Zervos v City of Binghamton

[*1] Zervos v City of Binghamton 2009 NY Slip Op 52730(U) [26 Misc 3d 1217(A)] Decided on December 8, 2009 Supreme Court, Broome County Lebous, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2009
Supreme Court, Broome County

Spero Zervos, Petitioner,

against

City of Binghamton, Respondent.



2009-2154



APPEARANCES:

Counsel for Petitioner:HINMAN, HOWARD & KATTELL, LLP

BY:PAUL T. SHEPPARD, ESQ. OF COUNSEL

700 SECURITY MUTUAL BUILDING

BINGHAMTON, NY 13901

Counsel for Respondent:OFFICE OF THE CORPORATION COUNSEL

BY:KENNETH J. FRANK, ESQ., CORPORATION COUNSEL

CITY HALL, 38 HAWLEY STREET

BINGHAMTON, NY 13901

Ferris D. Lebous, J.

Petitioner commenced this Article 78 proceeding to challenge respondent the City of Binghamton's determination of his ineligibility from January 30, 2008 through September 16, 2008 for General Municipal Law § 207-a benefits. Respondent, the City of Binghamton, (hereinafter the "City") opposes the petition in all respects.

The court heard oral argument from counsel on October 16, 2009.[FN1]

BACKGROUND

On February 26, 2007, petitioner was injured in the course of his employment as a firefighter for the City of Binghamton. Petitioner, as a member of the Binghamton Firefighters Local 729 Union ("Union"), is subject to the Collective Bargaining Agreements between the Union and the respondent (hereinafter "CBA").

In March 2007, petitioner was initially treated following his injury by Walid Hammoud, M.D. through the Preferred Provider Organization (PPO). Dr. Hammoud released petitioner for light duty on March 5, 2007 and then for regular duty on March 10, 2007. However, on March 14, 2007, petitioner was diagnosed with a torn right anterior cruciate ligament and removed from work.

On or about March 1, 2007, petitioner filed a claim for GML§ 207-a benefits.

On March 12, 2007, the City determined that petitioner was entitled to 207-a benefits for February 26, 2007 through February 27, 2007.

On or about March 19, 2007, petitioner switched medical providers and began treating with a private physician, Thomas R. Van Gorder. During Dr. Van Gorder's hearing testimony he recalled examinations on, among other dates, January 30, 2008, March 13, 2008, April 24, 2008, May 8, 2008 and May 14, 2008. Dr. Van Gorder testified that he did not recall discussing light duty options with petitioner on any of those dates nor did he recall petitioner ever providing any paperwork to him regarding light duty. [*2]

By way of a letter dated March 5, 2008, RMSCO, the City's Workers' Compensation carrier submitted to Dr. Van Gorder a workers' compensation form for completion.

On March 25, 2008, Dr. Van Gorder signed and dated said form indicating petitioner's injury status as follows:

1.TOTAL DISABILITY - The inability to perform any type of gainful work, but not necessarily bedridden.

Period from 11-29-7 to 1-30-8.

***

4.MODERATE PARTIAL DISABILITY - No lifting over 10-25 pounds. No prolonged standing, walking, bending, reaching, or sitting.

Period from 1-30-8 to present [March 25, 2008].

The hearing testimony by both Dr. Van Gorder and petitioner established that petitioner was completely unaware of this communication between RMSCO and Dr. Van Gorder.

On April 1, 2008, the City indicated to petitioner's counsel that it was unable to make a 207 determination until receipt of "medical evidence indicating why he is unable to work in a light duty capacity".

On May 9, 2008, the City advised petitioner that he was to report for work on May 12, 2008 indicating that "[y]ou were approved by your physician for light duty as of January 30, 2008. Your restrictions of no lifting over 10-25 pounds and no prolonged walking, bending, reaching, or sitting will be accommodated." Petitioner attempted to return to work, but after several days was unable to continue.

On May 14, 2008, Dr. Van Gorder found that petitioner was not capable of working.

On June 18, 2008, the City issued an interim determination that petitioner was entitled to 207-a benefits from March 26, 2007 through December 31, 2007.

On July 8, 2008, the City issued an amended interim determination that petitioner was entitled to 207-a benefits from March 14, 2007 through December 31, 2007.

