Respondent has worked for the Department as a PAA for the ...



Police Dep’t v. Cornick

OATH Index No. 536/08 (Dec. 7, 2007), rev’d, Comm’r Decision (Apr. 9, 2008), appended

Evidence found insufficient to support finding that police administrative aide was currently unfit. Petition dismissed. On review, the Commissioner found petitioner proved administrative aide is unfit to perform her duties due to a disability.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

- against -

DONNA CORNICK

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

KARA J. MILLER, Administrative Law Judge

This is a disability proceeding referred by the petitioner, the New York City Police Department (“Department”), pursuant to section 72 of the New York Civil Service Law. The petitioner alleges that respondent Donna Cornick, a civilian employee with the civil service title of police administrative aide (“PAA”), is mentally unfit to perform the duties of her position and should be placed on an involuntary leave of absence. Respondent denies the allegation.

At the hearing held before me on October 10 and 16, 2007, petitioner presented the testimony of a Department psychologist, a psychiatrist, and three of respondent’s co-workers. Respondent called a psychiatrist and testified on her own behalf.

Respondent’s attorney objected to the co-workers’ testimony insofar as it related to incidents that occurred in 2004 and 2005. The Department’s attorney asserted that the purpose of the co-workers’ testimony was to show the effect respondent’s conduct had on other employees at the Department and to establish a pattern of unstable behavior on her part. During trial, I permitted three of respondent’s co-workers to testify, but sustained respondent’s objection to a fourth co-worker testifying about an incident in 2005, as not relevant to respondent’s current fitness. Upon reflection, I find that the incidents the co-workers testified about were too remote in time to be relevant as to the effect respondent’s conduct presently has on her co-workers. Moreover, the testimony was cumulative of the Department’s expert medical testimony. Therefore, the testimony of the co-workers with respect to incidents that occurred prior to 2007, has been disregarded.

For the reasons provided below, I find that the Department’s proof was insufficient to establish that respondent is presently unfit to perform the duties of her position and recommend that the petition be dismissed.

ANALYSIS

Respondent has worked for the Department as a PAA for the last 17 years (Tr. 189). In 2002, while stationed in the 94th Precinct, respondent began suffering from psychological problems, including severe depression (Tr. 189, 201). At that time, respondent reached out to her commanding officer for assistance. On May 8, 2002, the commanding officer recommended that she go to Bellevue Hospital for an evaluation, where she was voluntarily admitted (Tr. 189, 201). There, respondent was prescribed Depakote and Risperdal. She was discharged on June 24, 2002, and subsequently returned to work (Tr. 190). Following her return, respondent began outpatient sessions, at which point she was also prescribed Geodon in addition to the two medications prescribed at Bellevue (Tr. 201). Respondent did not feel that the Geodon was effective and stopped taking it, although she remained on the Depakote and Risperdal (Tr. 201).

On December 3, 2003, respondent was referred to a psychologist in the Department’s Medical Division Psychological Evaluation Section. Although she could not remember the exact details of the events leading up to the referral, respondent stated that she was not getting along with some of her co-workers (Tr. 202). When questioned about certain statements attributed to her in the evaluating doctor’s report, concerning her belief that her co-workers were conspiring against her, respondent either denied making the statements or stated that she could not recall them (Pet. Ex. 4; Tr. 202-03).

In December 2003, respondent was transferred to the 83rd Precinct (Tr. 191-92). It was around that time that she suffered from a pinched nerve in her neck. As a result, she was prescribed several types of pain medication which adversely affected her. Respondent described these medications as making her feel “weird,” “funny,” and “high,” as well as causing her to hear voices (Tr. 191, 205). Consequently, she was again voluntarily hospitalized (Tr. 206). Shortly after her January 9, 2004 release, respondent started hearing voices again (Tr. 206). On January 15, 2004, she was transported to the Department’s medical division, where she was evaluated. It was recommended that she seek psychological treatment (Tr. 206-07). Respondent was already under the treatment of Dr. Delia Jano, a Board-certified psychiatrist, so she did not seek additional treatment (Tr. 207).

