Kevin Nowack was a firefighter working for Ridge Road Fire District and claimed that he injured his back in 2002 when a firetruck hit a “low spot” or manhole cover depression on a road. Nowack sought General Municipal Law 207-a[1} benefits for a line of duty injury. As required he prepared an “accident-sickness packet” The fire district reviewed the packet and denied him GML 207-a{1} benefits concluding that the line of duty injury he claimed was actually a pre-existing one. As per the Collective Bargaining Agreement (CBA) Nowack requested a hearing to review the District’s denial of benefits. The CBA directed that a hearing be held pursuant to NYS Administrative Procedure Act and that “it is the empolye’s burden tto prove he is entitled to GML benefits.” Originally the hearing officer Michael Schiano ruled for the firefighter and wrote that the standard of review was whether substantial evidence was presented to override the District’s decision. When the District appealed the Supreme Court directed the hearing officer to decide whether the District’s ruling was supported by substantial evidence. Again the hearing officer ruled for the firefighter. When the district challenged the decision again the Supreme Court ruled for the District holding that the decision to deny benefits was supported by substantial evidence despite conflicting testimony in the record.

The issue was which decision must be supported by substantial evidence? 

The denial of GML 207-a benefits after the District’s review of Nowack’s “accident-sickness packet” or

The decision of the hearing officer that the District determination to deny benefits was not supported by substantial evidence. 

In a 4 -3 the majority held that the original decision of the District must be supported by substantial evidence. They wrote: “the parties here agree, and we therefore assume, that, as applied to his case, the statute requires the District’s denial of benefits to be upheld if substantial evidence supports it. Therefore, in accordance with this standard and in light of the CBA’s terms, the independent hearing officer was required to give deference to the District’s decision and Nowack bore the burden of establishing that the District’s denial determination had not be supported by substantial evidence.”

Judge Lippman writing for the three dissenting judges: “however, the majority is mistaken; the parties here are not in agreement as to whether the District’s initial determination to deny benefits was to be upheld if substantial evidence supported it. As the majority notes, state Administrative Procedure Act 306(1) … provides that the substantial evidence standard is to be applies “upon consideration of the record as a whole.” The record “as a whole” however, did not even exist at the time the District made is determination; rather, the record was created at the hearing conducted by the hearing officer.” 

The dissent opined that the Hearing Officer’s decision to allow GML 207-a benefits should be reinstated. 

Opinion: In CPLR Article 78 the “substantial evidence” standard is applied when a hearing has been conducted but in this case it was applied to the “accident-sickness packet” process. Would review of paperwork bepreferable to review of a full hearing with all paperwork and additionally evidence from doctors and witnesses?