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Dep't of Sanitation v. Guarneri
OATH Index No. 382/04 (Apr. 28, 2004), aff'd, NYC Civ. Serv. Comm'n Item No. CD04-84-SA (Nov. 23, 2004), appended
Petitioner brought employee disciplinary proceeding alleging thatrespondent, a sanitation worker, failed to submit documentationclearly substantiating an inability to travel to the Department clinic onseveral dates while on sick leave, in violation of Department rulesand policy. ALJ found that petitioner proved that respondent's failureto report to the clinic on the dates alleged was not justified on thebasis of a physical inability to travel. Five-day suspensionrecommended. ______________________________________________________ NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
DEPARTMENT OF SANITATION
JOHN GUARNERI
____________________________________________________ REPORT AND RECOMMENDATION
RAYMOND E. KRAMER, Administrative Law Judge
This is an employee disciplinary proceeding referred by the petitioner, the Department of Sanitation, pursuant to section 16-106 of the New York City Administrative Code. Respondent, a sanitation worker, is charged with failing to properly demonstrate his inability to travel to petitioner's medical clinic on several dates in December 2002, as required by Department sick leave rules (ALJ Ex. 1; Complaint No. F92413). A hearing was conducted before me on December 3, 2003. Petitioner presented the testimony of Supervisor Michael Carolan and Registered Nurse Sandra McCaffrey, in addition to documentary evidence. Respondent testified in his own behalf and submitted various documents.
As set forth below, I find that petitioner proved the charge by a preponderance of the credible evidence and recommend that respondent be suspended for five days. ANALYSIS
Michael Carolan, a Department sick leave unit supervisor, testified that he is in charge of scheduling sick leave officers and overseeing the management of employees on sick leave (Tr. 9).
Under Department Policy and Procedure (PAP) No. 93-01, sanitation workers are allowed unlimited sick leave. The Department imposes certain obligations on workers to prevent abuse of that policy.
Thus, when a uniformed member of the force is sick and cannot report to work, the member has to call his work location at least one hour prior to his shift and provide certain identifying information.
PAP 93-01§III (3) (Feb. 1, 1993). In addition, all employees out sick are confined to residence, except when granted authorization to leave. PAP 93-01 §III (1). Depending on the employee's sick leave category and the circumstances, an employee is generally required to document his absence and may be ordered or required to report to the medical clinic for evaluation. PAP 93-01 §§III and According to Mr. Carolan, the PAP classifies employees into three categories of sick leave use: category A, category B, and category C. PAP 93-01 §II. An employee is placed in category C if the employee has seven incidents or more of sick leave usage within a twelve-month period or had three or more incidents and used more than 40 sick leave days within the same period. Category C employees are required to report to the clinic the first day reporting sick. If a category C employee is unable to report to the clinic, which is located at 44 Beaver Street in Manhattan, as required, the employee must submit a fully completed original DS 398 form or comparable medical note covering every day of medical leave. PAP 93-01 §III (C). The medical documentation submitted must further clearly substantiate the employee's claimed inability to travel to the clinic (Tr. 10-11, 37); PAP 93-01 § IV. Supervisor Carolan testified that respondent was a category C employee in December 2002, the relevant period at issue here (Tr. 11). Petitioner maintains a medical leave history for each employee, documenting the incidents when an employee reported sick, when the employee resumed work, and when the employee was placed on medical duty assignment, which is limited duty such as answering phones, working as a porter, or transporting vehicles, or whatever a clinic doctor determines to be necessary (Tr. 14).
"Tissue 4" is the most restrictive limited duty assignment, and involves the least physical activity, for example, serving as a watchman or answering phones in the office (Tr. 15, 25). An employee remains on medical duty assignment in the discretion of the clinic doctor. On the medical duty assignment expiration date, the employee either returns to full duty or returns to the clinic to be reevaluated to see if the employee is able to resume full duty or must return to a medical duty Respondent's medical leave history indicated that the period of sick leave at issue in this proceeding began when respondent reported sick on September 16, 2002. He was seen at the clinic on October 7, 2002, and was returned to duty for October 9, 2002, but placed on a "number 4 tissue" light duty assignment (Tr. 15). Respondent, however, did not report to work as scheduled on his resumption date, but instead reported sick again. On December 4, 2002, Supervisor Delgado visited respondent's home and gave him a copy of an order to report to the Department clinic on December 5, 2002 (Tr. 17; Pet. Ex. 2). Respondent reported as ordered, and was seen by Dr. Barbara Nichols, who resumed him to a limited medical duty assignment from December 5, 2002 through December 12, 2002 (Tr. 19-20; Pet. Ex. 3).