On July 14, 2008, the City issued a determination that petitioner was entitled to 207-a benefits from January 1, 2008 through January 30, 2008. Said determination also found that "[a]s of January 30, 2008, Firefighter Spero Zervos was released for light duty, but failed to forward this information to the City of Binghamton." Petitioner requested a hearing with respect [*3]to said determination to the extent it denied benefits after January 30, 2008.

On July 23, 2008, the City directed petitioner to undergo an independent medical examination. On August 1, 2008, the City advised petitioner that he was to report for work on August 4, 2008 indicating that "[y]ou were approved for light duty as of July 25, 2008. Your restrictions of no lifting over ten pounds and no prolonged walking, bending, reaching, or sitting will be accommodated."

On August 4, 2008, petitioner reinjured his right knee at work. Effective September 16, 2008, petitioner was granted Performance of Duty Disability Retirement by the New York State and Local Police and Fire Retirement System on the grounds that he was permanently incapacitated for the performance of duties.

In February 2009, a hearing was held on petitioner's appeal of the City's 207-a determination.

On April 22, 2009, Hearing Officer Olmstead issued a written decision determining that petitioner should not be reimbursed for his sick days from January 30, 2008 to September 16, 2008 because of his own failure to follow procedure in supplying medical documentation (hereinafter "Decision"). The details of said Decision will be discussed hereinbelow.

On August 12, 2009, petitioner timely filed a notice of petition and petition seeking to vacate the Hearing Officer's April 22, 2009 decision, as well as the underlying City's determination of July 14, 2008. The City interposed a verified answer on or about October 8, 2009.

DISCUSSION

A.Burden of Proof/Parties' positions

The administrative determination at issue here is Hearing Officer Olmstead's Decision dated April 22, 2009 which found that petitioner "should not be reimbursed for his sick days from January 30, 2008 until September 16, 2008" (Decision, pp 7-8). It is well-settled that "[j]udical review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence" (Matter of Andrew Naclerio Assoc., Inc. v Pradham, 45 AD3d 585 [2nd Dept 2007]).

Petitioner argues that the Hearing Officer's Decision was arbitrary and capricious, an abuse of discretion, not supported by substantial evidence and is erroneous as a matter of law because the Hearing Officer sustained the City's determination despite, among other things, uncontroverted evidence that petitioner was unaware of Dr. Van Gorder's release to light duty; petitioner had not, in fact, been so released; the hearing officer's finding that petitioner had failed to comply with the obligation to supply physician reports to the City was not the basis for the City's denial; and that the City terminated benefits retroactively without a hearing. [*4]

In opposition, the City argues that the Hearing Officer's Decision is supported by substantial evidence including the testimony of petitioner and Dr. Van Gorder, the medical records, and the Binghamton Fire Department Standard Administration Guidelines (hereinafter "Guidelines").

B.The Decision

A review of the Decision reveals a well-reasoned, thorough, examination of the testimony and evidence presented. The Decision identifies the witnesses presented, the documents marked and offered into evidence, the parties' positions, and narrows the question presented to "[w]hether FF Zervos is entitled to be reimbursed for his sick days from January 30, 2008 until September 16, 2008?" (Decision, p 3).

The Decision summarizes Dr. Van Gorder's testimony as follows: "[i]t was the doctor's testimony that FF Zervos never gave him any paperwork from the City regarding light duty. He also testified that [he] has no recollection of discussing light duty with the patient" (Decision, p 6). Next, the Hearing Officer stated that "[a]t no time did FF Zervos submit physicians' reports to the City for any of the office visits with Dr. Van Gorder. He knew or should have known of the requirement to do so" (Decision, p 6).

The Hearing Officer also reviewed the City's responses to petitioner's medical information or lack thereof. The City ordered petitioner back to light duty upon learning of Dr. Van Gorder's opinion in the March 25, 2008 form. The Hearing Officer found that petitioner returned to light duty for only a few days before leaving, but without suppling any documentation to "justify being out of work" (Decision, p 6). The Hearing Officer also found that the City directed petitioner back to light duty a second time after an IME indicated he was capable of doing so. Again, the Hearing Officer found that petitioner returned to light duty for only a few days before leaving and without suppling any justifying documentation (Decision, pp 6-7).

