In the Matter of John Park, Respondent, v John A. Kapica, as Police Chief of the Town of Greenburgh, et al., Appellants.

Argued February 7, 2007; decided March 27, 2007

Matter of Park v Kapica, 25 AD3d 801, affirmed.

Matter of Park v Kapica, 25 AD3d 802, affirmed.

Pigott, J.

Petitioner, John Park, a police officer employed by the Town of Greenburgh, underwent surgery in June 2002 as the result of an injury he sustained while in the line of duty. He was certified disabled from his duties pursuant to General Municipal Law § 207-c (1), which states that a police officer injured in the line of duty must be paid by his municipal employer "the full amount of his regular salary or wages until his disability arising therefrom has ceased." [*2]

In March 2003, the Town's medical examiner concluded that Park could return to work in a sedentary capacity. Park's{**8 NY3d at 309} supervisor, Greenburgh Chief of Police John A. Kapica, directed him to return to light duty starting April 21, 2003. Park objected to the medical examiner's determination, submitted a report from his treating physician indicating that he had a "permanent total disability" and requested a hearing on the issue of his ability to return to work. The Town Board appointed a hearing officer and a hearing was scheduled to determine the extent of Park's disability. However, before the hearing could be held, Park commenced a CPLR article 78 proceeding (Proceeding No. 1) objecting to the Town's appointment of a hearing officer and seeking a stay of the hearing on the ground that, pursuant to section 7 of the Westchester County Police Act (WCPA) (L 1936, ch 104, as amended by L 1941, ch 812, § 1), any hearing had to be conducted before the Town Board.^[FN1]

Supreme Court denied Park's application to stay the hearing; nevertheless, Park refused to participate in the hearing, which proceeded on the date scheduled with Park in absentia. The Hearing Officer concluded that Park was fit to return to light duty, that his refusal to do so was without justification, and that the Town could recoup any section 207-c benefits paid to Park from April 21, 2003 until such time as he returned to work. Kapica directed Park to begin his light-duty assignment on August 4, 2003, but rather than return to work, Park retired on August 26, 2003.

On October 20, 2003, Supreme Court dismissed the petition, holding that the Town's appointment of the Hearing Officer was proper. The Appellate Division affirmed, adding that "[t]he procedures for terminating disability payments under General Municipal Law § 207-c must be read in conjunction with Civil Service Law § 75" (25 AD3d 801, 801 [2006]).^[FN2]

Following the dismissal of the petition in Proceeding No. 1, Park commenced a second article 78 proceeding (Proceeding No. 2) seeking, among other things, the annulment of the Hearing Officer's determination that the Town could recoup section{**8 NY3d at 310} 207-c benefits paid to him. Supreme Court granted the petition, ruling that the Town had no authority to recoup payments made to Park prior to the Hearing Officer's finding that he was fit for light duty. The Appellate [*3]Division again affirmed, holding that the Town could not recoup section 207-c benefits paid to Park "before August 4, 2003, the date after the conclusion of the due process hearing when [Park] had been directed to return to work" (25 AD3d 802, 803 [2006]).

We now affirm the order of the Appellate Division in Proceeding No. 1, albeit on a different ground, and also affirm the order of the Appellate Division in Proceeding No. 2.

Pursuant to General Municipal Law § 207-c, municipalities meeting certain population criteria are directed to pay continued salary or wages to officers who sustain a disability in the course of their employment. The continued receipt of section 207-c disability payments is not absolute, however. A municipality is entitled to its own medical examination of its employee (see General Municipal Law § 207-c [1]); and if, in that physician's opinion the officer can perform "specified types of light police duty," payment of the full amount of salary or wages may be discontinued should the officer refuse to return to work if a light-duty assignment "is available and offered to him" (General Municipal Law § 207-c [3]).

The right of a disabled officer to receive section 207-c disability payments constitutes "a property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated," and a due process hearing is triggered when an officer on section 207-c status submits evidence from his treating physician supporting the officer's claim of "continued total disability" (Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686, 691, 692 [2000] [pursuant to the analogous provision General Municipal Law § 207-a, firefighters who contest a light-duty determination are entitled to a due process hearing]).

At issue on the appeal in Proceeding No. 1 is Park's claim that the Town improperly followed Civil Service Law § 75 by delegating Park's section 207-c hearing to a hearing officer instead of following section 7 of the WCPA. Civil Service Law § 75 and section 7 of the WCPA, however, apply to disciplinary actions. Because Park was not subject to discipline or to the{**8 NY3d at 311} threat of termination for contesting the medical examiner's light-duty determination, neither of those sections applies. Therefore, the Appellate Division erred in stating that Civil Service Law § 75 should be "read in conjunction with" General Municipal Law § 207-c, a holding that implies that all due process hearings pursuant to section 207-c must comply with Civil Service Law § 75. Such is not the case. We are concerned here solely with whether Park was afforded due process in contesting the medical examiner's determination, which bears no relation to a disciplinary proceeding. Nonetheless, we affirm the order of the Appellate Division because the procedure employed by the Town concerning Park's challenge to the medical examiner's light-duty determination comported with procedural due process.

We have previously stated that section 207-c provides no definitive procedure that must be followed, and that such procedures may be the subject of collective bargaining (see Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73, 80-81 [2000]). The [*4]parties here have not collectively bargained a procedure to be followed when an officer contests a light-duty determination. Therefore, the Town was free to fashion a hearing remedy so long as its procedure afforded Park due process.

Here, Park's interest in the continued receipt of disability benefits was adequately protected by the Town's due process procedure. Although he chose not to participate in the hearing, he was nevertheless given the opportunity to contest the medical examiner's light-duty determination by presenting his own witnesses and cross-examining the Town's witnesses. Moreover, the Town did not terminate his disability benefits at any time prior to his hearing. Therefore, while we affirm the Appellate Division's order in Proceeding No. 1, we do so on the ground that the procedure followed by the Town sufficiently met the dictates of due process.

The appeal in Proceeding No. 2 brings up for review the issue whether the Town is entitled to recoup section 207-c payments made to Park between April 21, 2003, the date he was initially directed to begin his light-duty assignment, and August 4, 2003, the date he was directed to begin his light-duty assignment after the Hearing Officer affirmed the medical examiner's findings. We hold that it is not.{**8 NY3d at 312}

There is no provision in section 207-c allowing the recoupment of disability payments made to an officer who is later found to be able to work (see e.g., Matter of DePoalo v County of Schenectady, 85 NY2d 527, 532 [1995]; see also Matter of Uniform Firefighters of Cohoes, 94 NY2d at 693). A municipality may discontinue disability payments once its medical examiner finds that the officer can perform a light-duty assignment and the officer "refuse[s] to perform" that duty (General Municipal Law § 207-c [3]). Should an officer refuse to return to work and fail to provide medical proof that he is unable to do so, the medical examiner's opinion is dispositive and disability payments may be discontinued without a hearing (id.). However, a municipality is not permitted to recoup section 207-c payments where, as here, the officer avails himself of due process protections by challenging the medical examiner's determination because such a challenge cannot be equated with a refusal to return to duty. We rest our conclusion solely on our reading of the applicable statutes, and do not suggest that there would be any constitutional bar to a recoupment of benefits in a situation like this one, had the Legislature so provided.

Accordingly, the orders of the Appellate Division in Proceeding Nos. 1 and 2 should be affirmed, with costs.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read and Smith concur; Judge Jones taking no part.

In each case: Order affirmed, with costs.