Friday, August 9, 2013

Denial of Benefits: Line of Duty Disability for EMT Workers

If NYC Emergency Medical Technicians are disabled because of an injury which happens on the job, they are entitled to a life time 3/4's benefit. The benefit is offset by any associated Workers Compensation payments. The precise wording of the statute is listed below. The key words in the statute are "shall be paid". That means from the date an EMT is disabled, NYCERS has an obligation to pay that person a 3/4's benefit. NYCERS is not given any discretion in this matter except to determine that such worker is disabled because of a line of duty injury.

Line of Duty Disability Statute for NYC EMT's

§ 607-b. Performance of duty disability retirement. a. Any member of the New York city employees' retirement system who is employed by the city of New York or by the New York city health and hospital corporation in the position of emergency medical technician or advanced emergency medical technician, as those terms are defined in section three thousand one of the public health law, who, on or after March seventeenth, nineteen hundred ninety-six, becomes physically or mentally incapacitated for the performance of duties as the natural and proximate result of an injury, sustained in the performance or discharge of his or her duties shall be paid a performance of duty disability retirement allowance equal to three-quarters of final average salary, subject to section 13-176 of the administrative code of the city of New York.

Now it has come to my attention that NYCERS has convinced a trial judge, Arthur M. Schack, in the Second Department that a disabled EMT worker must be employed as an EMT worker to be eligible to file for this benefit.

FDNY had terminated this particular EMT member for medical reasons under Section 72 of the state civil service law. Subsequently, when she tried to apply for a S.607-b disability, NYCERS told her she was not eligible to file because she was no longer working for FDNY.

Since the statute has no filing requirement, this must be a rule adopted by NYCERS. A rule that allows NYCERS to deny to member a benefit that the legislature granted to him/her.

Doctors Council and the Limits on NYCERS Rule Making Authority

Now, the NYS Court of Appeals has previously addresses this issue in Doctors Council v. NYCERS 71 N.Y. 2nd 669 (1988). NYCERS had tried by rule to exclude part-time city workers from membership in the retirement system when the statute stated in the definition of membership "All persons in city service" and "service paid for by the city". Let me quote from the decision:

The NYCERS Board of Trustees surely lacks the authority to create retirement eligibility; it likewise lacks the power to disentitle employees whom the Legislature has endowed. To countenance the latter, as has been urged here by the City, would allow the agency to, in effect, amend the heart of this statute. "An administrative agency cannot by regulatory fiat directly or indirectly countermand a statute enacted by the Legislature" (Servomation Corp. v State Tax Commn., 51 N.Y.2d 608, 612, supra; see, Kurcsics v Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459, supra). Where, as here, the statute described the particular class of persons, "an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded" (McKinney's Cons Laws of NY, Book 1, Statutes § 240; see, Eaton v New York City Conciliation & Appeals Bd., 56 N.Y.2d 340, 345). Thus, the resolution of the NYCERS Board of Trustees cannot be legitimized by judicial ratification (see, Matter of Industrial Commn. of State of N. Y. v Five Corners Tavern, 47 N.Y.2d 639, 646-647).

This binding decision clearly prohibits NYCERS from creating a rule which "disentitles" a member's right to a benefit.

I have perviously commented on denial of benefits by NYCERS. This is again an example of the abuse of power by NYCERS and its legal staff directed by Karen Mazza. This woman is a total disaster and the trustees must relieve her of her duties.

Needless to say the member did not have the resources to proceed further in the courts and has lost her statutory benefit. NYCERS has again crushed a member.

Sunday, August 4, 2013

A Plea to Bill De Blasio, John Liu, and Scott Stringer.

I know this posting is probably a waste but I have to try one last time. I spent over thirty years trying to help the members and retirees of NYCERS and it drives me crazy when I see the current management trashing them.

In a June 30, 2013 posting I wrote about how NYCERS and in particular, Karen Mazza, was crushing a disablity retiree.

I am making a direct appeal to Bill De Blasio, John Liu, and Scott Stringer, and the other members of the NYCERS Board of Trustees to correct Mazza's mistake. If this was March 1, 2005 when I was executive director, NYCERS would have given this retiree his legal due process. I am asking you now as the head of the agency to do the same.

Two days ago I received a copy of a new letter from Mazza concerning this case. This letter is dated July 30, 2013 and is in response to a July 9, 2013 letter from the original lawyer asking the trustees to correct a NYCERS error. The error occurred in 1990 when NYCERS did not process the retiree's application for accident disability under S.507.

In a June 18, 2013 letter, Mazza had denied an initial April 19, 2013 request from the lawyer. Mazza had stated that the Medical Board had determined that the incident was not an accident and therefore there was no need to process the member's S.507 application.