In November 2004, respondent was referred to Dr. Cecile Irvine, a Department psychologist, after a dispute arose between herself and a co-worker (Tr. 208). Dr. Irvine found respondent stable, calm, and capable of working (Pet. Ex. 4; Tr. 61). According to Dr. Irvine, during the examination respondent reportedly stated she was not currently compliant with her medication and denied having ever suffered from a psychological condition (Pet. Ex. 4). At trial, however, respondent testified that she was taking her medication at the time (Tr. 209). Dr. Irvine followed-up ten days later, again meeting with respondent, who she once more found cooperative and capable of working (Tr. 62).

In June 2005, respondent had another episode at the Department which required her to be evaluated at the hospital, where her medication dosage was again increased (Pet. Ex. 4; Tr. 210). The next day, respondent met with Dr. Irvine. During this interview, respondent denied having ever suffered from a psychological condition, which Dr. Irvine testified was normal for people with delusional disorders (Tr. 66-67).

In the subsequent months, respondent experienced a number of psychotic episodes, both while at work and off-duty (Pet. Ex. 4; Tr. 211-14). In October 2005, respondent was eventually suspended for an incident where she left work early, and as a result she was again seen by Dr. Irvine on November 3, 2005 (Pet. Ex. 4; Tr. 69, Tr. 214). This series of psychotic episodes were triggered by respondent stopping her medication. Dr. Irvine’s report indicated that respondent stated that she planned to have a baby and therefore had discontinued taking anti-psychotic medications that were previously prescribed for her (Pet. Ex. 4). At trial, respondent again asserted that she was medication-compliant at the time, but was not responding properly to the medication (Tr. 217). Following the November 3, 2005 examination, Dr. Irvine found that respondent had “no insight” into her psychological condition, which was “uncontrolled and deteriorating” (Pet. Ex. 4). Dr. Irvine determined that respondent was unfit for work and recommended she be put on a Section 72 emergency leave of absence “until such time as she c[ould] show compliance with psychiatric treatment” (Pet. Ex. 4; Tr. 217).

As a result, respondent was instructed to see Dr. Azariah Eshkenazi, a Board-certified psychiatrist, on December 5, 2005, for an examination (Eshkenazi: Tr. 16). Based on his examination of her, as well as medical records and files which he reviewed, Dr. Eshkenazi found that respondent believed both her co-workers and neighbors purposely did things to upset her at the behest of her former boyfriend. She could not concentrate, was irritable, and suffered from paranoia with delusions of persecution. During the interview, she admitted to drinking heavily at times and that she had in fact stopped taking the previously prescribed psychiatric medications. She also acknowledged hearing voices. Dr. Eshkenazi determined that respondent had poor judgment and no insight into her condition (Tr. 20). He diagnosed her with schizophrenia, schizo-affective type with paranoid ideations (Eshkenazi: Tr. 20). Following Dr. Eshkenazi’s recommendation that respondent was unfit for work, respondent agreed to be placed on an involuntary leave pursuant to Section 72 (Tr. 218).

Approximately seven months later, in June 2006, respondent applied for reinstatement (Tr. 219). She was seen by Dr. Eshkenazi on October 4, 2006. Respondent submitted a medical note from her treating psychiatrist, Dr. Jano, dated June 8, 2006, diagnosing her as having bipolar affective disorder, most recent episode manic, with psychotic features, and indicating that she was medication compliant and could return to work (Resp. Ex. C; Tr. 22). Dr. Eshkenazi found that respondent was responding very well to the medication and did not appear delusional (Tr. 23). Respondent showed insight into her condition and acknowledged that she should continue on her medication (Tr. 29). He concluded that if she stayed on her prescribed medication, she would be fit to resume work. However, if she stopped taking her medication, her condition would deteriorate and she would not be able to work (Pet. Ex. 2).

Respondent was returned to work at the 6th Precinct in November 2006 (Tr. 220). Three months later, in February 2007, respondent was suspended for failing to comply with an order to staff the telephone switchboard (Tr. 221). On April 8, 2007, while still on suspension, respondent appeared at the 83rd Precinct, her former work location, in her nightgown and requested to see the commanding officer, whom she asked for assistance. Respondent was admitted to Woodhull Medical and Mental Health Center, where she remained until May 30, 2007 (Pet. Exs. 3 & 5; Tr. 194).

