Sands v City of Rochester

[*1] Sands v City of Rochester 2004 NY Slip Op 51931(U) [21 Misc 3d 1112(A)] Decided on September 15, 2004 Supreme Court, Monroe County Frazee, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 15, 2004
Supreme Court, Monroe County

James A. Sands, Jr., Plaintiff,

against

City of Rochester, ROCHESTER FIRE DEPARTMENT and FIRE CHIEF FLOYD A. MADISON, Defendants.



2004/08362



APPEARANCES:

Redmond & Parrinello, LLP

36 West Main Street, Suite 400

Rochester, New York 14614

Appearing on behalf of the plaintiff

By: John R. Parrinello, Esq., of Counsel

Linda S. Kingsley, Corporation Counsel

400A City Hall

Rochester, New York 14614

Appearing on behalf of the defendants

By: Matthew D. Brown, Esq., of Counsel

Evelyn Frazee, J.

Petitioner James A. Sands, Jr. (Sands) was a front line firefighter from 1989 to July 9, 2001, when he allegedly injured his lower back and groin on the job. On July 9, 2001, Sands filed a Rochester Fire Department (RFD) injury report for §8.B-5 Medical and Disability Benefits of the Rochester City Charter for the lower back and groin injuries. On August 6, 2001, he was ordered to light duty. [*2]

On August 21, 2001, RFD Fire Chief Madison wrote a letter to petitioner informing him that his §8.B-5 application was being denied based on a letter to the Chief from Dr. Boris Shmigel, the department's surgeon, dated August 15, 2001 relating the back pain to a "pre-existing condition." Chief Madison advised petitioner that his absence from duty was going to be changed from an on-duty status to illness. Chief Madison also informed petitioner that petitioner's §8.B-5 Medical and Disability Benefits were denied and that the RFD was filing a sick report. Chief Madison caused a sick report to be placed in petitioner's file indicating that petitioner ". . . was carrying laundry bag (full) down the stairs at E7 quarters when lower back gave out."

On August 31, 2001, petitioner submitted an Inter-Department Correspondence (IDC) to Chief Madison requesting that a hearing be scheduled regarding the Chief's denial of petitioner's §8.B-5 application. On October 30, 2001, Dr. Shmigel, the RFD doctor, wrote a memorandum to Chief Madison which indicated that after Dr. Shmigel's review of petitioner's injury reports, charts, and all medial reports, it is his opinion ". . . that the injury was probably caused by the stated incident of July 9, 2001."

On November 15, 2001, Chief Madison wrote a letter to petitioner "Re: Section 8.B-5 Application Reconsideration." Chief Madison approved petitioner's application for §8.B-5 medical benefits for injuries occurring on July 9, 2001 based on Dr. Shmigel's memorandum dated October 30, 2001, but continued the denial of §8.B-5 disability benefits. Chief Madison wrote ". . . If you wish to contest the denial of your disability benefits, you must request a hearing pursuant to the Collective Bargaining Agreement between the City of Rochester and Local 1071, I.A.F.F."

Petitioner continued to work light duty until June 24, 2002 when he claims his medical condition prevented him from working. On July 24, 2002, petitioner submitted another §8.B-5 application for the same back injury sustained on July 9, 2001. On February 26, 2003, Chief Madison wrote a letter to petitioner approving his §8.B-5 medical benefits and denying his §8.B-5 disability benefits based on the Chief's review of petitioner's application, injury report, and medical records. Thereafter, petitioner returned to work in a light duty capacity.

On June 10, 2003, Chief Madison wrote a letter to petitioner indicating that he had authorized a Medical Case Review of petitioner, which was done on June 16, 2003 by Dr. Roy A. Hepner. On June 16, 2003, Dr. Hepner submitted a ten page report to Chief Madison.

On September 18, 2003, Chief Madison wrote a letter to petitioner which indicated that petitioner had returned to light duty without a restriction of duty hours. Chief Madison then ordered petitioner, effective September 25, 2004 [sic, should have read 2003] to the Fire Investigation Unit. Petitioner asserts this required as much physical effort as firefighting, constituted more stalling and mind games by the RFD, and sent him over the edge psychologically. Petitioner asserts he still had not had his §8.B-5 hearing to determine his disability status and instead the RFD ordered him to so called "light duty."

On September 23, 2003, a Certificate For Return To Work/School was issued by Dr. Baratz, petitioner's primary care physician, delaying petitioner's return to work until October 20, 2003. Dr. Baratz indicated that petitioner was suffering from ". . . depression with severe anxiety." On October 15, 2003, a Certificate For Return to Work/School was issued by Dr. Baratz to petitioner delaying petitioner's return to work until November 20, 2003. Dr. Baratz [*3]diagnosed petitioner with ". . . depression with severe anxiety."

