Opinion
113654/10
03-03-2011
In the Matter of the Application of Jeffrey Hughes, Petitioner, v. Raymond Kelly, as the Police Commissioner of the City of New York, and as Chairman of the Board of Trustees of the Police Pension Fund, Article II, THE BOARD OF TRUSTEES of the Police Pension Fund, Article II, NEW YORK CITY POLICE DEPARTMENT and THE CITY OF NEW YORK, Respondents.
Attorneys for Petitioner: Bartlett McDonough Bastone & Monaghan Attorneys for respondents: Corp. Counsel of the City of NY
Attorneys for Petitioner:
Bartlett McDonough Bastone & Monaghan
Attorneys for respondents:
Corp. Counsel of the City of NY
Joan B. Lobis, J.
Petitioner Jeffrey Hughes brings this proceeding under Article 78 of the C.P.L.R. to annul the decision of respondent The Board of Trustees of the Police Pension Fund (the "PPF"), which denied him a line of duty Accident Disability Retirement allowance ("ADR") and Ordinary Disability Retirement ("ODR"). The other respondents are Raymond Kelly, as the police commissioner and as chairman of the PPF; the New York City Police Department (the "NYPD"); and the City of New York (the "City"). For the reasons stated below, the petition is denied.
On June 5, 1989, petitioner became an NYPD Police Officer. On June 3, 1992, petitioner's patrol car was struck by a vehicle that he and his partner were pursuing. He complained of neck and lower back injuries and was treated at Our Lady of Mercy Medical Center in the Bronx the same day. He was diagnosed with a muscle strain. On January 21, 1993, petitioner was involved in another automobile accident. This time, while stopped at a red light, his patrol vehicle was struck from behind by a drunk driver. Petitioner complained of neck and back pain and was brought to Our Lady of Mercy Medical Center, where he was diagnosed with a cervical strain and discharged. On September 2, 1996, petitioner was involved in a third accident when his patrol vehicle was again struck from behind. He complained of neck and back injuries and presented to The Long Island College Hospital. An x-ray revealed no fractures or subluxations (spinal misalignments).
On September 4, 1996, petitioner presented to Sheila Tanenbaum, M.D. According to the medical record from this visit, after examination, Dr. Tanenbaum diagnosed petitioner with lumbar vertebral derangement and cervical paraspinal muscle spasm. A September 16, 1996 CT scan revealed "diffuse disc bulging at the L4-5 level with mild compression of the thecal sac and narrowing of the exit foramina." The CT scan also showed a bulging disc at the L5-S1 level.
Petitioner visited Mitchell Kaphan, M.D., an orthopedic surgeon, on October 28, 1996. According to the record of that visit, petitioner was experiencing pain while sitting and sleeping. Dr. Kaphan noted that petitioner was able to raise his leg 90 degrees; toe heel walk; and touch his toes. Dr. Kaphan diagnosed petitioner with a cervical sprain and recommended that he continue to see his chiropractor.
On March 28, 1997, petitioner underwent ultrasounds of his sacroiliac joints and lumbar spine. According to a report from George Braff, M.D., both ultrasounds were abnormal with inflammatory changes noted. On April 6, 1998, petitioner returned to Dr. Kaphan, complaining of left shoulder pain and an inability to sleep on his back or stomach without pain. Dr. Kaphan gave petitioner a prescription for pain medication and recommended that he undergo chiropractic adjustments.On July 13, 2000, petitioner underwent an MRI of his lumbosacral spine. According to the report, the MRI revealed disc herniation at the L5/S1 level, but was otherwise unremarkable. On November 7, 2000, petitioner was seen by Marc London, M.D., who noted a herniated lumbar disc with lumbosacral radiculopathy. He recommended physical therapy and suggested that surgery may have to be considered if his condition worsened. On November 1, 2001, petitioner consulted with Dilip Subhedar, M.D., who is board certified in pain management. Dr. Subhedar reccommended three epidural steroid injections to manage the pain.
On or about November 14, 2001, petitioner applied to the PPF for ADR and ODR. Before deciding on the application, the PPF had petitioner appear for an evaluation before the NYPD's Medical Board (the "Board") on October 15, 2002. During his interview with the Board, petitioner reported pain and discomfort while walking and sitting. Petitioner contended that he could not run. Based on their review of the records and their physical examination, the Board recommended against ADR and ODR.
On April 1, 2004, petitioner again applied for ADR and ODR. On August 24, 2004, after reviewing updated records, which continued to report petitioner's lower back pain, the Board performed another physical examination and again recommended disapproval of ADR and ODR.
On or about April 15, 2005, the PPF remanded petitioner's application to the Board. On August 23, 2005, the Board reviewed an MRI, a discogram, and a CT scan. The MRI revealed "disc herniation at the L5/S1 that [was] protruding between the descending S1 nerve roots[.]" The MRI also reflected an annular tear. The CT scan taken on June 9, 2005, revealed a disc bulge at the L5/S1 and annular tear. A discogram performed on the same day also showed an annular tear. The Board then conducted an interview and physical examination. Petitioner revealed that he was considering surgery and was not undergoing physical therapy. During the physical examination, petitioner was able to heel and toe walk and do a partial deep knee bend. He could forward flex to 30 degrees and extend to 10 degrees. Petitioner rotated to 35 degrees and tilted to 20 degrees. From the seated position, he raised his legs to 90 degrees. Ultimately, the Board again recommended that the PPF disapprove his ADR and ODR application.