Respondent’s psychotic break in 2007 was attributed to her noncompliance with her medication. While taking Seroquel, respondent had experienced weight gain, predominantly in the abdominal region (Tr. 193). Although weight gain is a recognized side effect of the medication, respondent instead mistakenly attributed it to being pregnant (Tr. 193). As a result of this misconception and without consulting Dr. Jano, respondent stopped taking the Seroquel in February or March, believing that the medication would have negative consequences on a pregnancy (Tr. 193, 224-25). Respondent explained that once she stopped the medication, she “started having bad thoughts” and “couldn’t think straight” (Tr. 194, 224).

During her stay at Woodhull Hospital, Dr. Jano switched respondent’s medication, taking her off Seroquel and placing her on Haldol Decanoate by intermuscular (“IM”) injection in addition to an oral dosage of Haldol (Pet. Ex. 3; Tr. 222). Respondent received her first Haldol IM injection on May 23, 2007 (Tr. 223).

Upon her release from Woodhull, respondent was required to attend another examination with Dr. Irvine on June 6, 2007, before she could return to work (Tr. 73). At this interview, Dr. Irvine reported that respondent “appeared heavily medicated yet still lacking insight into her condition” (Pet. Ex. 5). Respondent described herself as feeling “delayed,” and Dr. Irvine found that her speech was “slow” and her gait “stilted and odd” (Tr. 74). Respondent felt that she was being overmedicated and planned to speak to Dr. Jano about switching her medication back to Seroquel. Based on the interview, Dr. Irvine determined that respondent was not well enough to return to work at that time. On June 18, 2007, Dr. Irvine spoke to Dr. Jano, who according to Dr. Irvine, also felt that respondent was unfit to return to work at that time. Dr. Jano disagreed with respondent’s assessment that she should be switched back to Seroquel, instead indicating that a lower dosage of Haldol would be appropriate (Tr. 75). Respondent’s medication was reduced to 75 milligrams of Haldol every four weeks by IM injection.

Having been found unfit by Dr. Irvine, respondent was subsequently notified that she was being placed on section 72 leave (Tr. 195). On July 18, 2007, respondent was again required to meet with Dr. Eshkenazi for a fitness evaluation. He found that she was having difficulty concentrating and focusing, was not fit to return to work, and instead should continue psychiatric treatment. He further suggested that perhaps she should apply for social security disability based on the chronic nature of her condition (Tr. 24). At trial, however, Dr. Eshkenazi acknowledged that when he examined respondent on July 18, 2007, her condition seemed to be in remission and she was doing much better since her release from Woodhull (Tr. 40). He contributed this, however, to her not being at work and therefore not having to deal with any external pressure or stress (Tr. 40). Dr. Eshkenazi felt that if she was to return to work, she would encounter stress that would lead her to stop taking her medication (Tr. 26). On August 14, 2007, following Dr. Eshkenazi’s recommendation that she was unfit to return to work, respondent requested this hearing.

While the evidence clearly establishes that respondent suffers from a mental disability, there is disagreement between the parties as to whether that disability is schizophrenia or bipolar disorder. It is not uncommon in section 72 disability cases for the record to contain conflicting expert medical testimony. The trier of fact is not bound to accept the opinion or theory of any given medical expert, but instead may weigh the medical evidence and draw her own inferences to reach a conclusion. Tamara B. v. Pete F., 185 A.D.2d 157, 585 N.Y.S.2d 757 (1st Dep’t 1992); Cotilletta v. Tepedine, 151 Misc. 2d 660, 573 N.Y.S.2d 396 (Sup. Ct. Kings Co. 1991); Herring v. Hayes, 135 A.D.2d 684, 522 N.Y.S.2d 583 (2d Dep’t 1987); Peabody Coal Co. v. Benefits Review Bd., 560 F.2d 797, 802 (7th Cir. 1977); Finn v. Cassidy, 165 N.Y. 584, 59 N.E. 311 (1901); Human Resources Admin. v. Bartolo, OATH Index No. 1211/94, at 7-8 (Nov. 3, 1994). However, the practical implication of reaching such a conclusion, at least in the context of this hearing, is de minimis because the Department did not adequately establish that respondent is currently unable to perform her job duties.

