The Petitioner, Filippo Lombardo, submits this motion seeking a judgment and order pursuant to Article 78 of the CPLR, and more specifically upon sections 7803[3] and 7804, reversing and/or vacating the determination by Respondents, Monroe County and Monroe County Sheriff, which found that Petitioner was not entitled to benefits under General Municipal Law §207-c and ordering that Petitioner be provided such benefits and made whole for any accrued leave time which he has been forced to utilize during his period of disability, along with such other and further relief as the Court may deem just and proper. [*2]

General Municipal Law provides benefits to an officer who is injured in the performance of his duties.

Any . . . deputy sheriff . . . who is injured in the performance of his duties . . . so as to necessitate medical or other lawful remedial treatment shall be paid by the municipality by which he is employed the full amount of his regular salary or wages until his disability arising therefrom has ceased, and, in addition such municipality shall be liable for all medical treatment and hospital care necessitated by reason of such injury or illness.

(General Municipal Law §207-c[1]). "[I]n order to be eligible for section 207-c benefits, a covered municipal employee need only prove a "direct causal relationship between job duties and the resulting illness or injury" (Theroux v Reilly, 1 NY3d 232,243-44 [2003][citing Matter of White v County of Cortland, 97 NY2d 336,340 [2002]). In order for Petitioner to be eligible for benefits under §207-c, he must prove a direct causal relationship between job duties and the resulting injury.

The Petitioner asserts that Respondents determination to deny benefits under GML §207-c was made in violation of lawful procedures because there was no due process; the determination was affected by an error of law because the Respondents applied an incorrect and heightened standard with respect to causality; and the determination was arbitrary and capricious because the Workers' Compensation Board and medical reports found the disability was caused by a work-related injury.

The statute provides no definitive procedure that must be followed in determining whether an employee is entitled to benefits under GML §207-c. Nor does the statute specify a procedure for challenging a determination by a municipality. The Court of Appeals states that a municipality is free to fashion a hearing remedy for challenging a determination, so long as its procedure affords due process (Park v Kapica, 8 NY3d 302, 311 [2007]; City of Watertown v State of NY Pub. Empl. Relations Bd., 95 NY2d 73, 80-81 [2000]). In this case, the Respondents established specific procedures for reporting, confirming and determining whether an officer was injured in the performance of his duties.

The Office of the Sheriff issued a Multi-Bureau General Order No. 18-07 effective March 1, 2007, distributed to all personnel, specifying sick leave procedures (MBGO 18-07). This document requires any employee injured during employment that results in absence from duty to immediately seek medical attention and notify the supervisor. "The Undersheriff's Office will be notified through the chain of command within twenty-four hours of the injury." The on-duty injured employee is required to request a supervisor respond to the scene, submit a Report of Employee Injury, submit a written statement from the attending physician, and report to the Sheriff's physician as soon as possible. The immediate supervisor of the injured employee is required to notify the Undersheriff's Office within 24 hours of any injury resulting in absence from duty. The order requires the supervisor to code the time card "with a "D" for any time lost following the actual day of injury, pending the approval of the use of "Z" time through the Undersheriff's Office." There is a Note indicating "The Undersheriff's Office shall notify the appropriate commanding officer and applicable administrative payroll clerk that Z-time has been approved." [*3]

The Petitioner participated in tryouts for the Special Response Team on March 4, 2007. When tryouts were completed he reported back to his job in the jail. Later that day he was involved in a "shakedown" on the fourth floor of the jail. On March 16, 2007 the deputy reported an injury to his knee to his supervisor. The supervisor ordered Petitioner to report to his physician and the Department physician for evaluation. Petitioner filed a Report of Employee Injury form on March 16, 2007. The deputy saw Dr. Stefanich on March 22, 2007. The supervisor filed a Special Report on March 23, 2007.On March 23 and March 26 there were follow up e-mails between Petitioner and Major Krenzer regarding more details. On March 23, 2007 the deputy was examined by Dr. Shmigel, the Department physician. On November 13, 2007 the Workers' Compensation Board issued a decision finding Petitioner had a work related injury to his left knee and authorizing coverage of all necessary related medical care. Surgical intervention was authorized by the Workers' Compensation carrier on February 8, 2008. On February 14, 2008 Petitioner advised Undersheriff of his scheduled surgery and expected time to be on crutches. On February 15, 2008 an e-mail from the Admin. Asst to the Undersheriff advised "the Undersheriff indicated that at this time this incident is not being designated as 207c (z time)."The Article 78 proceeding was commenced on April 21, 2008.

