Labor & Employment Law

Concerning CSL Section 71 and GML Sections 207-a and, or, 207-c

By Harvey Randall, Esq.

Concerning CSL Section 71 and GML Sections 207-a and, or, 207-c
A New York Public Personnel Law review

Referring to an summary earlier published in New York Public Personnel Law, [see

http://publicpersonnellaw.blogspot.com/2007/11/discontinuing-disability-benefits.html],

a reader recently asked: Is there is any case law addressing a situation involving a disabled firefighter [receiving benefits pursuant to General Municipal Law Section 207-a]¹ or police officer [receiving benefits pursuant to General Municipal Law Section 207-c] where the employer ?terminates a firefighter or police officer pursuant to Section 71 of the Civil Service Law [Workers? Compensation Leave]? ?

The relationships between CSL Section 71 and GML Sections 207-a or 207-c are sometimes convoluted. To paraphrase Betty Davis? line in the movie All about Eve, ?Put on your seat belts it may be a bumpy ride? as these several provisions of law do not operate seamlessly with one another.

Section 71 gives an appointing authority the power to terminate an individual who has been absent on Workers? Compensation Leave for a cumulative period of one year or longer.² However termination is not ?mandatory? ? it?s a matter of the appointing authority exercising its discretion in such cases. Further, such a termination is not pejorative in nature as an individual having a permanent appointment in the position is eligible for reinstatement to his or her former position, or a similar position, upon recovery from the disability or, if there is no vacancy available, the individual?s name is to be placed on a preferred list.

In contrast, neither Section 207-a nor Section 207-c authorize an appointing authority to terminate firefighters or law enforcement personnel on 207-a or 207-c leave. The appointing authority, however, is permitted to file an application for disability retirement on behalf of such an individual if it is determined that the individual is ?permanently disabled? and is not expected to be able to return to duty or assigned ?light duty.?

Essentially providing leave benefits pursuant to Section 71 and providing salary and related benefits pursuant to Section 207-a or Section 207-c view disabled individuals as remaining employees and subject to recall upon the termination of the disability or, under appropriate circumstances, assigned to perform light duty. In fact, Sections 207-a and 207-c provide for the continuation of compensation until his or her retirement, attaining the mandatory age of retirement or such other time as the individual is no longer qualified, or eligible, for such benefits. Accordingly, separation or termination in the Section 71 sense does not appear relevant in Sections 207-a or 207-c situations. Thus Civil Service Law Section 71 situations are clearly distinguishable from the employee?s status under Section 207-a or Section 207-c where he or she is physically continued on the payroll and thus has not been ?separated.?

Another distinguishing element: Section 71 applies only in situations where the individual is determined not to be permanently incapacitated as a result of an occupational injury or disease. In contrast, Section 207-a and 207-c benefits are provided regardless of whether the individual?s work related injury is determined to have resulted in a temporary disability or a permanent incapacity. However, if the appointing authority believes the individual is ?permanently disabled? it may file an ?employer application? for [appropriate] disability retirement benefits.

The courts, however, might well view the provisions of Section 71 triggered in the event Section 207-a or Section 207-c salary payments are discontinued lawfully by the employer and the individual fails to return to duty, claiming that his or her disability prevents his or her doing so. Under these facts, the individual typically concedes that his or her absence is due to a workers? compensation injury and his or her condition prevents their reporting for duty and thus falls within the ambit of Section 71.

Cases dealing with discontinuing certain benefits to individuals being paid pursuant to Section 207-a or Section 207-c include Chalachan v City of Binghamton, 55 NY2d 989, [contractual right to payment for accrued vacation credits while individual was receiving Section 207-a benefits] and PBA, Village of Walden, 30 PERB 3053, [discontinuation of a past practice that provided ?contractual benefits? for vacations and other leaves to persons receiving Section 207-c benefits].

In Chalachan, the Court of Appeals said that disabled firefighters were entitled to compensation and medical payments as a matter of law but ?any additional benefits must be expressly provided for in the agreement....? The ?power? of such agreements is demonstrated in Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, motion to appeal denied, 93 NY2d 807.

In Plattsburgh, the collective bargaining agreement provided that police officers were to receive the benefits available to firefighters ? i.e., Section 207-a benefits -- in the event they were otherwise qualified for Section 207-c benefits. The benefits under 207-a and 207-c are nearly identical except firefighters receive accidental disability retirement salary supplements. If a firefighter is receiving an accidental or line-of-duty disability retirement allowance, the appointing authority must pay him or her a supplement to bring his or income up to the level of compensation that the firefighter would have earned had he or she not been disabled. This supplement is paid until the firefighter attains the mandatory age of retirement or he or she completes the period of service required before he or she could be terminated or retired. However, Section 207-c does not require municipalities to pay such salary supplements upon a disabled police officer?s retirement.