To place an employee on an involuntary leave of absence under section 72 of the Civil Service Law, the Department must prove by a preponderance of the evidence that (1) the employee suffers from a disability, (2) is currently unable to perform her job duties, and (3) the inability to perform those duties is caused by the disability. Dep’t of Probation v. Kornheiser, OATH Index No. 361/06, at 5 (Oct. 13, 2005), aff’d in part, rev’d in part, Comm’r Dec. (Oct. 17, 2005). In such proceedings, “[t]he focus is not on [the employee’s] past condition or work performance, but on [her] current fitness to perform [her] job.” Id. I conclude, based on the evidence at trial, that irrespective of whether respondent has schizophrenia or bipolar disorder, since her release from Woodhull Hospital in May 2007 she has been medication compliant, now shows good insight into her condition, and is fit to work as a PAA in the Department.

The Department failed to present sufficient evidence that respondent was, as of the date of the trial, unfit to return to work. Rather, respondent established that her condition is currently controlled through medication. Dr. Borbely, who examined respondent on the day of the trial, described her prognosis as “excellent, not only based on mental status which was that of a completely normal person but also based on her continuing willingness to take these IM injections which is refused by many patients” (Tr. 140). Similarly, Dr. Jano’s September 18, 2007, letter indicates that respondent’s mood is stable, she is not exhibiting psychotic symptoms, her judgment and insight are good, and she “may return to work provided she continues the present treatment regimen” (Resp. Ex. B). According to Dr. Irvine, in June 2007, Dr. Jano did not feel that respondent was fit for work (Tr. 75). The fact that Dr. Jano’s prognoses changed over the course of these last several months seems to be an indication of an improvement in respondent’s condition and evidence that Dr. Jano’s current approval is based on her consideration of such improvement. In contrast, the Department’s expert witnesses were unable to provide current evaluations of respondent, having last examined her several months before the trial. When asked about his impression of respondent at trial, Dr. Eshkenazi explained, “I have no idea how she is. I have not spoken to her. She seems very appropriate today” (Tr. 46). Likewise, when questioned whether respondent could currently work at the Department, Dr. Irvine answered, “I would have to evaluate her today. You know, again, I haven’t seen her since June. I don’t know” (Tr. 93).

In addition, respondent showed genuine insight into her condition during the trial. When questioned as to how long she will have to continue taking medication, respondent answered that she is “going to be taking this for the rest of [her] life.” Respondent acknowledged that she “has a mental illness that she has to deal with and [she] need[s] medicine to keep [her] straight. This is the only way this is going to work” (Tr. 199). She stated that she no longer intends to have children (Tr. 226), which was the reason she stopped taking her medication in 2007.

While it is significant that respondent displayed insight and was taking her medication at the time of the trial, it is not conclusive of whether she is fit to return to work. See Housing Auth. v. Caballero, OATH Index No. 699/96 (Mar. 13, 1996) (taking into account potential that employee’s heart condition could reoccur in the future, but concluding employee was fit). Because respondent suffers from a chronic, potentially reoccurring condition, it is necessary to analyze the probability that she will suffer a relapse or reoccurrence and the consequences of such a relapse.

In Human Resources Administration v. Bartolo, OATH Index No. 1211/94 (Nov. 3, 1994), a Child Welfare Administration caseworker who had been placed on involuntary leave after being diagnosed by his doctor as having bipolar disorder (although the city’s doctor diagnosed him as having personality disorder, immature type) sought reinstatement. The caseworker’s doctor found that at the time he was seeking reinstatement, his condition had resolved on its own, without the need for psychotherapy or medication, but admitted that “40 to 50 percent of the people who suffer a manic episode will have a recurrence.” Id. at 5. Nonetheless, as this tribunal found that the caseworker’s bipolar disorder was in remission, and that “there was insufficient evidence that the risk of recurrence is so great that reinstatement should be denied,” the caseworker was determined fit to resume work. Id. at 9. Judge McFaul explained:

In such [episodic] cases, the employer faces a degree of risk that the disabling condition might reappear and manifest itself in the workplace. Among the considerations relevant to assessing the level of risk involved are the probability of a recurrence, the frequency or intervals between episodes, and the severity or consequences of a recurrence in the workplace. In certain circumstances, the risk of a recurrence is so great that the employer should not have to assume it. In cases of high probability of frequent and severely disruptive recurrences, a significant risk is presented, making reinstatement inappropriate. However, where the risk of recurrence and the severity are less significant, reinstatement should be granted.