On September 15, 2005, petitioner underwent surgery performed by Mitchell Garden, M.D., at the L5/S1 level, involving annulectomy, discectomy, and fusion with a bone graft. A prosthetic cage was also inserted at the L5/S1 level. On September 20, 2005, petitioner presented to Dr. Garden for a follow-up. According to the record from that day, petitioner reported pain upon getting out of bed, but "[o]verall the back pain [was] improved from presurgery." On November 19, 2005 and again on December 21, 2005, petitioner presented to Dr. Garden reporting an improvement in his preoperative pain. At a January 8, 2006 follow-up with Dr. Garden, petitioner reported discomfort during "prolonged sitting," but maintained that the preoperative pain was much improved. Petitioner presented to Dr. Garden again on July 18, 2006. According to the record, petitioner reported "increased discomfort with increased activities but to no great degree." Petitioner was able to forward bend to 70 degrees, lateral bend to 10 degrees, and perform a extension to 10 degrees. At an October 26, 2006 visit with Dr. Garden, petitioner reported discomfort while standing or sitting for long periods of time and Dr. Garden noted a slight decrease in his range of motion. Petitioner presented to Dr. Garden on June 7, 2007 complaining of discomfort in his back that increased with activity. Petitioner's range of motion was again noted as decreased, and this time "slightly uncomfortable." On December 20, 2007, petitioner reported that he felt pain in both legs and his back. Despite this pain, Dr. Garden noted that "[o]verall he [was] greatly improved from where he was preoperatively." On August 7, 2008, petitioner reported pain in his left leg and back. Dr. Garden noted some anterior tipping at the L4/L5 level. On November 18, 2008, Dr. Garden noted a "somewhat decreased" range of motion with discomfort. He believed that there may be break down at the L4/L5 level and reccommended a discogram. Two subsequent visits in February and May 2009 revealed a "status quo" in the condition.
On May 7, 2009, petitioner, by then a sergeant, submitted notice of his intent to retire on July 31, 2009. On May 28, 2009, petitioner applied for ADR and ODR. He appeared before the Board on June 30, 2009. The Board reviewed the medical records, conducted an interview, and performed an examination. At the interview, petitioner set forth that he experienced back pain that radiated down his right leg that worsened with coughing and sneezing. He expressed difficulty with running and bending. On examination, petitioner had a normal gait, but he declined to do a heel toe walk and a deep knee bend. Petitioner was then told to perform range of motion exercises and stop at the first sign of pain. He was able to forward flex to 20 degrees, rotate to 20 degrees, and tilt to 10 degrees. He could not extend. Muscle testing of his legs was unremarkable and his calves were about equal in maximum circumference. In the seated position, he could raise his legs to 90 degrees. The Board recommended that the PPF disapprove the ADR and ODR, finding no evidence indicating that petitioner is "disabled from performing full duties as a New York City Police Officer."
An MRI of petitioner's lumbar spine was performed on August 13, 2009. According to the report, there were postoperative changes at the L5/S1 level, but the MRI was otherwise unremarkable. On or about October 22, 2009, the PPF requested that the Board review the MRI. The Board reviewed the MRI as well as submissions from two treating physicians. In a letter dated August 26, 2009, Dr. Garden set forth that petitioner's range of motion, as measured by the Board on June 30, 2009, showed permanent and "significant loss of range of motion" that may necessitate further surgery. In a report dated September 21, 2009, Edward Lee Vollrath, M.D., set forth that based on petitioner's complaints of pain, he suggested long-acting pain medication. The Board conducted an interview and examination. Petitioner explained that following the surgery he took less pain medication than he did prior. He reported continuous pain and discomfort while sleeping. On physical examination, the Board noted that petitioner was able to stand from a seated position and stand with "a spinal curvature maintained." Petitioner had tenderness at the right lumbosacral junction and posterior iliac ring. The Board noted that his sacroiliac joints and sciatic notch were not tender. His range of motion was limited. From the seated position, "straight leg raising was negative to the level of knees being fully extended with either leg." From the recumbent position, straight leg raising was positive. Motor strength and sensation in the lower extremities were normal. Based on the evidence, the Board recommended that the PPF disapprove petitioner's application for ADR and ODR.
On March 26, 2010, the Board reviewed petitioner's application pursuant to a directive from the PPF to consider new evidence. Among the new evidence were reports from John Porter, M.D., a pain management specialist. On December 4, 2009, upon consultation with petitioner, Dr. Porter diagnosed him with lumbosacral neuritis and spondylosis and medicated him with a epidural steroid injection to the L5/S1. Dr. Porter administered two more injections over the course of December 2009. The Board noted that the report contained no physical findings, other than vital sign measurements and a pain level described as 4/10, nor were there any radiographic studies performed.