In the July 30, 2013 letter Mazza was forced to apologize for the false statement she made in her first letter. She now claims:

What I should have written was: "Since the Medical Board had already determined that the on-duty event did not aggravate the condition he claimed to be disabling, he was not eligible to be considered under S.507 of the RSSL for accident disability."

As an aside, this woman is a licensed attorney getting paid a lot of money. To any competent lawyer this correspondence above is a hard reflection on Mazza's competence as lawyer. It reminds me of a clip from a deposition from years ago. You can read it below.

We also can see Mazza's dubious footwork in the following sentence trying to shift responsibility for her words to the outside lawyer:

I apologize for this error. Nevertheless, on the basis of our prior correspondence about this case, you should have been aware that the Medical Board's determination was related to the causation issue rather than the accident/incident issue.

While Mazza's original statement was false, her new statement about causation is both false and absurd. If the Medical Board finds a member not disabled under S.605, it is not possible for the Board to determine whether the incident caused a nonexistent disability. The Board is not authorized to make hypothetical determinations.

In addition, the final determinations on causation and accident are made by the Board of Trustees. Since the member, under S.605, was not disabled, the Trustees never addressed the causation and/or accident issues for this member nor made a final determination on these issues. The member had no opportunity at that time to argue these two issues before the Board of Trustees.

Since causation was not dealt with in the S.605 process, it is absolutely clear the S.507 application should have been processed in 1990 but it was not. No notice of denial was given to the member in 1990. Since NYCERS must correct all errors, it must process the original S.507 application.

The Medical Board must review the Social Security Administration disability decision and the documentation that supported that decision. They must accept the disability determination made by the Social Security Administration in spite of the fact that it is contrary to their own medical determination. They then must in good faith make recommendations on causation and accident relative to the disability and the claimed incident.

The Medical Board's recommendations must then be submitted to the Board of Trustees to make the decision about whether the incident caused the disabilty and whether the incident was an accident. The retiree has the right to argue his case before the trustees.

In closing, I am asking Bill De Blasio, John Liu, Scott Stringer, and the other trustees to do the right thing.

From an old Mazza deposition, "What I Wrote is Not What I Meant."

          16          Q.    I will direct your attention to the

          17     upper part of the memo.

          18                What do you mean you're uncomfortable

          19     if anybody in-house asks to see your deleted

          20     E-mails; uncomfortable about what?

          21          A.    I wanted to know if anybody else was

          22     asking to look at those deleted E-mails.

          23          Q.    That wasn't my question.  I understand

          24     that.  That is what it says.  My question to you

          25     is, why were you uncomfortable about this


           1                            Mazza

           2     information being recoverable, the deleted

           3     E-mails?

           4                MR. MARKS:  Objection to the form.

           5          A.    I wasn't uncomfortable with it being

           6     recoverable.  I was uncomfortable with other

           7     people asking to see it.

           8          Q.    I am reading what you wrote.  "I am

           9     somewhat uncomfortable with this info being

          10     recoverable."  That is not my words.  That is what

          11     it says here.

          12                My question is, when you wrote this,

          13     why did you say that?  What were you uncomfortable

          14     with about having this information, that is the

          15     deleted E-mails, being recoverable?

          16                MR. MARKS:  Objection to the form.

          17          A.    That is not -- what I wrote is not what

          18     I meant.  When I say recoverable, I meant being

          19     seen by somebody else.

          20          Q.    Well, you couldn't see it if it wasn't

          21     recovered.

          22          A.    Right.

          23          Q.    Why were you uncomfortable that the

          24     E-mails that you had deleted would be seen by

          25     somebody else "in-house"?  Why?


           1                            Mazza

           2          A.    My purpose in writing that paragraph

           3     was, we were in the middle of a DOI investigation

           4     and I wanted to know if anybody else was asking

           5     Kin to show them my deleted E-mails.

           6          Q.    You're not answering my question.

           7                I asked you, using your own words, why

           8     were you uncomfortable with this information being

           9     recoverable.  I am asking you why.

          10          A.    I answered you and said that --

          11          Q.    No, you haven't answered me.  Why were

          12     you uncomfortable; because it would show that you

          13     doctored a resume?

          14          A.    No.

          15          Q.    Why were you uncomfortable; because you

          16     deleted E-mails and it related to a subject that

          17     you were sitting on a panel?

          18          A.    What I said to you in my answer

          19     previously was that what I wrote is not what I

          20     meant.

          21          Q.    You're a lawyer, Ms. Mazza.  The trade

          22     of a lawyer is the usage of words.  I want to

          23     know, what did you mean when you used the words, I

          24     am somewhat uncomfortable with this information

          25     being recoverable?  At that time, what did you


           1                            Mazza

           2     mean?

           3                MR. MARKS:  Objection to the form.

           4          Q.    What did you mean?

           5          A.    What I meant was, I want to know if

           6     Mr. Murphy was asking to see my deleted E-mails.

           7     That is what I meant.