By December, 2003, petitioner asserts he could not return to work because of his physical and mental injuries suffered as a result of the performance of his duties and the RFD's handling of his disability claim, respectively. Sometime in December, 2003, Dr. Baratz referred petitioner to Dr. James Schubmehl, a psychiatrist, for his depression and severe anxiety. Petitioner asserts that the RFD's handling of his §8.B-5 application caused the deterioration of his mental state and that his physical and mental injuries became inexplicably intertwined due to the RFD's conduct.

On January 26, 2004, petitioner's counsel John R. Parrinello, Esq., wrote a letter to Dr. Shmigel requesting, among other things, that petitioner be removed from the sick list and placed on the §8.B-5 list.

On February 18, 2004, Matthew D. Brown, Esq., counsel for the City of Rochester, responded to Mr. Parrinello by letter. Mr Brown pointed out that based on a review of the medical records, it appeared that petitioner's back pain problem is likely related to his prior hernia, which was not a work related injury. Mr. Brown's correspondence also informed Mr. Parrinello that:

Dr. Hepner's Record Review, dated June 15, 2003, states that Firefighter Sands appears to be capable of performing the duties required for a fire inspector and fire investigator.' As all of the medical opinions to date, including that of Dr. Hepner, indicate that Mr. Sands can perform the duties of the position to which he is assigned no reason has been demonstrated to approve §8B-5 disability benefits for Mr. Sands.

Mr. Brown also informed Mr. Parrinello that petitioner "never filed a §8B-5 application regarding an alleged work related mental health disability, as would be required for any §8B-5 benefits."

Dr. Schubmehl sent a letter dated April 19, 2004 to Dr. Shmigel regarding petitioner's psychiatric problems asking Dr. Shmigel to forward to him Dr. Shmigel's treatment plan, as well as his prognosis for recovery, regarding the petitioner, so they could coordinate their treatment.

On May 17, 2004, John R. Parrinello, Esq., sent a letter to Matthew D. Brown, Esq. Mr. Parrinello's letter to Mr. Brown enclosed (1) petitioner's August 31, 2001 request for a §8.B-5 hearing; and (2) some medical reports. Mr. Parrinello asked Mr. Brown what medical reports Mr. Brown was referring to in Mr. Brown's February 18, 2004 letter. Mr. Parrinello asked Mr. Brown to advise Chief Madison to grant petitioner §8.B-5 disability status or to continue paying petitioner until petitioner's §8.B-5 claim was resolved by hearing and/or appeal. Mr. Parrinello requested that a hearing be scheduled forthwith.

On May 18, 2004, Matthew D. Brown, Esq., counsel for the City of Rochester, responded by letter to Mr. Parrinello stating in relevant part:

This responds to your correspondence, dated May 17, 2004. As you are aware, on August 31, 2001, Firefighter Sands requested a hearing following Fire Chief Madison's initial denial of his §8b-5 application. On November 15, 2001, Chief Madison reconsidered Mr. Sands' application and approved §8b-5 medical benefits, while still denying §8b-5 disability benefits.

On November 29, 2001, Mr. Sands returned to full-duty in Fire Safety. Thereafter, by correspondence, dated November 15, 2001, Chief Madison re-affirmed that Mr. Sands' §8b-5 [*4]medical benefits for his back injury were approved, but that §8b-5 disability payments remained denied. This correspondence informed Mr. Sands that he could request a hearing to contest the November 15, 2001 decision. Mr. Sands never requested a hearing.

On July 24, 2002, Mr. Sands submitted another §8b-5 application for the same back injury of July 9, 2001. Fire Chief Madison again approved §8b-5 medical benefits and denied §8b-5 disability payments. Thereafter, Mr. Sands again returned to light duty. Again, Mr. Sands never requested a hearing regarding the July 24, 2002 §8b-5 determination denying disability benefits for his back injury.

Furthermore, as stated in my May 17, 2004 correspondence, Mr. Sands never filed a §8B-5 application regarding an alleged work related mental health disability, as would be required for any §8B-5 benefits. Moreover, the City has not been provided with full medical records relating to a mental health disability, which would have been required for any timely §8b-5 application.

Accordingly, the request for a §8b-5 hearing to contest the November 15, 2001 determination denying §8b-5 disability benefits for Mr. Sands' back injury is untimely. Moreover, any request for a hearing regarding alleged work related psychological injuries is barred as Mr. Sands never submitted a §8b-5 application for such alleged injuries.