Respondent, who was seen at the clinic early on the morning of December 5th, was due to report to his work location following his departure from the clinic, but instead went home and called in sick On December 6 and again on December 7, 2002, respondent was ordered by telephone to report to the clinic on December 9, 2002, but failed to report. On December 9, 2002, he was ordered by telephone to report to the clinic on December 10, 2002, but failed to report. On December 10, 2002, he was ordered by telephone and during a home visit to report to the clinic on December 11, 2002, but did not report (Pet. Ex. 4; Tr. 22). Ultimately, respondent appeared at the clinic on December 12, 2002, the beginning of the period at issue in this proceeding, and was seen by Dr. Nichols again, who resumed him for a "tissue 4" light duty assignment that day, effective through December 20, 2002 (Pet. Exs. 6 and 7; Tr. 25- 26). Respondent reported to his work location that day and worked through the day, but the next day, December 13, 2002, he called in sick again (Tr. 28). Because respondent was a category C employee, he was required to report to the clinic on December 13, his first day reporting sick after working light duty the previous day. He failed, however, to appear at the clinic as required (Tr. 28).
Thereafter, during a home visit conducted on December 13, 2002, respondent was ordered to report to the clinic on December 16, 2002 (Pet. Ex. 8). Respondent failed to report as ordered.
During a home visit on December 16, 2002, respondent was initially ordered to report to the clinic on December 17, 2002, but that appointment was postponed until December 20, 2002 (Pet. Exs. 9 and 10; Tr. 29, 30). Respondent was advised that he must report on December 20, 2002 or risk being Respondent reported to the clinic as scheduled on December 20, 2002, and once again was seen by Dr. Nichols, who returned him to duty on a "tissue 4" light duty assignment, effective for three weeks through January 10, 2003 (Pet. Exs. 9 and 12; Tr. 30-33). He was slated for clerical duties. Respondent reported that day for the limited duty assignment, but called in sick the nex t day, December 21, 2002, and failed to report to the clinic on his first day sick as required of a category By telephone order and personal order during a home visit on December 21, 2002, respondent was ordered to report to the clinic on December 23, 2002, but failed once again to report (Tr. 34-35; Pet. Ex. 13). By telephone order on December 23, 2004, Supervisor Carolan ordered respondent to report to the clinic the next day, on December 24, 2002. Supervisor Delgado also paid respondent a home visit, found him out at the doctor's office, but left a written notification with respondent's wife that respondent was to report to the clinic the next day, December 24, 2002. Respondent failed to report (Pet. Exs. 14 and 15; Tr. 35-36). The clinic was closed on Christmas day, but on the following day, December 26, 2002, Mr.
Carolan again contacted respondent by telephone and ordered him to report to the clinic on the next day, December 27, 2002, or be suspended. Despite failing to report on December 27, 2002, respondent was not suspended but ordered by telephone and directly during a home visit to report to the clinic on December 30, 2002 or be suspended (Pet. Exs. 16, 17; Tr. 37-38). Upon failing to report as ordered on December 30, 2002, respondent was suspended from work effective on December 31, 2002 for allegedly violating PAP No. 93-01(Pet. Ex. 18; Tr. 37, 38, 39). Thus, there were seven dates in December 2002, following respondent's one day return to work on December 12, 2002, when respondent was either required to report to the clinic on his first day reporting sick as a category C employee or failed to report to the clinic despite being ordered in, five of which were the subject of this proceeding: December 13, 21, 23, 24, and 27, 2002.1 As a category C employee, respondent was required to document both the necessity for his absence, and, if unable to report to the clinic as required, his inability to travel to the clinic. On certain occasions during this period, respondent submitted the standard DS 398 form medical notes.
