Workers’ Compensation Board’s finding that the injured volunteer firefighter’s condition had not changed mandates the continuation of the benefits being provided pursuant to the Volunteer Firefighters’ Benefit Law

Workers’ Compensation Board’s finding that the injured volunteer firefighter’s condition had not changed mandates the continuation of the benefits being provided pursuant to the Volunteer Firefighters’ Benefit Law
Giudi v New Paltz Fire Dept., 2012 NY Slip Op 08621, Appellate Division, Third Department

The genesis of this appeal was volunteer firefighter Jason Giudi's claim that he had suffered a head injury in the line of duty that adversely affected his ability to continue to work in his job in his regular capacity which resulted in a reduction in his income.

The Workers' Compensation Board ultimately found that the Giudi was permanently disabled and had been deprived of more than 75% of his earning capacity. Accordingly, the Board awarded Guidi benefits pursuant to Volunteer Firefighters' Benefit Law §10(1).*

Several years later the case was reopened by the Workers’ Compensation Board to address the New Paltz Fire Department's contention that Giudi 's condition had changed within the meaning of Volunteer Firefighters' Benefit Law §13** and thus Giudi’s entitlement to benefits should be reconsidered.

The Board sustained its earlier determination that Giudi was, and continued to be, permanently disabled. The Fire Department then challenged the Board’s decision but the Appellate Division dismissed its appeal.

Noting that substantial evidence supports the Board's finding that Giudi "remains unable to continue performing either the employment duties usually and ordinarily performed at the time of injury or those required by a reasonable substitute,” the Appellate Division affirmed the Board’s decision.

According to the ruling, Giudi testified that his work as a chef required substantial amounts of education and training and he has been forced to perform less mentally demanding work since his injury.

Noting that a clinical neuropsychologist who examined Giudi had opined that Giudi's “cognitive impairments continued to prevent him from working as a chef or military police officer,” the court said that the Board was free to credit this evidence --  “which provided ample justification for its finding that [Giudi] continues to suffer from a disability that deprives him of more than 75% of his earning capacity.”

* §10 of the Volunteer Firefighters Benefit Law provides for the payment of benefits in the event a volunteer firefighter suffers a permanent partial disability benefits as a result of his or her suffering an injury in the line of duty.

** §13 of the Volunteer Firefighters Benefit Law provides for the reclassification of a disability upon proof that there has been a change in the claimant’s condition

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08621.htm

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Failing to file a timely Article 78 petition bars consideration of the merits of the complaint

Failing to file a timely Article 78 petition bars consideration of the merits of the complaint
Gress v Brown, 2012 NY Slip Op 08564, Court of Appeals

In 2003, the Legislature enacted the Buffalo Fiscal Stability Authority Act (the Act) in consideration of the fact "that the city of Buffalo is facing a severe fiscal crisis, and that the crisis cannot be resolved absent assistance from the state."*

On April 21, 2004, the Buffalo Fiscal Stability Authority (BFSA) adopted its Resolution No. 04-35, which directed that "effective immediately, there shall be a freeze with respect to all wages, wage rates, and salary amounts for all employees of the City and all Non-exempt Covered Organizations, to the full extent authorized by the Act." 

This wage freeze, said the Court of Appeals, was intended "to prevent and prohibit anyincrease in wage rates, wages or salaries for any employee of the City or a Non-exempt Covered Organization," [emphasis supplied by the Court].

The Gress plaintiffs [Gress] were at-will, seasonal employees and commenced this class action alleging that the City violated the City of Buffalo's Living Wage Ordinance when it implemented BFSA’s Resolution 04-35. The Appellate Division agreed, holding that that the BFSA did not have the authority to freeze the wages of the Gress plaintiffs [see 82 AD3d 1654].

Significantly, Gress did not quarrel with the wage freeze generally but contested only its application to them through the BFSA's administrative action. Such a challenges, said the Court of Appeals, should have been raised by commencing a timely CPLR Article 78 proceeding naming BFSA as a respondent. Gress failed to file such a timely petition pursuant to Article 78 and was thus, said the court, barred from challenging the BFSA’s action or its authority to so act.

Rejecting the dissent’s argument that the BFSA, in fact, "had no authority to freeze the wages due the Gress plaintiffs pursuant to the Living Wage Ordinance," the majority ruled that “whether or not authorized to do so, the BFSA froze plaintiffs' wages and once this happened, the City and Mayor were bound by its action,” not having filed a timely challenge to such action.

* Public Authorities Law §3850-a

The decision is posted on the Internet at

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08564.htm