Matter of the Ridge Road Fire District v Michael P. Schiano, as Hearing Officer
In this Article 78 case, Kevin Nowak applied for benefits after experiencing back pain while operating a vehicle in response to a fire alarm in November 2002. Following this incident, Nowak applied for disability benefits and was denied. He then had a hearing which resulted in the Hearing Officer determining that the respondents presented substantial evidence that the disability was related to the performance of Nowak’s duties. An Article 78 proceeding was then commenced in Supreme Court. The Court in turn annulled the order due to the Hearing Officer applying an incorrect standard of review in his analysis of the case based on whether the respondents presented substantial evidence to override petitioner’s determination instead of focusing on whether petitioner’s determination was supported by substantial evidence. The matter was then resubmitted to the Hearing Officer. This time the Hearing Officer concluded that the denial of benefits to Nowak was not supported by substantial evidence.
The Ridge Road Fire District then commenced an Article 78 proceeding and the Court granted the petition concluding that there was substantial evidence to support the denial of benefits to Nowak and that the Hearing Officer’s determination was arbitrary and capricious.
The Court feels that the original decision of the Court was in error because Nowak was able to prove that his job duties were a direct cause of the disability. Nowak’s battalion chief testified that he observed Nowak to be in pain after returning from the fire alarm in November 2002. The determination that the disability was solely related to a prior non-work-related injury was not supported by substantial evidence and therefore the determination that the Hearing Officer’s decision to that effect was arbitrary and capricious was in error. Since Nowak’s operation of the work vehicle was a direct cause of his disability he should be awarded benefits.
Accordingly, the Supreme Court reversed the judgment appealed, dismissed the petition and reinstated the determination of respondent Hearing Officer granting Nowak benefits.
Read more about this Article 78 appeal for benefits for an on duty injury.
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First, the video evidence showed that Smith was compliant and not aggressive immediately prior to being sprayed and contradicts Respondent’s written statement. Respondent’s use of the OC spray was prohibited under the Directive 4501R-E. Directive 4501R-E states “that dispersal of hand-held chemical agents is authorized to defend oneself, another employee, inmate or visitor, to maintain the safety and security of the facility, or to enforce Department rules where necessary to promote the good order and safety of the facility.” Also, Respondent’s use of the OC spray was impermissible because the directive states that use of the spray less than three feet away from the intended target is impermissible because spraying the OC within close range can cause severe eye and skin irritation or other injuries.
Lastly, Respondent’s written statement and use of force report was false and misleading and he submitted the report approximately eleven days after the incident, on October 27, 2008. When an officer is in a use of force incident, a report must be submitted before leaving the facility on the day of the incident. The only exception to this is if you are injured than the use of force report can be submitted at a later time. Respondent claimed that he sustained an injury during the use of force incident and was immediately taken to the hospital. Respondent acknowledges that he may have been back to work before October 27, but cannot provide any plausible reason as why he did not submit the use of force report earlier.
An off-duty NYPD detective fired his weapon at a vehicle, but the driver was not struck nor harmed. The officer and City were found not liable after trial.
A Nassau County Police Officer candidate failed to meet the Municipal Police Training Council standard for blood pressure and was disqualified in August 2013. The candidate suffered from “White Coats Syndrome” which is an elevated blood pressure in a clinical setting. The candidate had no history of hypertension with his primary physician. The Nassau County Civil Service Commission agreed to recheck the candidate’s blood pressure and found it to be within the MPTC standards. The candidate’s disqualification was overturned in October 2013.
After filing a NYPD Psych DQ appeal to the New York City – Civil Service Commission some candidates are granted a Hearing before the Commission. If you receive this hearing Kevin will prepare with you in his office for approximately two hours to again discuss the issues that are going to determine the outcome of your case. He will speak with you about proper attire and grooming when attending the hearing. He will speak in depth, so you fully understand the function of the New York City – Civil Service Commission and what type of issues they would like to have resolved in order to have your disqualification reversed.