A DS 398 medical note is a pre-printed form filled out by an employee's physician detailing the employee's health-related complaints, diagnosis, and listing the dates that the doctor believes that the employee can travel to the clinic and/or return to work, along with any other relevant medical When respondent appeared at the clinic on December 20, 2002, he submitted a DS 398 medical note, dated December 12, 2002, which indicated that he was examined on December 12, 2002 by Dr. David H. Zelefsky, complaining of severe neck pain and disc protrusion. He was diagnosed as suffering from cervical radiculopathy caused by severe, frequent coughing fits. The physician prescribed physical therapy twice a week and noted that respondent could travel to the clinic as of December 20, 2002 (Pet. Ex. 19). Respondent also submitted a DS 398 medical note from Dr. Vincent P. DeGennaro, dated December 23, 2002, which was faxed to the clinic at 6:24 p.m. on that date. That note indicated that respondent had been seen by Dr. DeGennaro for complaints of coughing, shortness of breath, nasal congestion, insomnia, neck pain, and vomiting. Dr. DeGennaro diagnosed respondent with sinusitis, sleep apnea, cervical disc protrusion, and hyperactive airway disease, prescribed various medications, and wrote that respondent could travel to the Department clinic on January 10, 2003 (Tr. 42; Pet. Ex. 20). That same day, respondent was also seen by Dr. Joseph Fricano, who faxed a DS 398 medical note to the clinic after the visit. The note indicated that respondent had been seen by the doctor for complaints of severe neck pain exacerbated by chronic coughing. Dr. Fricano diagnosed respondent as having brachial neuritis and radiculitis; he prescribed physical therapy two to three times weekly and, like Dr. DeGennaro, wrote that respondent could travel to the clinic on 1 Be cau se th e na rrat ive o f the com pla int m ade no r efer enc e to resp ond ent's missed clinic appointments on Decem ber 16 o r 30, 200 2, those da tes were not c onsidered as part of the ch arge in this pro ceeding. Respondent was subsequently seen by Dr. Fricano on December 30, 2002, and again on December 31, 2002. Respondent provided DS398 medical notes to the clinic from Dr. Fricano for each of those visits, which simply repeated the diagnosis, recommended treatment, and January 10, 2003 travel date to the clinic that the doctor had listed in his December 23, 2002 note2 (Pet. Exs. 22, 23). All of these notes were placed in respondent’s folder. Respondent was given an appointment by Dr. Albas, the Director of the Medical Division, to be evaluated at the clinic on December 30, 2002. Dr. Albas had noted on respondent's medical chart on December 13, 2002, that he wanted respondent to report to the clinic as soon as possible for an evaluation (Pet. Ex. 24). When respondent failed to report to the clinic for an evaluation on December 30, Dr. Albas reviewed the submitted notes and recommended that respondent be Supervisor Carolan acknowledged that the clinic doctors evaluate sanitation workers but do not actually treat them (Tr. 46-48). The Department's expectation is that if the doctor resumes the worker for duty, the worker has to go back to duty, even if the worker's private doctor says he cannot work (Tr. 51). The clinic medical doctor decides whether to call the sanitation worker's private doctor for further information; the medical director decides whether to disagree with the private doctor's opinion (Tr. 57, 104). In order to get respondent’s suspension lifted, he had to go to the clinic to be evaluated (Tr. 63). Since the day that respondent's suspension was lifted, on January 7, 2003, he has been continuously out on approved sick leave as recommended by Dr. Nichols (Tr. 67).
Supervisor Carolan testified that the box labeled "Patient can travel to DS clinic on __" on the DS 398 form meant the first available date that the doctor thinks the patient is able to travel to the clinic (Tr. 101). Concomitantly, he interpreted this to mean that an employee would be unable to travel to the clinic on any days before that date (Tr. 102, 104). Sandra McCaffrey, R.N., a clinic patient liaison in the Department's Medical Division, handles complicated cases, case management work, and sees patients in the clinic. Most of the patients at the clinic with complaints allegedly linked to working at the World Trade Center site after 2The note dated December 30, 2002 stated that respondent could travel to the clinic on "1/10/02," an obvious the disaster, including respondent, were referred to her because of her experience with infectious disease cases (Tr. 68, 69, 87). Respondent's case was referred to her on January 17, 2003. At some point, Nurse McCaffrey was asked to review for sufficiency purposes, the various medical notes submitted by respondent during the relevant period in issue, December 2002. With respect to the first note at issue, dated December 12, 2002, from Dr. Zelefsky, which respondent presented to the clinic on December 20, 2002 (Pet. Ex. 19), Ms. McCaffrey determined it to be insufficient to establish respondent's inability to travel to the clinic. The note indicated that respondent was complaining of severe neck pain and that the doctor's diagnosis was cervical radiculopathy caused by severe frequent coughing spells. Because the doctor noted that respondent could travel to the clinic on December 20, 2002, Ms. McCaffrey interpreted that to mean respondent was generally capable of traveling, including prior to December 20, 2002, as well. She asserted that if the doctor did not feel that the patient was capable of traveling by mass transit or riding in a car, With regard to respondent's first December 23, 2002 note, from Dr. DeGennaro (Pet. Ex. 20), Ms. McCaffrey similarly determined that since the doctor noted that respondent could travel to the clinic on January 10, 2003, respondent was generally able to travel. She also determined, based on her medical experience, that neither the nature of respondent's complaints - - coughing, shortness of breath, nasal congestion, insomnia, neck pain and vomiting - - which were similar to complaints one might have with ordinary flu, nor the doctor's diagnoses - - hyperactive airway disease, sinusitis, sleep apnea and cervical disc protrusion - - were such that they substantiated respondent's claimed inability to travel to the clinic. Nurse McCaffrey also noted, in support of her conclusions, that respondent was presumably able to travel to his doctor's office to be seen on December 23, 2002, and that his various conditions were being treated (Tr. 74). Likewise, Ms. McCaffrey determined that respondent's second December 23, 2002 note, this one from Dr. Fricano (Pet. Ex. 21), failed to substantiate an inability to travel to the clinic because the doctor was controlling his pain with medications and there was nothing devastating about the diagnosis. Ms. McCaffrey explained that brachial neuritis/radiculitis, the condition with which Dr.
