Olsen v Dormer

[*1] Olsen v Dormer 2006 NY Slip Op 52143(U) [13 Misc 3d 1236(A)] Decided on November 15, 2006 Supreme Court, Suffolk County Mayer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 15, 2006
Supreme Court, Suffolk County

Steven B. Olsen, Petitioner, For an Order Pursuant to Article 78 of the Civil Practice Law and Rules,

against

Richard Dormer, AS COMMISSIONER OF SUFFOLK COUNTY POLICE DEPARTMENT, and the COUNTY OF SUFFOLK, Respondents



14107-06



Certilman Balin Adler & Hyman, LLP

Attorneys for Petitioner 90 Merrick Avenue, 9th Floor

East Meadow, New York 11554

Christine Malafi, Esq.

Suffolk County Attorney

Attorney for Respondents

100 Veterans Memorial Highway

Hauppauge, New York 11788

Peter H. Mayer, J.

This is a proceeding pursuant to Article78 to review a determination of the respondents Suffolk County Police Department and the Commissioner of the Suffolk County Police Department, Richard Dormer, dated May 8, 2006 which terminated the petitioner from his employment as a Suffolk County Police Lieutenant pursuant to Section 71 of the Civil Service Law.

The facts are as follows: Lieutenant Olsen was injured while engaging in an exercise at the Suffolk County Police Academy pursuant to his official police duties on February 14, 2001. He worked intermittently from February until October 9, 2002 when he left work on what is known in Suffolk County Police parlance as "401" status or "line of duty injury" predicated on the occurrence of February 14, 2001. He was paid full salary and benefits while out on such status pursuant to his collective bargaining agreement. This agreement is a contract between the County of Suffolk and Superior Officers Association, of which Lt. Olsen is a member. On March 17, 2004 Lt. Olsen had a medical examination conducted by an independent medical consulting service in order to determine whether he was physically and/or mentally capable of performing his duties as a police officer either on a limited or full duty basis. This procedure took place pursuant to Paragraph 5 of the collective bargaining agreement which allows the officer to elect to have the issue resolved by either a due process hearing or an examination by the medical consulting service after the police department raises the question of whether the line of duty injury has resolved so that the officer is capable of working.

By letter dated April 5, 2004, Sgt. Robert Ward of the Medical Evaluation Unit of the Suffolk County Police Department (hereinafter, the Department) notified Lt. Olsen that, pursuant to the findings of the independent medical consulting service (hereinafter Medscope) he had been found fit for limited duty. The restrictions on the type of activities Lt. Olsen could participate in were listed in the letter as well as the report of examination of Dr. Craig Rosenberg of Medscope certifying the findings. The collective bargaining agreement requires the Department to assign officers limited to restricted duty to assignments consistent with the restrictions.

Notwithstanding these findings, petitioner Olsen declined to return in a limited duty status. Petitioner's leave status, pursuant to the contract, then changed from line of duty injured (401) to non-line of duty sick leave (301). No taxes are taken from any paycheck that is tendered to a line of duty injured officer. Once an officer goes back to work or stays out on 301 sick leave full taxes are withdrawn from the check, as in the instant case.

On March 1, 2006 the petitioner sent a memo to Sgt. Ward relating his version of certain prior conversations wherein he sought to return to work. The March 1, 2006 memo, however, is the first written communication from the petitioner to the Department seeking a return to work on a limited duty basis pursuant to the Medscope decision of April 5, 2004, nearly two years earlier. On May 8, 2006, the Department sent the petitioner a notification that he was being discharged pursuant [*2]to Civil Service Law §71 effective in 90 days.

Petitioner, among other things, seeks an order pursuant to CPLR §7803(3) declaring that the termination of petitioner on August 8, 2006 was made in violation of lawful procedure, was effected by errors of law, was not based upon foundation in fact, was arbitrary and capricious, and an abuse of discretion.

More specifically, petitioner alleges that, notwithstanding the findings of Medscope, he never waived any benefits that he is entitled to under General Municipal Law §207-c (hereinafter GML). He further states that his election to work on a limited duty basis pursuant to the parameters of the Medscope findings of March of 2004 should still be afforded him despite his refusal to work in such capacity for at least one year and 4 months, from April 5, 2004 to August 2005. The Department takes the position that once the petitioner refused the opportunity to work limited duty in April of 2004 and his status changed to "301" from"401" the Department was not bound to keep this option open and that by doing nothing for almost one year and five months, he waived any benefits he might have had. They further argue that once an officer makes his election under the collective bargaining agreement to use the independent medical consultant as opposed to a due process hearing, he is bound by the terms of the findings of Medscope pursuant to contract, and both the officer and the Department waive all other rights under GML §207-c.