The Hearing Officer then reviewed the procedures governing the parties by referencing the Binghamton Fire Department Standard Administration Procedures (hereinafter "Procedures").[FN2] The Hearing Officer concluded that petitioner "[d]id not supply to the City any medical information from Dr. Van Gorder. Dr Van Gorder testified he did not receive any forms or light duty information from FF Zervos. FF Zervos did not do as he was required and submit the information necessary to justify 207-a benefits" (Decision, p 7).

The Decision directly addressed petitioner's argument, also raised here, that he was never told by Dr. Van Gorder that he had been released for light duty so he never knowingly withheld this information from the City. Quite simply, the Hearing Officer found that petitioner "knew or should have known what was expected from him" based upon the written and verbal instructions [*5]he had previously received (Decision, p 7).

C.Guidelines and CBA

1.The Guidelines

As noted above, the City has implemented internal rules for reporting job related injuries, namely the Binghamton Fire Department Standard Administration Procedures (hereinafter "Procedures"), effective prior to February 22, 2008, and the Binghamton Fire Department Standard Administration Guidelines (hereinafter "Guidelines"), effective February 22, 2008. Both the Department's Procedures and Guidelines require as follows:

All appropriate forms must be submitted in accordance with the following time table:

Physician's Report - Completed by original attending physician within 24 hours (i.e. emergency room visit).

A Physician's Report [language omitted][FN3] must be submitted within 24 hours for every subsequent visit until the employee returns to either full or modified duty. Failure to submit this report may result in loss of benefits.

(Petition, Exhibits B [2.2.1] & C [6.1.1]; emphases in originals; italics added).

The Guidelines also state, in part, as follows:

[t]he determination of eligibility for benefits under Section 207(a) of the General Municipal Law will be made by the City (Corporation Counsel). The granting of 207(a) allows reimbursement of sick time....

***

Note: If the employee contests either decision, the employee should demand a hearing with the 207 hearing officer for a determination (within 60 days) in writing to the Commissioner of Public Safety (Mayor). If the claim is still denied, the employee can institute legal action.

(Petition, Ex C, ¶ 10.1.1 & 10.1.2).

2.CBA

The governing CBA addresses the issue of benefits under General Municipal Law § 207-a by outlining the procedures applicable for the initial determination and subsequent determinations thereunder. Article 27 B of the CBA sets forth that the City will make all initial and subsequent determinations under 207-a including, but not limited to, "[w]hether the Firefighter is able to perform specified types of light duty consistent with his/her status as a Firefighter" (Petition, Ex A, pp 20-21). The CBA further sets forth that all "[d]isputes and [*6]disagreements with respect to said [subsequent] determinations will be resolved in accordance with the current City procedure using an impartial hearing officer appointed by or on behalf of the Mayor, with disputes and disagreements related to the hearing officer's determination on such matters resolved in accordance with Article 78 of the CPLR" (Petition, Ex A, p 21).[FN4]

D.Analysis

1.City's administrative actions

The court finds that neither the CBA or Guidelines afforded petitioner the right to a hearing prior to the City's determination of July 14, 2008. The law is clear that a municipality and union have the authority to negotiate the administration of 207 benefits (Raymond v Walsh, 63 AD3d 1715 [4th Dept 2009]). These parties did exactly that by the terms of the CBA and Guidelines. More specifically, CBA Article 27-A sets forth separate procedural remedies as between initial determinations and subsequent determinations. CBA Article 27-A states that all disputes concerning the City's initial 207-a determination shall be submitted to final and binding arbitration (CBA, pp 20-21). The CBA Article 27-A further states that all disputes concerning the City's subsequent 207-a determinations "[w]ill be resolved in accordance with the current City procedure using an impartial hearing officer appointed by or on behalf of the Mayor, with disputes and disagreements related to the hearing officer's determination on such matters resolved in accordance with Article 78 of the CPLR (CBA, p 21). The City's initial determination granted petitioner 207-a benefits and was issued on March 12, 2007. Obviously, there was no disagreement with that initial determination. All the City's determinations thereafter - including the City's determination of July 14, 2008 - regarding petitioner's 207-a benefits must be viewed as subsequent determinations under the CBA and, as such, were subject to a hearing under CBA Article 27-A (CBA, p 21; see also Guidelines, 10.1.1 & 10.1.2). The City properly referred this matter to a hearing which ultimately culminated in the Hearing Officer's April 22, 2009 decision which is the subject of this Article 78 proceeding.

