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.”