full post as published by New York Public Personnel Law on June 02, 2009 (boomark / email).