Labor & Employment Law

Discontinuing Section 207-a salary supplement paid to retired firefighter not authorized by statute

Discontinuing Section 207-a salary supplement paid to retired firefighter not authorized by statute
Matter of Lance McGowan v Fairview Fire Dist. v Fairview Fire District, 2008 NY Slip Op 04522, Decided on May 13, 2008, Appellate Division, Second Department

In deciding McGowan v Fairview Fire District, the Appellate Division distinguished between the status of an ?active duty firefighter? receiving benefits pursuant to Section 207-a of the General Municipal Law and a ?retired firefighter? receiving benefits pursuant to that statute.

Fairview firefighter Lance McGowan suffered a job-related injury in 1993 and subsequently was determined eligible for performance of duty disability retirement pursuant to Retirement and Social Security Law §363-c. McGowan and the District later entered into a stipulation that, among other things, obligated the District to pay McGowan a wage supplement pursuant to General Municipal Law §207-a(2).

The relevant portion of §207-a(2) insofar as McGowan was concerned provides that the municipality or fire district that employed the disabled firefighter shall pay the firefighter the difference between the amounts received under RSSL §363-c and the amount of his or her regular salary or wages. This supplemental payment was to be continued until the firefighter retired pursuant to RSSL §363-c attains the relevant mandatory service retirement age or performed the relevant period of service specified by applicable law for the termination of his or her service.

In December 2004 McGowan examined by an independent medical examiner administered at the District?s request. In February 2005 the District notified McGowan that it was terminating his General Municipal Law §207-a(2) benefits ?because he was not currently suffering from a work-related disability.? McGowan was told that could request a hearing to challenge this determination.

McGowan appealed, contending that the District lacked the statutory authority to terminate his General Municipal Law §207-a(2) benefits based upon a change in his medical condition. The hearing officer, however, recommended that the District terminate McGowan?s §207-a(2) benefits ?if it determined that his medical condition had improved to such an extent that he was no longer disabled.?

The Supreme Court determined that the District lacks the statutory authority to terminate McGowan?s §207-a(2) benefits on the basis of alleged improvements in his medical condition. The Appellate Division agreed.

The Appellate Division pointed out that ?benefits afforded firefighters pursuant to General Municipal Law §207-a are remedial in nature and thus that statute is to be liberally construed in their favor.?

While §207-a(1) provides that the municipality or fire district ?shall not be liable for salary or wages payable to such a fireman, or for the cost of medical or hospital care or treatment furnished, after such date as the health authorities or such physician shall certify that such injured or sick fireman has recovered and is physically able to perform his regular duties in the company or department,? §207-a(2)does not include a similar limitation.

The absence of a parallel provision in §207-a(2), said the Appellate Division, indicates that the Legislature did not intend to grant municipalities the authority to terminate benefits paid under that subsection on the basis of improved medical condition. Thus the District did not have any authority to terminate the McGowan?s §207-a(2) benefits on that basis.

Another important element: RSSL §363.i provides that any benefit provided pursuant to it ?shall not be considered as an accidental disability benefit within the meaning of section three hundred sixty-four of this article.? and ?Any benefit payable pursuant to the workers' compensation law to a member receiving a disability allowance pursuant to this section shall be in addition to such retirement for disability incurred in performance of duty allowance.?

This is significant inasmuch as Retirement and Social Security Law §364 prohibits the payment of both ?pensions for accident? and benefits payable as the result of the same event.

Full post as published by New York Public Personnel Law on May 20, 2008 (boomark / email).