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Decision No. 13,371

Appeal of ANNE CATALDO from action of the Board of Education of the Shenendehowa Central School District and John Yagielski, Superintendent, relating to employment practices.

Decision No. 13,371

(March 15, 1995)

Bernard F. Ashe, Esq., attorney for petitioner, Mary Scalise Perillo, Esq., of counsel

Victor M. DeBonis, Esq., attorney for respondents

SOBOL, Commissioner.--Petitioner appeals respondents' termination of her pay and employee benefits. The appeal must be dismissed.

Petitioner is a tenured art teacher employed by the Board of Education of the Shenendehowa Central School District ("respondent board") since September 1985. On or about February 13, 1990, petitioner was attacked by a student and sustained back injuries. While at work in March 1991, petitioner suffered further injury to her back. Since April 29, 1991, petitioner has been on sick leave, maintaining that she has experienced chronic pain and depression resulting from her back injuries.

By letter dated June 17, 1994, respondent Yagielski directed petitioner to submit to a medical examination, scheduled for August 2, 1994. As a result of the examination, the doctor recommended that petitioner be referred to a physical therapy facility for a "full functional capacity evaluation." On September 8, 1994, petitioner received a telephone call from an individual employed by a physical therapy office. That individual directed petitioner to attend an evaluation and informed her that refusal to do so would result in her removal from the school district's payroll. Having not received any communication from respondents that she was required to attend such an evaluation, petitioner declined to make an appointment.

On or about September 12, 1994, petitioner received a letter from respondent Yagielski stating:

... Based on this refusal, you will not receive any further salary until you have acknowledged and have taken this work capacity profile. If you would like to reconsider your refusal to participate in this work capacity evaluation, please contact Ann Cooper ... the district will discontinue the payment of your salary effective immediately until the results of the work capacity evaluation is completed and the results are forwarded to the Office of Staff Services.

When petitioner contacted Ms. Cooper, that individual declined to discuss the matter with petitioner and indicated that petitioner should contact her attorney.

When petitioner commenced this appeal, she requested interim relief, which was granted on October 3, 1994. The interim order directed respondent board to reinstate petitioner to pay and benefits pending either "(a) a decision on the merits of this appeal; or (b) petitioner's refusal of a proper request under Education Law '913 from the district to attend a medical examination; whichever occurs first."

Subsequent to the issuance of the interim order, respondents restored petitioner to the payroll and directed her to submit to a functional capacity evaluation. Petitioner took part in the evaluation on October 18 and 21, 1994. As a result of the evaluation and meetings between the parties, petitioner returned to work as an art teacher.

The Commissioner of Education will determine only matters in actual controversy and will not ordinarily render a decision upon a statement of facts which no longer exists or which subsequent events have laid to rest (Appeal of Stopka, 34 Ed Dept Rep 157; Appeal of Winkler, 33 id. 334; Appeal of Langenmayr, 30 id. 322). Because petitioner has returned to work with back pay and benefits restored, the appeal must be dismissed as moot.