Plattsburgh city officials claimed they discovered the ?mistaken inclusion of this [207-a] benefit? in the collective bargaining agreement when police officers receiving accidental disability retirement allowances asked the City for the supplement. The City refused to pay the ?firefighter differential supplements? to police officer receiving accidental disability retirement benefits. Arbitrator Howard A. Rubenstein, Esq. ruled that the language used in the collective bargaining agreement controlled and thus the City was required to provide its police officers receiving accidental disability retirement benefits the same ?firefighter differential? mandated by GML Section 207-a to its police officers who retired and were receiving accidental disability retirement allowances otherwise entitled to General Municipal Law Section 207-c benefits. As noted above, the Appellate Division agreed.

Another issue: Sometimes a disabled firefighter or law enforcement officer is found ineligible for Section 207-a or 207-c benefits but eligible for workers? compensation benefits. In other words, the individual is eligible for workers? compensation and thus eligible for Section 71 leave but ineligible for salary continuation and other benefits pursuant to either General Municipal Law 207-a or 207-c. This situation could arise because the Workers' Compensation Law features a more lenient and more inclusive standard of covered activity than is intended to be covered and compensated under GML Sections 207-a or 207-c [see Balcerak v County of Nassau, 94 NY2d 25].³

On the other hand, it is possible to expand upon the GML 207-a or 207-a benefits available to disabled firefighters and law enforcement personnel though collective bargaining as the Plattsburgh decision demonstrates. Thus it is possible that an individual could be denied Workers? Compensation Law benefits and yet be entitled to GML Sections 207-a or 207-c type benefit as a result of collective bargaining. For example, slips and falls on the way to work are typically excluded as qualifying for Workers? Compensation Law benefits yet could be a ?covered event? for the purposes of GML Sections 207-a or 207-c under the terms of the collective bargaining agreement.

Residence requirements are also a consideration when it comes to evaluating an individual?s eligibility for GML Sections 207-a or 207-c benefits. Kevin O'Connor, a Town of Clarkstown police officer, was terminated from his position by the Police Commission pursuant to Section 30.1.d of the Public Officers Law because he "ceased to be an inhabitant within the geographical restrictions" set by law [O'Connor v. Police Com'n of Town of Clarkstown , 221 A.D.2d 444].⁴

O'Connor, however, was receiving disability benefits pursuant to Section 207-c of the General Municipal Law following a work-related injury at the time he moved to Warren County. Significantly, the Appellate Division ruled that "the fact that O'Connor was disabled and entitled to the benefits of General Municipal Law Section 207-c(1) does not render Public Officers Law Section 30 inapplicable.?

In a case involving disability benefits under Section 207-a, which provides firefighters injured on the job with benefits similar to those available to police officers pursuant to Section 207-c, the court decided that Section 207-a benefits were only available to firefighters while they remain members of the fire department. Payments are not made if a disabled firefighter ceases to be an employee of the fire department [Robinson v Cole, 193 Misc 717].

Significantly, once GML Section 207-a or 207-c benefits are forfeited because of the loss of qualifying employment, they are forever lost. In O?Connor?s situation, his re-establishing his residence in Rockland or a contiguous county would not automatically reinstate his Section 207-c benefits.

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¹ Volunteer firefighters injured in the line-of-duty are entitled to disability benefits pursuant to the Workers? Compensation Law if the volunteer demonstrates that he or she has suffered a loss of earning capacity [Young v Moyers Corners F.D., 243 A.D.2d 883]. As set out in Section 3.8 of the Volunteer Firefighters Benefits Law, "earning capacity" means "the ability of a volunteer ... to perform on a five-day or six-day basis ... the work usually and ordinarily performed by him in his remunerated employment ... or in the practice of his profession." [See, also, Allen v. Brentwood Fire Dist., 1 A.D.3d 657]. Volunteer ambulance workers are provided with similar benefits pursuant to the Volunteer Ambulance Workers' Benefit Law.

² Civil Service Law Sections 72 and 73 address leaves of absence and terminations from such leaves where the underlying injury or disease is not job related.

³ Similarly, a decision by an appointing authority regarding an individual?s eligibility for Section 207-a or Section 207-c benefits and a decision by the State Comptroller concerning that individual?s eligibility for disability retirement benefits are mutually exclusive [Cook v City of Utica, 88 N.Y.2d 833].