Denied Him Workers’ Comp Rule Westchester Owes Injured CO 5 Mos. Pay

Firm News

DAVID COX: Mysterious denial of benefits.
Posted: Monday, December 1, 2014 

Chief Leader


The Westchester County Department of Correction erred when it refused to pay the full salary of a Correction Officer for nearly five months between the day he was injured on the job and the day he had surgery to correct the injury, an arbitrator ruled Nov. 24.

Julie Schatz of Koehler & Isaacs, attorney for CO David Cox, said in an interview last week that her client is one of a number of officers who were denied their full compensation for the period between injury and treatment. Those officers should now be able to proceed to arbitration, or have their cases dealt with favorably in light of the decision in Mr. Cox’s case, she said.

Injured During Struggle 

He was injured Jan. 31, 2014, while struggling with an inmate who needed to be transported but didn’t cooperate. Mr. Cox went out sick and filed for Workers’ Compensation. He had surgery to repair a tear in his right shoulder on May 15 and returned to restricted duty Aug. 11.

According to state law and the union’s contract with the county, injured Correction Officers are entitled to their full salaries for 39 weeks, the arbitrator’s ruling said. According to the grievance filed on Mr. Cox’s behalf by the Westchester County Correction Officers’ Benevolent Association, however, county officials informed him that he would get only partial benefits for the period between the day he went sick and the day he had surgery.

The officials told Mr. Cox that the Workers’ Compensation Board had ruled him partially disabled. They maintained he would need a ruling of full disability in order to receive his full salary. Otherwise, they said, he should have been showing up at work on restricted duty.

‘Never Assigned Him Work’ 

But, Ms. Schatz said, “The county never tried to assign him any work. They never disputed the cause of the injury, they just didn’t approve any benefits for him.”

She said the county’s attitude was, “We’re going to make you wait until you get through the bureaucracy...Somebody else will decide what he’s entitled to.”

The arbitrator, Elliott D. Shriftman, wrote that “there is no document in the record that shows that the Workers’ Compensation Board, at any time in the course of the proceedings before it, advised Cox that he could work special duty.”

He said the county’s decision to rely on a note from an emergency-room physician saying Mr. Cox could return to duty was a mistake. The physician’s “one-line statement that Cox would be fit for limited duty the next day, 

if wearing a shoulder immobilizer, does not manifest that the writer was aware of the functions Cox would be expected to perform, or whether they could be performed with an immobilizer, or whether it would be appropriate for him to work with severe pain.”

Violated Union Contract 

He pointed to medical records from doctors more familiar with Mr. Cox’s case, the procedures he underwent and the pain he suffered as more probative than the emergency-room note.

“The county violated the collective-bargaining agreement by failing to credit David Cox and all similarly affected employees with his/their full 39-week benefit,” Mr. Shriftman ruled.

Mr. Cox has been on restricted duty since returning to work, meaning he has no contact with inmates, does not carry a weapon and does not lift or raise his arms above his head.