Fricano diagnosed respondent, is an inflammation of the brachial nerve in the arm (Tr. 75).
According to Ms. McCaffrey, many sanitation workers suffer from herniations in the upper or lower portion of their spines, and they travel to the clinic all the time (Tr. 75-76). As for respondent's December 30, 2002 medical note from Dr. Fricano (Pet. Ex. 22), Nurse McCaffrey observed that the note indicated that respondent had been prescribed physical therapy two to three times per week for his bulging disc, which she presumed required respondent to travel (Tr.
76). She further testified that the December 31, 2002 note also failed to substantiate an inability to travel for the same reasons as the other notes (Tr. 78). All of her decisions with respect to the sufficiency of the notes were based solely on the notes themselves (Tr. 77). Nowhere in any of the notes at issue did any of the doctors affirmatively note respondent's inability to travel. Ms.
McCaffrey recalled speaking to respondent about his coughing and insomnia but did not speak to him about his inability to travel to the clinic on any of those dates (Tr. 78). In addition to these medical notes, respondent submitted his work-up for sleep apnea, the MRI of his cervical spine, and a note from a Dr. Fricano, a neurologist, relating to his bulging disc.
Ms. McCaffrey explained that sleep apnea is a breathing disorder during sleep, which can be caused by obstructions in the throat (Tr. 89, 90). People diagnosed with sleep apnea can fall asleep at any time because they do not get enough sleep. If a sanitation worker is diagnosed with sleep apnea, the Department's concern is whether the worker can drive sanitation trucks. The worker is permitted to drive as long as he is being treated by a CPAP machine and being followed up by his physician (Tr.
90). Respondent's sleep apnea report indicated that he suffered from excessive somnolence and that as a result, he should refrain from driving (Tr. 79). The report stated that the application of the CPAP (continuous positive airway pressure) machine completely reversed the sleep disorder (Tr.
80). Ms. McCaffrey saw no basis in that report to conclude that respondent was unable to travel to Ms. McCaffrey acknowledged that the Department clinic doctors and staff do not treat nor diagnose sanitation workers, but simply evaluate their fitness for full or light duty based on an abbreviated examination, the nature and history of the employee's illness and complaints, clinic records or records from consultants to whom the clinic might refer a patient, and the notes that the employees submit from their private doctors (Tr. 81, 83, 95). Because private physicians do not often know that sanitation workers have unlimited sick leave, the Department tries to make them aware of the importance of filling out the DS 398 form very carefully (Tr. 91-92). The sooner that a sanitation worker is treated, the sooner the worker will be able to do some duty for the Department (Tr. 84). Ms. McCaffrey stated that she might call a private doctor for further information or clarification with respect to an employee's condition if she felt that it was necessary, and might also ask a clinic physician to do so (Tr. 88-89). She did not recall telephoning any of respondent's Ms. McCaffrey testified that the travel date that the doctor enters on the DS 398 form is supposed to be the date that the doctor reasonably feels that the worker can travel to the clinic (Tr.
93). She acknowledged that sometimes doctors have differences of opinion over a patient's diagnosis (Tr. 97). According to Ms. McCaffrey, there are several categories within category C, including categories for workers that developed a devastating or chronic illness which requires long-term treatment and for workers that report sick all the time without a significant reason (Tr. 85).
Respondent was not determined to be grossly ill (Tr. 96). Respondent entered category C sometime The October 21, 2003 letter regarding respondent's presence at the World Trade Center after September 11th was a way to document that respondent worked near the World Trade Center site in case he started to have breathing problems (Tr. 88). Respondent first complained of an upper respiratory infection following the World Trade Center disaster on April 8, 2002 (Tr. 97). As for respondent, a sanitation worker since April 17, 2000, he testified that he lives on the South Shore of Staten Island, close to New Jersey. Prior to September 11, 2001, respondent was assigned city-wide as a sanitation police officer (Tr. 107). He was eventually assigned to the Brooklyn South squad near Cropsy Avenue and was car pooling to work at the time (Tr. 108).
