Matter of Sheriff Officers Assn., Inc. v County of Nassau
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Matter of Sheriff Officers Assn., Inc. v County of Nassau 2012 NY Slip Op 31384(U) May 9, 2012 Supreme Court, Nassau County Docket Number: 1833-12 Judge: Arthur M. Diamond Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. -----------------------------------------------------------------------)( ------------------------------------------------------------------)( ........................ ................. [* 1] SUPREME COURT - STATE OF NEW YORK Present: HON. ARTHUR M. DIAMOND Justice Supreme Court TRlLPART: IN THE MATTER OF THE APPLICATION OF SHERIFF OFFICERS ASSOCIATION, INC. EX REL. PATRICK MCCAFFREY, NASSAU COUNTY Petitioner, for an Order and Judgment pursuant to NY CPLR INDEX NO:1833- Article 75, -againstMOTION SEQ NO. COUNTY OF NASSAU, Respondent. SUBMIT DA TE:03/28/12 The following papers having been read on this motion: Notice of Petition........................................ Memorandum of Law................................ Op p ositi 0 D................................................. .. Reply................. This Petition by the Sheriff Officers Association o/b/o pursuant to CPLR 97511 anulling and vacating November 15 2011 which denied Ranieri' s Kathr Ranieri for a judgment Arhur A. Riegel , Esq. arbitration award dated Amended Grievance dated May 11 , 2011 challenging her referral by the respondent Nassau County (" County" ) to independent medical consultant Dr. Charles H. Rosenberg on May 6 , 2011 to determine whether she had suffciently recovered from Januar 20 2006 injures which she sustained in the course of duty and whether she was physically capable of returing to work on a full-time restricted duty or no- duty capacity is determined as provided herein. Kathr Ranieri has been a correction officer employed by the County since March 2001. On Januar 30 , 2006, she suffered injuries to her left wrist and lumbar spine in the course of her employment as a result of a struggle with an inmate who was attempting suicide. Via correspondence dated Januar 31 2006 , Ranieri was awarded sick time benefits pursuant to General [* 2] Municipal Law 9 207-c from Januar 20- 2006. That correspondence noted however that " (a)ny future absences alleged to be due to the injur sustained on the above referenced date must be documented with additional medical certification (and that) the applicability of207-c benefits for futue absences and medical treatment wil be determined on a case- by-case basis. Ranieri remained on full duty until July 2006 , when she was put on restricted duty. From the date of the injur until April 2007 , she intermittently took sick leave days pursuant to General Municipal Law 9 207-c as a result of her on- the-job injuries. She was thereafter examined by the County Police Surgeon seven times , on April 17 , 2007 , July 25 , 2007 , October 17 2007 , Februar 14 2008 , June 2008 , March 4 2009 , and Febru 3 , 2011. In his report of April 17 , 2007 , the Police Surgeon found that Ranieri remained on " Full Duty" status until July 2006 when she went on " Restricted Duty" until the final week of Januar 2007 when she signed out sick. He concluded that she had moderate parial and that she was only capable of " Restricted Duty. " disability to her The Police Surgeon found lumbar spine however that she could work any/all tours of duty and/or shifts and that she could be assigned to work hours in excess of one tour of duty. As the result of his examination of Raneri , in his report dated July 25 , 2007 , the Police Surgeon again noted that she had remained on " Full Duty" status until July 2006 and that she went on " Restricted Duty" until the final week of Januar 2007 when " she signed o t sick." He concluded that she could remain on " Restricted Duty" ; that she could continue to work any/all tours of duty and/or shifts; and , that she could be assigned to work hours in excess of one tour of duty. Upon re-evaluating Ranieri again , in his reports dated October 17, 2007 and Februar 14 2008 , the Police Surgeon concluded that she was " (n)ot capable of Full Duty but (could) continue with Restricted Duties ; that she could continue to work any/all tours of duty and/or shifts; and , that she could continue to be assigned to work hours in excess of one tour of duty. Upon re-evaluating Ranieri again , in his report dated June 5, 2008 , the Police Surgeon noted that she continued to work restricted assignment; that she was stil " not capable of Full Duty but (could) continue with restricted duties ; and , that she could work any/all tours of duty and/or shifts and be assigned to work hours in excess of one tour of duty. Upon re-evaluating Ranieri , in his report of March 4 2009 " the Police Surgeon specifically [* 3] noted that she works " Restricted Assignment with intermittent periods of Sick Leave " and that she was " permanently disabled for Full Day as CO correction officer) (emphasis added). " He found that while she could continue to be assigned and/or permitted to work during any/all tours of duty or shifts , that she could no longer be assigned or permitted to work hours in excess of one tour of duty. Finally, upon re-evaluating Ranieri , in his report of Februar 3 , 2011 , the Police Surgeon noted that she " had been RA (Restricted Assignent) since 2007"; and that she was " permanently disabled for full duty as CO (correction offcer); (and that) she remains on RA (Restricted Assignment) (emphasis added). " He again found that while she could continue to be assigned and/or permitted to work during any/all tours of duty or shifts , that she stil could not be assigned or permitted to work hours in excess of one tour of duty. It is not disputed that throughout all this time , Raneri took medical leave pursuant to General Municipal Law 9 207 -c without challenge by the County. The number of those leave days substantially decreased afer 2007 and remained generally the same in each year thereafter. Ranieri was absent on Februar 22- 2011 and April 4- , 2011 for which dates she again sought medical leave benefits pursuant to General Municipal Law 9 207-c. The County viewed this behavior as in derogation of the Police Surgeon s Februar 3 2011 report and accordingly on May 2011 , the County referred Ranieri for an evaluation by an independent medical consultant , Dr. Craig H. Rosenberg of Rehabilitation Medicine Associates , to determine whether inter alia , she had sufficiently recovered and was physically capable of returning to w rk in a full- time restricted duty or no- duty capacity. Dr. Rosenberg found inter alia that Raneri was not capable of working in a full duty capacity but that she could continue working full time in a limited duty capacity at the sedentar- light physical demand level. Via Amended Grievance Report dated May 11 , 2011 , the Sheriff Offcers Association challenged the County' s referral of Ranieri to Dr. Rosenberg as well as the issue referred to him as violative oftheir Collective Bargaining Agreement (" CBA" ). A hearing was held on May 6 2011 before arbitrator Arhur A. Riegel. Arbitrator Riegel noted that a correction officer could in fact dispute the Police Surgeon s findings through his/her conduct. He noted that the Police Surgeon found that Ranieri could work eight hour days on Restricted Duty on Februar 3, 2011. He therefore [* 4] concluded that by thereafter absenting herself two sets of consecutive days and seeking leave pursuant to General Municipal Law 9 207 -c , via her conduct , Ranieri had in fact disputed the Police Surgeon s report of Februar 3 2011. Arbitrator Riegel found that the Police Surgeon s Februar , 2011 report varied significantly from his/her March 4 , 2009 report in that the earlier of these reports allowed for intermittent use of sick leave but there was no such provision in the Februar 3 2011 report. Thus , Arbitrator Riegel concluded that Ranieri knew or should have known that she was no longer entitled to intermittent leave pursuant to General Municipal Law 9 207 -c when she was absent in Februar and April 2011. He found that by attempting to avail herself of leave pursuant to General Municipal Law 9 207-c based upon an alleged inabilty to work due to her Januar 20 , 2006 injur, Ranieri had violated the Police Surgeon s Februar 3 , 2011 conclusion that she could work eight hour days of restricted duty. He additionally found that because Ranieri had challenged the Police Surgeon s Februar 3 , 2011 .report via her actions , the County properly required an independent medical examination pursuant to the CBA. He rejected Raneri' s position that the County had deprived her of her choice under the CBA between a hearng or an evaluation by an independent medical examiner to resolve her dispute. He noted that the term distinguishable from of a tour of duty while offcer. " full duty. He opined full duty In conclusion , Full time full time connotes working eight hour days the length indicates an ability to perform all of the fuctions of a correction Arbitrator Riegel found that the County did not violat the CBA by unilaterallysending Ranierifor an independent medical examination and that the question posed was proper in the context of the facts of this case. The petitioner seeks anulment and vacatu of the arbitrator s award on two grounds: Based upon the County' s insistence of an Independent Medical Examination on May 6 , 2011 , and its referral to the doctor of whether she was capable of working full time. An arbitrator s award can be vacated when it violates strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator s award under CPLR 9 7511(b)(i). Matter of New York State Correctional Officers & Police Benev. Ass n. Inc. v State NY2d 321 326 (1999). " Any limitation upon the power of the arbitrator must be set forth as par of the arbitration clause itself, for to infer a limitation from the substantive provisions of an agreement containing an arbitration clause callng for arbitration of all disputes arising out of the , " [* 5] contract , or for arbitration in some other broadly worded formulation , is to involve the cours in the merits of the dispute - interpretation of the contract's provisions - in violation of the legislative mandate. Matter of Silverman Benmor Coats ), 61 NY2d 299 , 307 91984) citing Nationwide Gen. Ins. Co. vlnvestors Ins. Co. , 37 NY2d 91 , (1975); Matter of Matter ofWilaka Constr (New York City Housing Auth ), 17 NY2d 195 (1966); Siegel NY Prac , 99 589 590. General Municipal Law 9 207-c obligates Nassau County to not only pay for all medical care necessitated by injuries sustained by correction officers in the performance of their duties , but to pay them the full amount of their regular salar until their disability ceases. With respect to an injured employee who has been awarded benefits pursuant to General Muncipal Law 9 207-c work , the paries ' CBA provides at Attachment B retu in disputed cases where the Deparment believes that a Correction Officer who has been out of work as a result of a prior line-of- duty or ilness (mental or physical) injur is capable both physically and/or mentally of performing either temporar limited duties or full duties , the Correction Offcer may elect to have the dispute resolved at a due process hearng conducted pursuant to General Municipal Law Section 207 8 (sic) or by the medical consulting service described herein. " With respect to an injured employee who has been awarded General Muncipal Law 9 207 -c benefits and alleges a subsequent incapacity as a