The statute requires payment to a sheriff, who is injured so as to necessitate medical or other lawful remedial treatment, until his disability arising from the performance of his duties has ceased. The Petitioner, although claiming injuries to his knee on March 4, 2007 during Special Response Team try-outs, never reported any injuries caused during the try-outs at the time of the alleged injury. There was a General Order in place for the report of injuries while on-duty so that reports could be made documenting the injury and a doctor evaluation could be conducted as soon as possible. The procedures in place by the Sheriff's Office afford the Petitioner the opportunity to report and document any on-duty injuries. On March 4, 2007 the Petitioner did not report any injury, returned to his position in the jail, responded to a shakedown in the jail that afternoon, and continued to work his regular shift. Thereafter, the Petitioner continued to perform his regular job duties until notifying his supervisor on March 16, 2007 that he had injured his knee during the March 4, 2007 try-outs.

The Petitioner's circumstances do not meet the requirements set forth in GML §207-c of an injury during the performance of his duties so as to necessitate medical treatment, where payments shall be continued until his disability arising therefrom has ceased. The Petitioner continued to work the day of the alleged injury and thereafter until he was notified in February 2008 that Workers' Compensation had authorized surgery. The Undersheriff indicated in February 2008 that "at this time this incident is not being designated as [GML §]207-c (z time)."

Based upon the facts presented, the Respondents determination to deny GML §207-c benefits to Petitioner did not violate lawful procedures, was not affected by an error of law, and was not arbitrary and capricious. The Workers' Compensation Board determination that Petitioner was entitled to coverage as a work-related injury does not automatically entitle Petitioner to benefits under GML §207-c (Matter of Balcerak v County of Nassau, 94 NY2d 253 [1999]; Youngs v Village of Penn Yan, 291 AD2d 852 [4th Dept. 2002]). The MBGO 18-07 put in place procedures for assessing and reporting on the job injuries to the Undersheriff's Officer for determination as to [*4]whether an employee was entitled to benefits under GML §207-c. The Petitioner reported an alleged injury caused during the performance of his duties 12 days after the occurrence. The Respondents had no opportunity to investigate or have the Petitioner's alleged injury evaluated. Further, the Petitioner did not require treatment of the injury as required to implement the payment benefits afforded by §207-c, whereby the Petitioner received full salary until his disability arising from the injury ceases. In fact, the Petitioner worked the day of the alleged injury and each day after the alleged injury prior to reporting it to his supervisor, and worked for almost an entire year before seeking §207-c benefits. There was no need for continued payment of Petitioners salary until his disability ceased because Petitioner remained at work on a full-time schedule (see Park v Kapica at 310).

The Petitioner has the burden to prove a "direct causal relationship between job duties and the resulting illness or injury" and that he is entitled to §207-c benefits (see Theroux v Reilly, 1 NY3d 232,243-44 [2003]. There is no proof that Petitioner has met the requirements for benefits under GML §207-c. Under the proof and documentation presented, there is no basis to reverse or vacate the Respondents determination that Petitioner was not entitled to benefits under GML §207-c. The relief requested by the Petitioner in his Article 78 Petition is DENIED.

SUBMIT ORDER

Counsel for the Respondents, Monroe County and Monroe County Sheriff, shall submit an Order, with this Bench Decision attached, upon approval of all Counsel.

Dated:June 6, 2008

Rochester, New York

________________________________________

Thomas A. Stander

Supreme Court Justice