Id. at 9. Here, the factors laid forth in Bartolo weigh in favor of finding respondent fit for work.

I find little probability that respondent will experience a recurrence of her symptoms upon returning to work. At trial, Dr. Borbely asserted that Drs. Eshkenazi and Irvine, who both predicted respondent would decompensate within the year, failed to take into account the fact that respondent is taking her medication through IM injections, which has a much higher compliance rate than other methods (Tr. 140, 148, 167). He estimated that the medication compliance rate of patients receiving IM injections is 90% better than for those receiving their medication through other methods (Tr. 140). Dr. Borbely predicted with a reasonable degree of medical certainty that respondent would remain medication compliant, noting she was presently showing insight into her condition and had already taken a significant step by agreeing to the IM injections (Tr. 166-67).

I was not persuaded by Drs. Eshkenazi’s and Irvine’s conclusions that respondent will likely suffer a relapse. Dr. Irvine explained that respondent “has a history of not taking her medication because she doesn’t believe that she is ill. She lacks insight into the true nature of the severity of her condition and that she, in fact, needs to maintain herself on medication as it is prescribed forever with no breaks in that medication” (Tr. 77). While he could not say with total certainty, Dr. Eshkenazi predicted “very comfortably that she will end back in the hospital sometime in the foreseeable future, purely because this is the cycle of this condition” (Tr. 53).

While I believe that Dr. Eshkenazi’s description of the cycle of noncompliance may be generally applicable to patients with psychiatric conditions such as schizophrenia, I do not believe it takes into account the particular circumstances of this case, such as the IM injections or insight respondent has displayed about her condition since switching to Haldol. Nor do I find that the trial record reveals a pattern of noncompliance that would lead to the conclusion that respondent will stop taking her medication.

At trial, respondent admitted to stopping her medication on two occasions: once in 2002 when she stopped taking Geodon (Tr. 201) and again in February or March 2007 when she stopped taking Seroquel (Tr. 193). Although the Department asserted that respondent stopped her medication on additional occasions as well, it did not establish any such occurrences by a preponderance of the evidence.

Moreover, the Department relied on evaluations that occurred in June and July 2007, even though respondent had only started on a new medication on May 23, 2007. It would have been preferable for both Drs. Eshkanazi and Irvine to have examined respondent closer to the date of the hearing (Tr. 148). Since the earlier evaluations, respondent has begun working and has had several more months of remaining compliant with Haldol through IM injections. In this regard, I find that the conclusions of Drs. Eshkenazi and Irvine that respondent will likely relapse due to not taking her medication to be speculative, in that it is based on general medical guidelines applicable to those with [her] psychiatric condition, “rather than on an individual assessment that [she] cannot now perform [her] job duties competently and/or will not be able to do so in the foreseeable future.” See Housing Auth. v. Caballero, OATH Index No. 699/96, at 26 (Mar. 13, 1996) (finding building caretaker, who suffered from a significant and incurable heart disease, capable of performing his job duties); see also Bd. of Education v. Gilpin, OATH Index No. 232/88 (Aug. 16, 1988) (proof that employee might have future violent outbursts at work too speculative to render him currently unfit under section 72).

In contrast, Dr. Jano, who has regular interaction with respondent as her treating psychiatrist, provided a positive prognosis as recently as September 18, 2007. Similarly, Dr. Borbely’s two most recent examinations of respondent were on September 18, 2007, and the date of trial. As the central question in this proceeding is whether respondent is fit to return to work as of the date of the hearing, I am persuaded to give much greater weight to the prognoses of the two doctors who most recently evaluated her. Further, their prognoses match my impression, gained during the trial, of respondent being medication compliant. Respondent explained that each medication she has taken has had different effects on her and that she now feels fine. She attributed this to the fact that she takes the Haldol through IM injections (Tr. 226). When asked whether she had any plans to stop taking her medication, respondent answered, “No, because if I do, I will get sick again. I don’t want to get sick. I don’t want to be hospitalized. I know I do have a mental health issue and that’s important. I want to take care of this issue. . . . I can’t afford to stop taking this medication” (Tr. 196-97). I found respondent’s testimony candid and sincere.