Respondent worked at the World Trade Center site on or after September 11, 2001 for a period of time. As a result of working in proximity to the site, his sinuses became completely blocked and he developed hyperactive airway disease, which causes him to react to any type of fumes or cold air by vomiting, spitting, or coughing (Tr. 109). Indeed, if he goes into the shower and unclogs his nasal passages and swallows, it causes him to vomit. Respondent testified that he first complained of excessive coughing and vomiting immediately after September 11, 2001 (Tr. 118). In addition, respondent suffers from sleep apnea, which causes sleepiness all day, headaches, dizziness, and he is thus unable to operate a motor vehicle of any kind. At one point, when coughing during the middle of the night, he pulled his head off his pillow because he was about to vomit and "ripped" his neck out, causing a protrusion in his neck. He could not move and was crippled (Tr.
110). According to his doctors, his cervical injury is related to his respiratory problems.
Respondent, however, is not out on a line of duty injury, as he would like to be classified, but instead is simply out sick. As a result, he often has to pay out of pocket for various medical expenses and During the relevant period, respondent was being treated by Dr. DeGennaro, his regular internist, Dr. Kilkenny, a pulmonary specialist, Dr. Zelefsky, a rehabilitation and physical therapist for his neck, and Dr. Fricano, a neurologist. He has been treated by them for seventeen months or so and has not left his house in fifteen months (Tr. 111). Basically, he just rests, takes his medicine and tries to get better. The sick leave unit checks twice a day to make sure that he is at home as required. Respondent is currently being treated with respiratory inhalers, Advere and Rhinocort, Vicodin for neck pain, and Hycotuss, a codeine cough medicine to settle his chest and help him sleep at night (Tr. 109, 121, 122). He was also supposed to use the CPAP machine to reverse his sleep apnea, but his doctors then determined that his nasal passages were so clogged that he could suffocate by wearing the mask (Tr. 109). According to respondent, his prognosis is that he can no longer pick up garbage for the Department and cannot drive sanitation trucks or do sanitation work again (Tr. 111-12). Indeed, respondent has filed for a three-quarters disability pension, and his case was scheduled for a hearing on December 16, 2003, before the New York City Employees' Retirement System (NYCERS) (Tr.
In December 2002, respondent was out sick and still unable to get to work or even to leave the house. On December 1, 2002, he was admitted to the hospital because of vomiting (Tr. 132).
While at home, he was not totally restricted to bed, but stayed in bed most of the day and would only get up to get something to drink or to have soup (Tr. 131, 132). In order to get to the clinic, respondent has to walk about a mile from his house to the train, take the train to the ferry, take the ferry to Manhattan, and then walk maybe five or six blocks. For the period December 2002 through January 2003, he was absolutely incapable of making the trip (Tr.
108). When respondent comes into Manhattan, he usually gets a ride but has not recently taken the ferry. His father gave him a ride to the hearing (Tr. 122). According to respondent, his doctors were much more familiar with his condition than the clinic doctors. He testified that the December 12, 2002 note, filled out by Dr. Zelefsky, his treating physician for his neck, was given to the clinic (Pet. Ex. 19; Tr. 113). It was Dr. Zelefsky's opinion that he could travel to the clinic as of December 20, 2002. The medical note dated December 23, 2002 was faxed to the clinic the same day from Dr.
DeGennaro, his regular physician, who is also the Fire Department's clinic doctor and who has regularly seen World Trade Center cases (Pet. Ex. 20; Tr. 114, 115). Dr. DeGennaro told him that he should not travel at all or leave his house until January 10, 2003. His doctors were a little baffled how to treat him because the cold air and diesel fumes from trucks could cause a reaction in his lungs (Tr. 115). It was Dr. DeGennaro's recommendation that he not travel during that period. Respondent testified that a doctor's note from December 6, 2002 showed that he could not work even light duty in the sanitation garage office because he could not take fumes (Tr. 124, 125).
Respondent never discussed why he could not work light duty with the clinic doctors or asked his doctors to call the clinic doctors because he did not feel that it was his responsibility. He assumed that he could not go against his doctor's recommendation if the latter told him that he should not travel. Respondent felt that his notes covered all that he needed to cover (Tr. 126). At one time, one of his doctors called the Department and spoke to civilian personnel in the clinic (Tr. 127). Respondent lives with his wife and three children aged six years, seventeen months, and four months (Tr. 120, 121). He has not surrendered his driver's license, but is driven to his doctor's appointments by his wife, his father or other family members (Tr. 120-21). When the sick leave unit visited his home on the occasion that only his wife was home, his father, who lives in the same complex, had taken him to the doctor. From December 13 to December 31, 2002, respondent was going to physical therapy two to three days a week at Dr. Fricano's office, less than a mile from his home (Tr. 128). His wife or father or whoever was available at the time drove him to the office.