To the extent that petitioner argues that the City acted illegally by directing petitioner to light duty without a hearing the court finds the argument without merit as well. In the first instance, the court notes that it is well-settled that "[e]ntitlement to benefits under General Municipal Law [207-a] prior to [his] termination constitutes a property right protected by the constitutional guarantees of due process, which may not be summarily discontinued or suspended without a prior evidentiary hearing, with notice and opportunity afforded to the beneficiary to be heard [citations omitted]" (Matter of Dacey v County of Dutchess, 121 AD2d 536, 538 [2nd Dept 1986]). However, the Court of Appeals has stated that "[a]lthough an administrative hearing may ultimately be required before section 207-a payments are terminated [citation omitted], recipients are not entitled to a hearing...prior to the issuance of a report for light duty order [citation omitted]" (Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686, 692 [2000]). [*7]

In sum, the court finds that the City properly handled petitioner's objection to its subsequent determination of July 14, 2008. 2.The Hearing Officer's Decision

With respect to the substance of the Hearing Officer Olmstead's Decision dated April 22, 2009, this court finds that said Decision was supported by substantial evidence. Petitioner and Dr. Van Gorder both testified that they did not discuss light duty options nor did petitioner ever provide or request any such determination from his physician. Nor is there any dispute that petitioner was not aware of the RMSCO inquiry or Dr. Van Gorder's response dated March 25, 2008 indicating he was capable of light duty as of January 30, 2008. However, the Hearing Officer determined that petitioner knew or should have known of the requirement to submit physicians' reports to the City for any of the office visits with Dr. Van Gorder. The court finds there was substantial evidence supporting the Hearing Officer's determination that the onus was on petitioner to be aware of and in compliance with the physician reporting requirements, not Dr. Van Gorder, and not the City. Otherwise, a finding to the contrary would require the City to act as caretaker for every injured employee to ensure medical reports are submitted and/or to ensure that private physicians relay any and all treating information to the City.

For the reasons stated, the court finds that the City's actions were not arbitrary and capricious with respect to its administrative handling of this matter and that Hearing Officer Olmstead's Decision dated April 22, 2009 was supported by substantial evidence.

The court finds petitioner's remaining arguments to be without merit.

CONCLUSION

Accordingly, it hereby is ORDERED and ADJUDGED that the petition is dismissed. No costs.

This constitutes the decision, order and judgment of the court.

Dated: December 8, 2009

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court Footnotes

Footnote 1:On the afternoon before motion term, petitioner's counsel submitted an 8 page, single spaced, memorandum of law in letter form to the court and opposing counsel. Notably, petitioner had not served any memorandum of law at the time of the filing of the petition. 22 NYCRR § 202.8 (c) admonishes that "[t]he moving party shall serve copies of all affidavits and briefs at the time of the service of the notice of motion [petition] [emphasis added]." Courts have criticized the "unfortunate practice" of stating a nominal position in moving papers and saving substantive arguments for reply papers in order to deny one's opponent an opportunity to respond (Scherrer v Time Equitiesi, Inc., 218 AD2d 116 [1st Dept 1995]; Ritt v Lenoxville Hosp., 182 AD2d 560. 562 [1st Dept 1992]). Additionally, such practice also diminishes the value of oral argument by limiting this court's ability to flush out the parties' respective positions due to the last minute submission of substantive arguments.

Footnote 2:The Procedures were effective prior to February 22, 2008 and thereafter replaced with the Binghamton Fire Department Standard Administration Guidelines (hereinafter "Guidelines"), effective February 22, 2008.

Footnote 3:The Guidelines added the phrase "or Patient Management Record (PMR) report (form used by United Occupational Medicine)".

Footnote 4:By way of comparison, the CBA states that disputes relating to the City's initial determinations shall be subject to a demand for arbitration.