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Failing to continue GML §207-c benefits during the pendency of a challenge to a medical determination that the individual is able to return to work

Failing to continue GML §207-c benefits during the pendency of a challenge to a medical determination that the individual is able to return to work
Matter of Westchester County Correction Officers Benevolent Assn., Inc. v County of Westchester, 2010 NY Slip Op 02572, Decided on March 23, 2010, Appellate Division, Second Department

The Westchester County correction officers [COs] sustaining an injury in the line of duty and unable to perform their duties as a result of such an injury are eligible General Municipal Law §207-c benefits.

The appointing authority may have a CO receiving §207-c benefits periodically examined to determine whether the CO is able to return to work. Westchester COs were all evaluated by the County's independent medical examiner (IME). In the event the IME found that the CO was able to return to work the CO could contest that determination in accordance with the collective bargaining agreement. The agreement provided the CO the option of either the IME?s reviewed by a medical consultant or by a hearing officer.

In the event a CO elected to have the IME?s determination reviewed by a medical consultant or a hearing officer, Westchester placed the COs on so-called "job pending" status until a final determination was rendered either by the hearing officer or medical consultant.

COs placed on "job pending" status were to be paid only if they had accrued time, such as vacation or sick time, which was deducted by the County. Rather than be continued in pay status pursuant to §207-c, a CO on "job pending" status was required to use his or her accrued vacation or sick time if he or she wished to be paid during the pendency of their challenge to the IME's determination.*

The union challenged this procedure, contenting that it violated the terms and conditions of the collective bargaining agreement which, in pertinent part, provided: "The [Westchester] Department [of Corrections] agrees to retain all correction officers subject to such medical disputes . . . on full pay, line of duty status until such date as a decision is rendered by the hearing officer, or medical consultant. The parties agree, however, that if the Department prevails on the issue, the correction officer shall return to work. Should an employee fail to abide by the hearing officer or medical consulting service's determination . . . by failing to appear for . . . duty, the employee will be removed from the payroll."

The Appellate Division said that ?This provision clearly and unambiguously provides for the retention of the officers under the circumstances at issue here ?on full pay, line of duty status? while their challenges were pending. It does not contemplate the reclassification of officers who challenge the findings of medical examiners while those challenges are pending, nor does it authorize the County to deduct accrued time the officers may have, if any, during that time, and, once such accrued time is exhausted, to not pay the officers at all.?

Further, said the court, in Matter of Park v Kapica, 8 NY3d 302, the Court of Appeals ruled that "[a] municipality is not permitted to recoup section 207-c payments where ? the officer avails himself [or herself] of due process protections by challenging the medical examiner's determination because such a challenge cannot be equated with a refusal to return to duty."

The Appellate Division concluded that the language of the CBA clearly provided that the COs were to continue "on full pay, line of duty status" pending a final determination of their challenge to the IMF?s decision.

* NYPPL Comments: In a situation that might be termed ?military leave pending,? the State Comptroller advised that a municipality may not require an individual to exhaust his or her accrued leave credits as a condition precedent to being placed on leave with pay in connection with ordered military service as provided by §§242 and 243 of the Military Law [1955 Op St Comp 7727].

Full post as published by New York Public Personnel Law on April 06, 2010 (boomark / email).