General Municipal Law §207-c provides that a police officer who suffers a line of duty injury that precludes him from performing his duties as a police officer shall be entitled to his full salary and full medical care until such time as the disability arising therefrom ceases. From time to time the Department may conduct inspections and the failure of the officer to allow such inspections will be considered a waiver of his rights for medical care and wages. Further, the Department shall not be liable for such wages and medical care after such date that the Department or physician shall certify that such injured policeman has recovered and is physically able to perform his duties.

Section 207-c(3) states that if a policeman is unable to perform the regular duties of a policeman but is capable of performing specified types of light duty, payment of the full amount of wages shall be discontinued with respect to such policeman if he shall refuse to perform such light police duty if the same is available and is offered to him.

In an effort to resolve disputes concerning causation as well as continuing status of policeman with line of duty injuries, the Department and the Superior Officers Association entered into a collective bargaining agreement that specifically outlines procedures to be employed in cases that might otherwise trigger rights and responsibilities under GML§207-c. The contract provides in pertinent part that:



Where the Department believes that a Superior Officer who has been out of work as a result of a prior line of duty injury or illness (mental or physical) is capable of both physically and/or mentally performing either temporary limited duties or full duties as set forth above, the Superior Officer may [*3]elect to have the dispute resolved at a due process hearing or the medical consulting service and shall be final and binding on the Department and Superior Officer. (emphasis supplied)

Further, paragraph 6 provides that upon the election of the options described in paragraph 5 the Superior Officer must waive his right to appeal any adverse determination, as well as "any other right as may be granted by General Municipal Law §207-c" (emphasis supplied). The Court notes that the Department does not dispute that the petitioner's injury in February of 2001 was considered a line of duty injury and that his continued absence from October 9, 2002 to the March 23, 2004 was line of duty based on "401" as per the contract. The petitioner was certified to return to work on April 5, 2004, albeit in a limited capacity, after having been out on line of duty injury status from October 9, 2002, or approximately 4 days short of one year and 7 months. He then remained out until formally requesting reinstatement in a limited duty capacity on March 1, 2006, 35 days short of 2 years since he was certified as being capable of performing. Therefore, at the time of the May 8, 2006 letter of discharge, the petitioner was absent from work for 3 years and 7 months.

The petitioner contends that he never waived his 207-c rights after the findings of Medscope in March of 2004, and that he was never advised that his 207-c status changed after going from "401" line of duty to "301" non-line of duty. Because of this, the petitioner contends that disallowing his request to work limited duty in either August of 2005 or March of 2006 pursuant to the findings of Medscope in March of 2004 violates his rights and that his subsequent termination without further hearing is arbitrary, capricious, and an abuse of discretion. Petitioner's contention is that because his 207-c status continued after the Medscope findings, he maintained an indefinite right to return to work in a limited capacity at a time and under the circumstances that he chose. Neither this record, GML §207-c , the contract, or case law persuade the Court that the petitioner maintained an indefinite right to return to work in limited duty capacity.

Further, the contract clearly states in paragraph 6, which is directly related to GML §207-c dispute resolution, that "Upon election of the options described in para. 3, 4, or 5, the Superior Officer must waive his right to appeal any adverse determination, as well as any other right as may be granted by GML 207-c " (emphasis supplied). By choosing the option of Medscope in ¶5, and agreeing to be bound by the findings, the petitioner waived his GML §207-c rights. By refusing to return to work in a limited duty capacity in April 2004, he violated GML §207-c-3.

The provisions in the contract that allow the officer to elect a due process hearing or the evaluation of Medscope after a §207-c dispute has arisen, comports with procedural due process as GML §207-c benefits "are a property interest that may not be terminated without procedural due process" (Stewart v County of Albany, 300 AD2d 984, 750 NYS2d 912 [3d Dept 2002], citing, Gamma v Bloom, 274 AD2d 14, 711 NYS2d 464 [2d Dept 2000]).

The Department discharged the petitioner pursuant to Civil Service Law Section 71. Said section is titled "Reinstatement after separation for disability and provides in pertinent part as follows: [*4]

Where an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the workmen's compensation law, he or she shall be entitled to a leave of absence for at least one year.... Such employee may, within one year after 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 for that purpose by such department or commission. If, upon such examination, such medical officer shall certify that such person 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...

In the instant matter, the petitioner was absent from work for a period of one year, five months and fourteen days, from October 9, 2002 until March 23, 2004, predicated upon a disability incurred while performing his police duties, when his status changed pursuant to the Medscope findings.

In Stewart v County of Albany, supra , a correction officer was terminated pursuant §71 of the Civil Service Law for being absent from work for more than one year while he was receiving GML §207-c benefits for a work related injury. After reviewing the legislative history of Section 71, the court found that it was clearly within the Sheriff's authority to avail himself of the termination procedures therein outlined to remove a disabled correction officer even one receiving GML §207-c benefits from the County payroll. Therefore, even the continued enjoyment of §207-c benefits is not dispositive of the Department's right to utilize the termination procedures of Section 71. As in Stewart, utilizing these procedures advances the Department's interest in the productive and economically efficient operation of its police force (see, Allen v Howe, 84 NY2d 665, 621 NYS2d 287 [1994]). Thus, whether §207-c benefits continued for the petitioner through the date of his termination letter or whether there was a waiver has no effect on the Department's reliance on Section 71's termination procedures.