I was not persuaded by the Department’s contention that the job of PAA is so stressful that returning to it would cause respondent to decompensate. Respondent testified that she is accustomed to working in this environment. In the past her job was limited to making data entries and processing paperwork (Tr. 196). Ms. Pearsall, a PAA who worked with respondent at the 83rd Precinct, described the work of PAA’s as performing data entry and answering questions from the public concerning complaint reports, accident reports, and other paperwork (Tr. 101). While the PAA Tasks and Standards (ALJ Ex. 2) list a number of additional tasks that a PAA could be required to perform, such as testifying in court or interpreting and compiling statistical information, respondent’s job functions have in the past been limited to those she testified to. I have no reason to believe that upon returning to work, respondent will suddenly be placed in unusually stressful situations such as testifying in court. Even if her responsibilities changed, there is no indication that respondent could not successfully perform all of the tasks listed for her position. Respondent was lucid, composed, and calm while testifying at this trial, even during a thorough cross-examination. She did not seem anxious or tense. Further, respondent testified that she is currently employed as a cashier and server at a bagel shop at JFK Airport (Tr. 189). She explained that she commutes by bus for two hours each way and while the work could be considered stressful, she was “not stressed by it. . . . [I]t’s a lot of hard work but we work as a team and we get the job done” (Tr. 199). Taking into account that respondent is currently employed and medication compliant, the Department did not sufficiently establish that she would decompensate if she was to return to her job as a PAA.

Where it is evident, as is here, at the time of a section 72 hearing that an employee’s disability is either in remission or otherwise under control this tribunal has repeatedly refused to find the employee unfit to work merely because of a hypothetical potential for relapse or recurrence in the future. See Dep’t of Parks & Recreation v. O’Connell, OATH Index No. 1769/97 (Oct. 14, 1997) (employee not currently unfit for work where drug therapy controlled schizophrenia); Human Resources Admin. v. Estevez, OATH Index No. 1085/94 (Dec. 14, 1994) (employee with bipolar disorder not currently unfit for work where employee was taking prescribed medication as required); Human Resources Admin. v. Bartolo, OATH Index No. 1211/94 (employee not currently unfit for work where bipolar disorder was in remission); Employees Retirement System v. Bosco, OATH Index No. 505/93 (Mar. 31, 1993) (the potential risk of a relapse for a recovering drug abuser, who also suffered from periodic depression due to post-traumatic stress syndrome related to his Vietnam war experiences, was insufficient to establish current unfitness, where the employee was receiving treatment for his various disabilities and appeared to have them under control at the time of trial); Human Resources Admin. v. Middleton, OATH Index No. 564/91 (Jan. 29, 1991) (employee not currently unfit where alcohol abuse and periodic depression under control); Cabellero, OATH 699/96.

Although this tribunal has a long line of cases in which employees diagnosed with schizophrenia, which is the more serious of the two diagnoses provided in this case, were found unfit to return to work, these cases are inapposite because they almost uniformly involve employees who were not taking medication and whose conditions therefore were not improved at the time of hearing. See Dep’t of Business Services v. Rogoff, OATH Index No. 1112/00 (June 12, 2000) (employee seeking reinstatement not fit for work without medication and therapy); Admin. for Children’s Services v. Rodgers, OATH Index No. 790/00 (Feb. 25, 2000) (employee refused to take medicine and lacked insight into her condition); Dep’t of Probation v. Vargas, OATH Index No. 953/02 (Mar. 20, 2002) (employee who lacked commitment to continuing treatment and indicated she would stop taking medication if instructed to by her church was not fit for reinstatement); Dep’t of Citywide Admin. Services v. H.M., OATH Index No. 1670/04 (July 26, 2004) (employee not on a regular regimen of medication unfit for work); Human Resources Admin. v. Muscillo, OATH Index No. 642/05 (Jan. 20, 2005) (employee who denied that he was ill, and therefore refused medical treatment unfit for work).