result of their injur following their retur to work , the CBA provides at Attachment B 13: the Offcer shall be re-e amined by, the medical consultant service provi that the Offcer presents to the Deparment at his/her own expense a detailed report from a medical doctor specifying the changes that occured in the Officer s condition since his/her prior examination by the medical consultant service and how such changes have resulted in deterioration ofthe The paries agree that the Officer shall remain on Workers ' condition. Compensation status while out of work and be charged with a reduction of such leave accruals during the pendency of this re-examination period. Should the officer be found unfit for limited duty upon re-examination due to the line-of- duty injur or ilness , then is/her sick leave deductions shall be restored retroactive to the date the Deparent was notified by the physician of the change in condition. [* 6] The County' s Deparment Policy and Procedure No. CD- 03- 01- 10 (II)(H) fuher provides: Every absence based on GML 207 -c and Workers ' Compensation law requires documentation by a physician s note. Officers reporting back to work after an absence based on GML 207-c must report to MID and provide a physician note. The physician s note will include the date of the injur, a diagnosis and prognosis relative to the injury, and work status (Full Duty-no restrictions or Restricted Duty and restrictions listed). Offcers who fail to provide a physician s note will have their accumulated sick time charged for such periods of absence. The arbitrator here lacks authority under Attachment B (5) of the CBA. The County argues that this is a " disputed case " pursuant to Par. 5 of Attachment B of the contract and therefore they had the right to refer her to an independent medical consultation. The cour notes initially that Ranieri had not been " out of work" when the referrals to both Dr. Rosenberg as well as Riegel were made. In addition Ranieri did not dispute her physical or mental ability to perform permanent limited duties. As found by the Police Surgeon , she was permanently on restricted duties. However the county argues that this case presents what is referred to as a " dispute by conduct" situation because in the Police Surgeon Februar, 207-c time off as a re u1t 2011 report he did not state that she was takng intermittent the injuri s. His report makes no mention , one way or the other , of207 c time off. From this omission the county argues that she is not entitled to any such time off and by continuing to do so she disputed the police surgeon s findings by her conduct. The court canot however, make that connection. Not every one ofthe prior surgeon reports mentioned 207c benefits and the county took no action after those reports. The cour notes that benefits under General Municipal Law 9 207-c only cease when a beneficiar s disability has ceased. In view of the Police Surgeon s offcial finding that Ranieri was " permanently disabled " it appears ilogical that those related benefits have ceased. On the other hand it would appear logical that someone who has been found to be disabled would need time off now and then because ofthat disabilty. Finally, if for other reason , Arbitrator Reinhardt lacked jurisdiction because 5 of Attachment B affords the Correction Officer an option to have the dispute of whether s/he is " capable both physically and/or [* 7] mentally of performing either temporar limited duties or full duties " resolved either at a due process hearng conducted pursuant to General Municipal Law 9 207 -c or by the medical consulting service. That option was never afforded the petitioner , thereby abrogating the arbitrator s authority. In any event , the issue referred to Dr. Rosenberg for resolution does not fall within the issues 3 of the CBA provides: that could be referred to an independent medical examiner. Attachment B Issues which shall be affected and/or determined by the use of an independent medical facility as follows: 3. Whether a Correction Officer who incured an ilness or injur (mental or physical) as a result of the performance of police/peace duties has sufficiently recovered and is physically and mentally able for either temporar limited duty assignents or full duty. The issue referred here was w)hether Officer Kathrn Raneri , who sustained injuries to her left wrist and low back in the performance of her duties on Januar 2006 , has suffciently recovered 20 and is physically capable of returing to work in a full time restricted duty or no- duty capacity. Under the paries ' CBA full time " was not an issue for resolution by Dr. Rosenberg. By allowing this determination to be made , Arbitrator Riegel improperly permitted the CBA to be rewritten. The Arbitrator s reliance on a prior decision by him as c nstituting past practice on which he was entitled to rely in making his determinations here was misplaced. He may not do so if it results as it has here in bypassing express contractual provisions. Matter ofN ew York City Tr. Auth. v Patrolmen s Benev. Ass n of New York City Transit Police Dept. , 129 AD2d 708 (2 Dept 1987), app dism. , 70 NY2d 719 (1987); see also , Hunsinger v Minns , 197 AD2d 871 (4 th Dept 1993). The petition is granted and the arbitrator s determination dated November 15 2011 is vacated and anulled. This constitutes the decision and order of this Cour. ENTER DATED: May 9 , 2012 A/: HON. ARTHU M. DIAMOND J. S. IiNTERED MAY 22 2012 , NAiI COUNTY COUNtY CLERK' OFFte! [* 8] To: Attorney for Plaintiff KOEHLER & ISAACS, LLP. Attorney for Respondent 61 Broadway, 25th Floor DONOVAN, LLP. 170 Old Country Road , Suite 200 Mineola, New York 11501 New York , New York 10006 BEE READY FISHBEIN HATTER &
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