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In re Massi12/22/2004
nicipal Law § 207-c ). Pursuant to GML § 207-c(3), if a municipalities' doctors determine that a police officer is "unable to perform his regular duties as a result of such injury or sickness but is able, in their opinion, to perform specified types of light police duty, payment of the full amount of regular salary or wages, as provided by subdivision one of this section shall be discontinued with respect to such policeman if he shall refuse to perform such light police duty ....." (GML § 207-c ). Here, Dr. Klahr's report was obviously written with this statute in mind when he opined that he thought light police duty might be beneficial for petitioner.
Petitioner argues that the case of Matter of Curley v. Dilworth, 96 AD2d 903, app. dismissed, 63 NY2d 770, controls the disposition of this proceeding. In that case, petitioner injured his back as a result of three car accidents, which occurred while he was on duty as a police officer. As a result of his back injury , petitioner stopped reporting to work as of December, 1980. As in the case at bar, petitioner's doctor had advised respondents that petitioner was not fit for duty whereas respondents' doctors examined petitioner and found that he was suffering from a mild partial disability and was capable of returning to work and performing light duty. After two additional examinations of petitioner by respondents' doctors, which allegedly substantiated the prior finding that petitioner was capable of performing light duty, petitioner was directed by respondents to return to work on April 6, 1981. During this time period, petitioner was receiving his salary because of the department's characterization of petitioner's illness as ordinary sick time rather than line of duty injury.
In Curley, the Appellate Division, Second Department, affirmed the Supreme Court's holding that petitioner was entitled to an evidentiary hearing. However, the Appellate Division made clear that the hearing was not to be held pursuant to Civil Service Law § 75(2) (which was the ruling of the trial court), but rather, petitioner had to be afforded a hearing pursuant to GML Law § 207-c. In that case, the Appellate Division, Second Department followed the rule established by other courts that once a police officer has established prima facie entitlement to GML § 207-c benefits, a municipality should provide the police officer with an adversarial hearing prior to denying benefits. (Matter of Curley v. Dilworth, 96 AD2d at 904, app. dismissed, 63 NY2d 770; Matter of Schenectady County Sheriff's Benevolent Association v. McEvoy, 124 AD2d 911). During such a GML § 207-c hearing, it is also an appropriate line of inquiry to determine whether or not petitioner is fit for limited duty. (Matter of Curley v. Dilworth, 96 AD2d 903, app. dismissed, 63 NY2d 770). Indeed, there are cases which suggest that a court would find highly suspect respondents' decision to assert disciplinary charges against petitioner for his failure to follow orders he claims he was medically unable to follow. For example, in Fasanaro v. County of Rockland, 166 Misc 2d 152, aff'd, 237 AD2d 436, a corrections officer was seen by a doctor and diagnosed with adjustment disorder with mixed mood-anger and depression. The corrections officer's doctors, by letter dated November 17, 1994, wrote to the Superintendent of the Jail and stated that based upon their professional opinion, petitioner should be placed on medical leave for job related stress.
The Superintendent, prior to receiving the November 17, 1994 letter, had determined that petitioner was not suffering from job related stress and ordered petitioner to submit to a medical exam to determine his fitness to resume duties. The Superintendent's doctor found
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