On June 7, 2004, Dr. Schubmehl wrote a letter to Dr. Shmigel as a follow-up to his April 19, 2004 letter to Dr. Shmigel, indicating that Dr. Shmigel had not responded to his letter in over two months. By correspondence dated June 18, 2004, Mr. Brown informed Dr. Schubmehl, among other things:

[Petitioner] never filed a §8B-5 application regarding an alleged work-related mental health disability, as would be required for any §8B-5 benefits. Moreover, the City has not been provided with full medical records relating to a mental health disability, which would have been required for any timely §8b-5 application.

[Petitioner] never filed a §8B-5 application regarding an alleged work-related mental health disability, as would be required for any §8B-5 benefits. Accordingly, it is unclear what response you are seeking from Dr. Shmigel regarding [Petitioner's] non work-related psychiatric treatment.

By letter dated May 24, 2004, the Department informed petitioner that his contractual six months of sick time would be exhausted by June 30, 2004, and that when that leave ended, he had no comp or personal hours banked for use. On June 25, 2004, petitioner sent correspondence requesting the City use the furlough hours he had banked in order to continue his salary. By letter dated July 16, 2004, Chief Madison confirmed that the City would use the banked furlough hours and that Sands' salary would continue through July 29, 2004.

Thereafter, the petitioner commenced this Article 78 proceeding. The petition was verified July 28, 2004, and the Court signed an order to show cause on July 29, 2004. The stated purpose of the Article 78 proceeding is to compel the City to hold a §8.B-5 disability hearing. [*5]The petitioner's request for a stay of the enforcement of the decision to terminate his pay as of July 30, 2004 was denied.

DISCUSSION

The applicable collective bargaining agreement provides, in relevant part (Art. 32, Section 3[2][J]) that:

If the initial determination of the Chief is that the applicant is not eligible for Section 8B-5 benefits, and the applicant wishes to contest such determination, the member shall serve a written demand to the Chief for a hearing and final determination of such application, which demand shall be served within ten (10) business days of the mailing of the Chief's determination.

There is no dispute that on August 31, 2001, petitioner timely requested a hearing following the August 21, 2001 denial of his application for §8.B-5 medical and disability benefits due to a lower back and groin injury. On November 15, 2001, however, his §8.B-5 application was reconsidered and he was granted medical benefits. His §8.B-5 disability benefits, however, were again denied. Petitioner was specifically informed that if he wished to contest the denial of his disability benefits, he must request a hearing pursuant to the collective bargaining agreement.

Petitioner did not request a hearing but instead returned to work in light duty until June, 2002. At that time, he submitted another §8.B-5 application for the same back injury of July 9, 2001. On February 26, 2003, petitioner's §8.B-5 medical benefits were approved and his §8.B-5 disability benefits for his back injury were again denied. Petitioner did not request a hearing with regard to the February 26, 2003 decision.

On May 17, 2004, petitioner's counsel sent a letter to counsel for the City of Rochester enclosing a copy of petitioner's August 31, 2001 request for an §8.B-5 hearing. This was the first time petitioner arguably requested a hearing since August 31, 2001. The request, however, now included a claim for a mental health disability which allegedly arose sometime after Chief Madison's letter of September 18, 2003 ordering petitioner to the Fire Investigation Unit.

The Court finds that petitioner is not entitled to a hearing on his §8.B-5 disability claim for his back injury. Even if it could be argued that the November 15, 2001 reconsideration decision did not render petitioner's August 31, 2001 request for a hearing moot, petitioner's second application on July 24, 2002 and failure to request a hearing following the February 26, 2003 decision on the second application clearly did. By his conduct, petitioner failed to timely file an administrative appeal and such failure constitutes a waiver and failure to exhaust administrative remedies precluding a review of his claim for §8.B-5 disability benefits under Article 78 (Motta v McCall, 300 AD2d 803 [3rd Dept, 2002]; Schaefer v New York State Employee's Retirement System, 136 AD2d 835 [3rd Dept, 1998]; 2 NYJur2d Administrative Law §218; 24 Carmody-Wait 2d §145:62: Failure To Timely File Administrative Appeal).

Additionally, the record reveals that petitioner never properly filed a §8.B-5 application with regard to his alleged mental health problem and, therefore, was not entitled to a hearing on such claim.

The petition is dismissed for the reasons stated herein. [*6]

Dated at Rochester, New York

this 15th day of September, 2004.



Honorable Evelyn Frazee

Justice Supreme Court