Here, respondent recognizes her problem and has taken steps to control it. Based upon respondent’s testimony, her current insight, and the entire record, respondent can be trusted to take her medication. While there will always be some hypothetical risk that respondent may stop taking her medication in the future, the risk does not rise to the level to justify a finding that respondent is presently unfit to work. This case is therefore analogous to O’Connell, OATH 1769/97, Estevez, OATH Index No. 1085/94, and the other section 72 cases where we found employees whose medical conditions to be in remission fit for work.

Likewise, the Department did not establish the severity or consequences of a recurrence in the workplace, however speculative, to be so severe as to require finding respondent unfit. In this respect, this case differs from Department of Correction v. Stevenson, OATH Index No. 1296/07 (Oct. 24, 2007). In Stevenson, Judge Rodriguez found that a correction officer who suffered from bipolar disorder was unfit to return to work, even though she was at the time of the hearing medication compliant. While it was only speculative that she would decompensate, under Bartolo, the risks and consequences to her colleagues, the inmates, and the Correction Department of a potential relapse were so serious as to make her unfit to return to work. See also Dep’t of Sanitation v. Troy, OATH Index No. 842/95 (Feb. 1, 1995), rev’d on other grounds, Commissioner’s Dec. (Feb. 10, 1995) (concluding sanitation truck driver who suffered from periodic and unpredictable seizures was unfit to work because if he was to suffer a seizure, there was a great possibility that he could cause an accident with other vehicles or pedestrians).

The same concerns are not present here. While respondent does work in a paramilitary organization, her role is strictly clerical in nature, unlike the correction officer in Stevenson, who was required to “work and deal with often dangerous individuals with varying personalities and propensities.” Stevenson, OATH 1296/07, at 4. Should respondent decompensate upon returning to work, the Department does not need to fear that respondent would be putting the lives of her co-workers or the public in jeopardy, as was a central concern in both Stevenson and Troy. Based on respondent’s job duties, in a worst case scenario, the Department will be merely inconvenienced by having to refer respondent back to a hospital for further treatment or having to initiate a new section 72 proceeding.

Although I recognize the Department’s desire to separate itself from an employee who in the past has created disruptions in the workplace and required hospitalization for extended periods of time, the legal issue remains the impact of respondent’s condition on her current ability to work. The evidence does not establish that respondent, who is successfully undergoing IM injections of Haldol, is currently unable to perform her job duties or is likely to decompensate under the stresses of performing her duties as a PAA. The Department’s failure to meet its burden on this issue requires me to recommend dismissal of the agency's application. Accordingly, I find that the Department has not demonstrated that respondent is unfit to perform the duties and responsibilities of her position and I recommend that she be returned to full duty forthwith.

FINDINGS AND CONCLUSIONS

Petitioner failed to prove by a preponderance of the credible evidence that, as of October 10 and 16, 2007, respondent was mentally or physically unfit to perform the duties of her position as a police administrative aide.

RECOMMENDATION

Accordingly, I recommend dismissal of the petition and that respondent be reinstated to her position as a police administrative aide.

Kara J. Miller

Administrative Law Judge

December 7, 2007

SUBMITTED TO:

RAYMOND W. KELLY

Commissioner

APPEARANCES:

HARRY PETERS, ESQ.

Attorney for Petitioner

MARTIN DRUYAN, ESQ.

Attorney for Respondent

NYC Police Commissioner’s Decision, April 9, 2008

__________________________________________________

THE NEW YORK CITY

POLICE DEPARTMENT

Petitioner

- Against -

DONNA CORNICK

Respondent

Pursuant to Section 72 of the New York Civil Service Law

__________________________________________________

RAYMOND W. KELLY, Commissioner

DECISION

A copy of the December 7, 2007 Report and Recommendation submitted by OATH Administrative Law Judge Kara Miller was forwarded to this office following a disability proceeding pursuant to section 72 of the New York Civil Service Law.

After reviewing the evidence, hearing transcript, report and recommendation, and the comments submitted by counsel, I find that the Department has met its burden of demonstrating that Police Administrative Aide Donna Cornick suffers from a disability, and that she is unable to competently perform the duties of her position because of her disability.

Therefore, the recommendation of Administrative Law Judge Miller is rejected.

RAYMOND W. KELLY, Commissioner, NYC Police Department

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download