Dr. DeGennaro's office is within five miles of his home, and usually his wife would drop him off there for appointments, go to her mother's, and then pick him up (Tr. 129). Respondent maintained that he had difficulty enough getting rides to his doctors' appointments and claimed that getting a ride to the clinic in Manhattan would be even more difficult because his wife works two days per week from 9 a.m. to 2 p.m. (Tr. 129, 131). Respondent did not avail himself of car services or ambulette services because he felt that he could not afford it, plus he could not stop vomiting, was coughing, and could not breathe (Tr. 129-30). According to respondent, when his wife is not at home, his mother, who is a homemaker, or his mother-in-law cares for his two youngest children and his six-year-old goes to school (Tr. 130). According to respondent, when the sick leave unit officer visited his home on several occasions and ordered him into the clinic, respondent asked the officer why he was being ordered in when he had already submitted his doctors' notes indicating his inability to travel. The officer told him to just sign for the visit and opined that the clinic would probably get the note the next day or Respondent asked for an accommodation by moving his work location to the Staten Island borough office, which was near his house, but it was not given to him (Tr. 124). On September 23, 2003, the Department provided notice to respondent that it intended to pursue respondent's medical separation/termination pursuant to Civil Service Law section 73.
Attachment A of the notice indicated that respondent complained of severe cough, rhinitis, and fatigue since September 16, 2002 and has been unable to perform the full duties of his position since that time. The Attachment A also stated that respondent was diagnosed with sleep apnea and hyperactive airway disease, and has been unable to comply with even light duty assignments (Resp.
A Department memorandum, dated October 21, 2003, included in respondent's medical file showed that he worked in the area of the World Trade Center debris on or after September 11, 2001, and that as a result of his assignment, may have been exposed to asbestos (Resp. Ex. B).
Respondent presented a note at trial, dated November 26, 2002, which he claimed to have submitted to the clinic just prior to the period at issue, from Dr. Thomas Kilkenny, his pulmonary specialist. In the note, the doctor wrote that respondent, after exposure to toxins immediately after September 11, 2001, had developed dyspnea, severe coughing causing him to vomit, and severe nasal congestion (Resp. Ex. C). The doctor further stated that respondent had undergone maximal medical therapies with no significant improvement, and he concluded that respondent could no longer work full duty for sanitation collecting refuse. In addition, the doctor noted that exposure to fumes and cold air would exaggerate his condition and create a hazardous environment for him and recommended that he not operate complex machinery requiring a significant amount of vigilance (Tr.
Department rule 7.8 states that "employees on medical leave, or reporting sick must report to the Department's Medical Clinic in accordance with the Department's Medical Leave Policy and Procedure, or when ordered by authorized personnel." Department Policy and Procedure No. 93-01 provides that medical documentation must be submitted in the prescribed manner. It states in relevant part: When directed or as set forth in this PAP, employees are required to provide a fully
completed original DS 398 or comparable medical note from the treating practitioner
to the Authorization Unit of SSLU. The documentation must be acceptable to the
Medical Director or designee and must substantiate the appropriateness and necessity
of the medical leave. However, regardless of category, in all cases where an
employee claims medical leave as a reason for being unable to travel to the Clinic,
the Trial Room, a scheduled conference, or any other required Department business,
the employee must submit documentation which clearly substantiates the inability to
Policy and Procedure No. 93-01, § IV (Feb. 1, 1993) (emphasis in original). In addition, Department rule 7.9 provides that "employees must submit documentation as required b y the Department's Medical Leave Unit. Such documentation (the medical note) must be completed by a licensed medical practitioner, or must be a comparable document that is determined to be acceptable and appropriate by the Department's Medical Unit." At issue in this proceeding, as noted, were five dates in December 2002 when respondent failed to report to the clinic as required and/or as ordered: December 13, 21, 23, 24, and 27, 2002.
Under PAP 93-01, respondent was required to submit a DS 398 medical note which, for each of these missed clinic appointments, "clearly substantiates respondent's inability to travel to the clinic." PAP 93-01 § IV. As noted, Nurse McCaffrey concluded that the DS 398 notes submitted by respondent during this period did not sufficiently substantiate respondent's inability to travel on any of the dates at issue. Nurse McCaffrey based that judgment on her assessment of the nature of respondent's assorted complaints and the doctors' diagnoses in the context of her own substantial medical experience. Nurse McCaffrey also noted that respondent seemed to be able to travel to his doctors' appointments during this period and that his various physical ailments were being addressed in treatment, and that none of the doctors affirmatively stated in the submitted notes that he was not able to travel to the clinic. Ms. McCaffrey also testified, as noted, that it was her interpretation of the doctors' entries of dates on the DS 398 as to when respondent could travel to the clinic, that it meant that respondent was generally able to travel, including on earlier dates as well. With respect to that last point, contrary to what Ms. McCaffrey initially tried to maintain, the most reasonable interpretation of the date entered by a doctor in the box on the DS 398 form as to when a patient can travel to the clinic, is that it is meant to reflect the first date that, in the doctor's opinion, the employee could reasonably be expected to travel to the clinic and therefore that, in the doctor's opinion, the employee could not travel anytime before that date. Not only did Mr. Carolan, a sick leave unit supervisor, corroborate as much, but Nurse McCaffrey ultimately modified her If petitioner's evidence of respondent's ability to travel was limited solely to Nurse McCaffrey's own medical judgments based on her review of the medical notes submitted by respondent, I would not be inclined to find that petitioner had met its burden. The pre-printed forms that petitioner requires private doctors to fill out do not invite lengthy descriptions or explanations of a patient's condition, or diagnoses or treatment, but merely allow for summary statements of such.
