“People Starved Out”: Westchester Sanctioned For Docking Injured COs’ Pay
By Mark Toor
November 15, 2010 – The head of the Westchester Correction Officers’ Benevolent Association hopes that a recent court order will force the county to stop cutting off pay to Correction Officers who have been injured in the line of duty.
“When officers are injured, [county officials are] walking away from the provisions of the contract,” union President Alonzo West said in an interview last week. He said he hoped to sit down with attorneys for the county to discuss the way these cases should be handled.
Law Requires Pay
General Municipal Law 207-c requires that Correction Officers, along with law-enforcement and other first-responder-type workers, be paid “salary, wages, medical and hospital expenses” if they are injured in the performance of their duties until they retire or return to work. The county has the right to examine employees on 207-c leave to see whether they are healthy enough to return to work. Some of the officers contest a back-to-work order from county doctors.
Mr. West said the county pays medical expenses for members who contest the back-to-work orders, but puts them on leave without pay after their accumulated vacation and sick time—usually a maximum of five weeks—runs out.
The arbitration process takes three or more months, at the rate of two or three hearings in a three-month period, Mr. West said. With no money coming in to support their families, he said, some officers are forced to come back to work regardless of their illness or injury even as their cases are being adjudicated. “People are being starved out,” he said. “…It creates an unsafe situation. In a correctional facility, you need to be fully alert and healthy.”
“Contesting Cases Automatically”
“Westchester seems to be contesting 207-c cases automatically these days,” said Mercedes M. Maldonado, an attorney who represented a Correction Officer who recently won at arbitration. “I’ve seen cases that raise my eyebrows.”
Mr. West said that in some cases, a physician hired by the county cleared employees to go back to work but told them that in fact they should have returned to work earlier. For example, he said, an employee would be told that only two of the four weeks he or she had been on leave after an injury were justified, so the employee would be paid for only half the leave time.
The county is at fault here, he said, for dragging its feet on scheduling the medical exams. And, he said, the county improperly asked the doctor to consider how long the employee should have been out instead of just whether he or she could go back to work.
Violated Contract, Law
The court order, issued Oct. 20 by Acting State Supreme Court Justice James W. Hubert, ordered the county to immediately implement a 2009 decision by the Appellate Division that it cannot cut off pay to Correction Officers who contest a back-to-work order. By placing the officers on a “job-pending status” with no pay, the order said, “the county created a new status in violation of the collective bargaining agreement and in violation of lawful procedure.” The order prohibits the county from placing officers on job-pending status.
The order was underlined by two recent arbitration decisions restoring officers to 207-c status.
“We’ve been fighting with them over Article 20 [which covers 207-c and Workers’-Comp issues] for 2 1/2 years now,” Mr. West said.
He believes the court and arbitration fights actually make things more expensive for the county. “They’ve won a few,” he said, “but we’ve been very successful with 207-c and psychological issues.”
Westchester County responded with a statement: “Judge Hubert’s decision, and several decisions issued before it in this case, is clearly limited to four named Correction Officers, all of whom were made whole some time ago. Additionally, the department has already changed its procedures and is in full compliance with the court’s prior decisions. Despite the department having done so, the union is still attempting to reap a windfall by expanding this decision to officers that it does not apply to.”
Found Second Suicide
In one of the arbitration cases, Correction Officer Daphne Summa-Brown found an inmate after a suicide attempt in February and dressed him to go to the hospital. She was later treated at the Westchester County Medical Center emergency room for anxiety and stress disorder. She had been exposed to a suicide death in 1996 and “had a total breakdown,” according to Ms. Maldonado. She was out of work for six months.
Her psychiatrist diagnosed her after both incidents as having post-traumatic stress disorder, major depressive disorder and panic disorder. A psychologist who treated her diagnosed her with PTSD after the second incident. A psychiatrist hired by the county said she was temporarily totally disabled. A psychologist hired by the county said he could not draw a connection between her work and her mental illness.
In its argument, the county contended that “the Workers’ Compensation Board has held that inmate suicide, though uncommon, is part of the job of being a Correction Officer… the finding of such an inmate cannot be considered stress that is greater than what might be expected in the normal work environment,” according to the arbitrator’s decision.
The arbitrator found in favor of Ms. Summa-Brown, determining that the 2010 injury was an exacerbation of her 2006 injury, which was compensated under 207-c. Therefore, he said, the 2010 injury must be compensated under 207-c.
Fighting for a Paycheck
“She’d like to go back to being a Correction Officer,” Ms. Maldonado said. “When she’ll be well enough to do that we’re not sure. The condition is worsened by the stress of having to fight for your paycheck.”
In the second case, Correction Officer Robin James was injured Oct. 9, 2009, when she opened a malfunctioning dormitory door to allow a food cart through but hurt her hands in a collision with the food cart and the door. She missed seven workdays and returned to duty wearing a soft brace on her right hand.
The county claimed that her account of her injuries contained inconsistencies and that its re-enactment of the accident showed further inconsistencies. It also questioned whether her supervision of the inmates was part of her duties as a Correction Officer.
The arbitrator ruled on behalf of Ms. James, saying she was indeed performing her job duties, trying to open the door in order “to maintain proper control over the inmates,” who were becoming “agitated” and “impatient” that it was stuck. His own observation of the scene, he wrote, made Ms. James’ account of the injuries plausible.
Her attorneys noted that “incredibly, the county disputed Officer James’ version of the events…and even threatened her with disciplinary charges after bringing her in for an investigatory interview.”
February 18, 2011 – The city has agreed to give a Probationary Correction Officer her job back after she was fired for absenteeism because she took 13 days of sick leave for gall-bladder surgery.