Petitioner's first documented request for return to work was March 1, 2006. The request by the petitioner was to work in a limited duty capacity consistent with the limitations noted on the Medscope report of April 5, 2004. Thus, there is no evidence that the petitioner declared his line of duty injury resolved so as to be capable of restoration to full duties. Rather, petitioner argues that he was not "separated from the service" under Section 71 and that he did not sustain a "disability resulting from a injury or disease as defined by the Workmen's Compensation Law." In support of his argument, the petitioner cites Balcerak v County of Nassau, 94 NY2d 253, 701 NYS2d 700 [1999].

In Balcerak, the Court held that a determination by a Worker's Compensation Board that an injury is work-related does not, by operation of collateral estoppel, automatically entitle an injured correction officer to GML §207-c benefits. The Court found that the two statutory schemes do not necessarily examine the same issues in the same way. GML §207-c defines injuries as "injured in the performance of his duties" in order to further the purpose of compensating certain municipal employees for injuries incurred in the performance of special work related to heightened risks and [*5]duties (Balcerak, supra , citing Senate Memo in Support of GML §207-c at 458). An injury under the Workmen's Compensation Law means "accidental injuries arising out of and in the course of employment" (see, Workmen's Comp. Law §§ 2,10).

This statute is the State's comprehensive social program, enacted to provide all injured employees with some compensation (see, Balcerak, supra ; see also, Practice Commentaries, McKinney's Cons. Laws, NY Book 64, WCL §1). There can be injuries, therefore, that qualify for Workmen's Compensation purposes, but not for §207-c purposes.

The instant matter does not involve matters of collateral estoppel. Indeed, the Balcerak court stated that the two statutes are constructed in such a way that would lead to the conclusion that eligibility determinations for these distinct benefits should be resolved on their own merits (Cook v City of Utica, 88 NY2d 833, 644 NYS2d 479 [1996]). The Department and the officer agree that the injury that occurred in February 2001 was incurred while Lt. Olsen was performing his duties as a police officer. It was proper for the Department to determine that the injury satisfied §207-c standards and Workmen's Comp. Law §§ 2, 10 standards. An injury incurred while actually performing the duties of a police lieutenant, as is the case here, is a §207-c injury as well as an injury "arising out of and in the course of employment."

The petitioner was separated from service for purposes of Section 71 from October 9, 2002, until his request for reinstatement in a limited capacity on March 1, 2006, a period of almost 3 years 5 months. It does not matter that he was using sick time or accrued vacation (see, Stewart v County of Albany, 300 AD2d 984, 750 NYS2d 912 [3d Dept 2002]; see also, 4 NYCRR 21.8[a][1]). Thus, the petitioner was on leave for a period in excess of one year.

The petitioner's claim that he did not realize his §207-c status changed is not convincing. The April 5, letter disclosed that because he was ordered to return to work, he went from line of duty to non-line of duty. Previous to April 5, no taxes were taken from his check. Subsequent thereto, full deductions were taken. Moreover, the final paragraph of the petitioner's March 1, 2006 memo states that it was only February 2006 that he received a copy of the collective bargaining agreement, inferring that he had no knowledge of his rights or responsibilities under such contract until such time. Alleged ignorance by an experienced police lieutenant of this agreement after he made the Medscope choice in 2004 pursuant to said agreement is not credible.

It is well settled that a civil service employee is not deprived of due process if the employee is terminated without a pre-termination hearing pursuant to Section 71 of the Civil Service Law (Allen v Howe, 84 NY2d 665, 621 NYS2d 287 [1994]). The statute gives the employee post termination due process. This includes the right to demand to return to work, and to contest any determination that he is not fit to return to work. Thus, the Fourteenth Amendment requirements are fully satisfied (Santiago v Newburgh Enlarged City Sch. Dist., 434 FSupp2d 193 [SDNY 2006]; Vargas v City of New York, 377 F3d 200 [2d Cir 2004]). In the instant matter the petitioner will have these post termination rights available under Section 71, the most important of which is the right to reinstatement provided application is made within one year of the cessation of the disability. [*6]

For the reasons stated herein, the Court finds that the Suffolk County Police Department and Commissioner Richard Dormer acted within their discretion to terminate the petitioner pursuant to Section 71 of the Civil Service Law. Accordingly, the petition is dismissed.

This constitutes the Decision and Order of the Court.

Dated: ________________________________________________

PETER H. MAYER, J.S.C.