On their face, it was not clear that respondent's variously described ailments would not prevent him from traveling to the clinic. Moreover, the form, with its preprinted line reading "Patient can travel to DS Clinic on ______ :" only requests a doctor to enter a date. The form does not request the doctor to explain why he selected such date. Discipline of an employee who properly submits this completed form from his private physician, as did respondent, should not turn on how carefully or expansively the treating doctor is in filling out the form. Clinic staff could have requested more detailed supplemental information from respondent or his treating doctors if it felt that such was needed, or they could have even contacted the treating doctors directly to confirm their opinion of Respondent's submitted notes during this period specified his symptoms and complaints, as well as the doctors' diagnoses. I was not prepared to credit Nurse McCaffrey's judgment about the severity of respondent's condition and its likely impact on his ability to travel over the medical information and contrary opinions expressed in the notes by respondent's treating physicians. However, the evidence in this case was not just limited to Ms. McCaffrey's opinions about the sufficiency of respondent's documentation that he could not travel. On the face of the doctor's notes, several of which prescribed physical therapy for respondent two or three times a week, it was apparent that respondent was indeed traveling to certain locations. Nothing in any of the submitted notes affirmatively stated that he was physically unable to travel anywhere. Significantly, respondent acknowledged that he left the house as needed for physical therapy or doctors' appointments. Indeed, during the period from December 12, 2002 through December 31, 2002, respondent was able to travel to the clinic on two occasions, kept five doctor's appointments, and also went to therapy two or three times a week. On December 23, 2002, a day that respondent had been ordered to appear at the clinic, he went to two doctor's appointments at two different addresses in Staten Island, each for an hour or more. On the mornings of both December 30, 2002, and December 31, 2002, respondent, rather than appear at the clinic as ordered, traveled instead to Dr. Fricano's office for an hour and one In response to questions about why he was able to travel to various doctors' appointments but not to the clinic, it became evident that respondent's reasons for not appearing at the clinic as ordered had less to do with physical inability to travel than with the inconvenience of arranging transportation. Respondent explained that the physical therapist and his various doctor's offices were within a five-mile radius of his home, and that his wife, father or other family members would always drive him. Respondent maintained that he could not physically make the lengthy trip from his home in Staten Island to the clinic in lower Manhattan by public transportation, which required him to take a train to the ferry and to walk a certain distance on either end. While that claim appeared credible, his only explanation for not getting a ride from his wife or one of his family members, as he would for his doctors' appointments, was that it was inconvenient for them to drive him to the clinic. He made no attempts to explore, request or obtain alternate transportation, such In the circumstances, I find that respondent failed to report to the clinic as required and/or ordered on five occasions from December 13, 2002 through December 30, 2002, and failed to clearly substantiate his claimed physical inability to travel, in violation of PAP 93-01 and Petitioner failed to prove that respondent falsely claimed, exaggerated or prolonged his illness or injury, in violation of Department rule 7.2. It was undisputed and well documented that respondent was legitimately ill, as demonstrated by his medical notes, petitioner's attempt to medically separate him from his position pursuant to Civil Service Law section 73 several months prior, and petitioner's determination to carry him as fully disabled ever since. Petitioner presented no proof that respondent was malingering. Petitioner also failed to demonstrate that respondent violated Department rule 7.9, which specifies that respondent must submit appropriate medical documentation to the medical leave unit as required under sick leave procedures. Respondent, in the first instance, submitted fully completed and appropriate DS 398 notes covering every day of his medical leave, as required. FINDING AND CONCLUSION
Petitioner proved by a preponderance of the evidence that respondent, whilea category C employee out on sick leave, failed to report to the Departmentmedical clinic as ordered and/or required on five occasions (December 13,21, 23, 24, and 27, 2002) during the period from December 13, 2002 throughDecember 30, 2002, without clearly substantiating his physical inability totravel to the clinic. RECOMMENDATION
Upon making the above finding, I requested and received an abstract of respondent's personnel record. The abstract indicates that respondent was appointed to his position on April 17, 2000. During his four-year tenure, respondent has been out on sick leave for almost half of that time.
He has no prior adjudicated record of discipline. He was apparently pre-suspended in this matter for In this case, respondent has been found guilty of failing to report to the clinic as required or ordered on several occasions over an almost three-week period in December 2002. Petitioner requested that as a penalty, respondent be suspended for ten days, without credit for time already served during his pre-trial suspension. Penalties meted out for similar sick leave violations have ranged from five to ten suspension days. See Dep't of Sanitation v. Evelyn, OATH Index No.
1822/00 (July 24, 2000), aff'd, NYC Civ. Serv. Comm'n Item No. CD01-68-SA (July 30, 2001) (five-day suspension imposed for respondent who failed to report to the clinic as required and failed to present medical documentation); Dep't of Sanitation v. Liebold, OATH Index No. 1707/01 (June 28, 2001) (five-day suspension for category C employee who failed to timely submit medical documentation to support his claim that he was medically unable to travel to the clinic); Dep't of Sanitation v. Legrand, OATH Index No. 1458/01 (Aug. 2, 2001) (five-day suspension for respondent who failed to provide appropriate and timely medical documentation for one absence and failed to provide any medical documentation to cover a request for authorization to leave home while out sick on another occasion); Dep't of Sanitation v. Jerome, OATH Index No. 1611/00 (Mar. 27, 2000) (ten- day suspension for respondent who failed to report to clinic on first day of medical leave and failed to present medical documentation to substantiate his inability to travel to clinic for three days in light In this case, respondent missed not one, but multiple clinic appointments. Moreover, extensive use of sick leave has often been cited as an aggravating factor in determining penalties for sick leave violations. See e.g., Rannacher v. McGuire, 85 A.D.2d 521, 445 N.Y.S.2d 1 (1st Dept 1981); Dep't of Correction v. Silva, OATH Index No. 1394/90, at 15 (June 19, 1991), aff'd, 194 A.D.2d 426, 599 N.Y.S.2d 958 (1st Dep't 1993); Dep't of Correction v. Vasser, OATH Index No.
232/90 (May 21, 1990), aff'd, 178 A.D.2d 257, 577 N.Y.S.2d 279 (1st Dep't 1991). On the other hand, respondent's failures to appear at the clinic were limited to a concentrated period of time, and seemed to be linked to a disagreement at the time between his doctors and the clinic as to his ability to perform light duty, which disagreement was eventually resolved in respondent's doctors' favor.
There have apparently not been any unjustified missed clinic appointments (or at least discipline for such) since December 2002. Moreover, almost daily calls and home visits throughout respondent's extensive period of absence have not found him out of the home without authorization. Taking these factors into account, as well as respondent's lack of any prior disciplinary history, the undisputed legitimacy of his medical problems, and the above precedent, I recommend that respondent be suspended for five days for his misconduct, with credit for the pre-trial suspension already served.
Raymond E. KramerAdministrative Law Judge JOHN J. DOHERTY
RITA R. BRACKEEN, ESQ.
Attorney for Petitioner
ALLEN COHEN, ESQ.
Attorney for Respondent
City Civil Service Commission's Decision, November 23, 2004
THE CITY OF NEW YORK
CIVIL SERVICE COMMISSION
JOHN GUARNERI
NYC DEPARTMENT OF SANITATION
STATEMENT
On October 28, 2004, the City Civil Service Commission heard oral argument in the appeal of JOHN GUARNERI, Sanitation Worker, New York City Department of Sanitation, from a
determination by the New York City Department of Sanitation, finding him guilty of charges of misconduct and imposing a penalty of SUSPENSION following an administrative hearing
conducted pursuant to Civil Service Law Section 76.
COMMISSIONERS' FINDINGS:
After a careful review of the testimony adduced at the departmental hearing and based on the record in this case, the Civil Service Commission finds no reversible error and affirms the decision and penalty imposed by the New York City Department of Sanitation.
STANLEY K. SCHLEIN, Commissioner/Chairman, Civil Service Commission
DAVID S. LANDE, Commissioner/Vice Chairman, Civil Service Commission
RUDY WASHINGTON, Commissioner, Civil Service Commission
NICHOLAS LAPORTE, Commissioner, Civil Service Commission
STEPHANIE E. KUPFERMAN, Commissioner, Civil Service Commission
RITA R. BRACKEEN, ESQ.
Attorney for Petitioner
ALLEN COHEN, ESQ.
Attorney for Respondent

Source: http://archive.citylaw.org/oath/04_Cases/04-382.pdf