Petitioner also submitted a handwritten note to the Board. Petitioner detailed how his pain has affected his ability to perform his duties, setting forth that he could not run, sit, or stand for long periods of time. He maintained that he was constrained to perform desk duty, had been passed over for promotions and opportunities to work overtime, and would not have retired but for the pain. Petitioner set forth that he took ibuprofen twice daily, Percocet "daily as needed," a muscle relaxant at night, and one other prescription pain reliever at night.
The Board conducted an interview and an examination. According to the Board, during the interview, petitioner provided "vague" answers about his medication intake. The Board noted that petitioner could ambulate without a limp. He was able to heel and toe walk, but first told the Board that it would cause him back pain. Petitioner was able to squat to 30 degrees, forward flex to 40 degrees, lateral flex to 20 degrees to both the left and right sides, and extend to 20 degrees. He complained of pain in the right buttocks during the lateral flex. Petitioner's knee and ankle jerks were normal. In the sitting position, he could flex his hips 100 degrees. While lying down, he raised his right leg to between 10 and 20 degrees and his left leg between 30 and 40 degrees. The Board remarked that the leg raising was marked by "voluntary guarding and cogwheeling."
Upon examination, petitioner's back revealed no evidence of muscle spasm, and the strength of his quadriceps, hip flexors, and hamstring muscles was normal. The Board noted "variable sensory loss in the entire right extremity with no evidence of neurological pattern." The Board measured the circumferences of petitioner's right calf and thigh as slightly larger than his left calf and thigh. After review of the evidence, the Board set forth that despite petitioner's complaints of pain, there was "no objective evidence of physical deficit." The Board recommended that the PPF deny petitioner's application for ODR and ADR. By letter dated June 14, 2010, Anthony J. Garvey, executive director of the PPF, informed petitioner that the PPF denied his application on June 9, 2010.
Petitioner argues that his back injury occurred in the line of duty and he cannot perform the duties of a police officer as a result. Petitioner argues that the Board failed to properly weigh all the evidence, ignored Dr. Garden's "significantly credible" diagnosis of petitioner's condition on June 30, 2009, and failed to appreciate the Board's own findings, including a decreased range of motion. Petitioner demands that the court vacate the decision of the PPF and grant petitioner ADR or, in the alternative, allow petitioner to present evidence to the PPF. Petitioner also argues that he is entitled to attorneys' fees under 42 U.S.C. § 1988.
In opposition, respondents argue that there is no objective evidence that correlates with petitioner's complaints of pain. Respondents set forth that after his 2005 surgery, petitioner's condition "improved greatly," as evidenced from the records of his own physicians. Respondents maintain that there were no subsequent abnormal radiological findings and the Board's physical examination revealed no abnormal results. Thus, they argue, the Board's findings have a rational basis, were supported by some credible evidence, and were not arbitrary and capricious.
As a preliminary matter, since the plain language of 42 U.S.C. § 1988 allows attorneys' fees only in actions brought pursuant to specifically named federal civil rights statutes, petitioner is not entitled to attorneys' fees. See North Carolina DOT v. Crest Street Cmty. Council, Inc., 479 U.S. 6, 12 (1986).
In an article 78 proceeding challenging a denial of disability payments, the PPF's determination will be sustained unless it is "arbitrary, capricious, an abuse of discretion or contrary to law." In re Jefferson v. Kelly, 51 AD3d 536, 537 (1st Dep't 2008). ADR benefits are available when an examination and investigation shows that the applicant is physically or mentally incapacitated from performing his or her duty due to an "accidental injury" received in the line of duty, and that such disability was not caused by the applicant's willful negligence. See New York City Administrative Code § 13-252. An applicant for ADR benefits has the burden of proving the existence of the disability and that the disability is causally related to an injury sustained in the line of duty. See In re Drayson v. Bd. of Trs., 37 AD2d 378, 380 (1st Dep't 1971). An applicant for ODR only needs to show that he or she is disabled. New York City Administrative Code § 13-251. Courts have annulled determinations of the Board and remanded for further review when medical issues presented by the petitioner are not adequately addressed or when medical evidence is insufficient to sustain the determination. See, e.g., In re Stack v. Bd. of Trs., 38 AD3d 562 (2d Dep't 2007); In re Rodriguez v. Bd. of Trs., 3 AD3d 501 (2d Dep't 2004). The Board may validly rely on its own medical opinion, even where the petitioner presents evidence contrary to the Board's opinion. See Tobin v. Steisel, 64 NY2d 254, 259 (1985).
The Board's conclusion that petitioner was not disabled was supported by credible evidence and was not arbitrary and capricious. It was not arbitrary and capricious for the Board to rely on its own clinical findings, which revealed mostly normal results and some voluntary guarding by petitioner. Nor was it arbitrary and capricious for the Board to set forth that there were no objective findings of disability. Petitioner submitted no radiological studies that demonstrated abnormal findings. In fact, the August 13, 2009 MRI was unremarkable. Accordingly, it is
ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed.
Dated: March, 2011
______________________________
Joan B. Lobis, J.S.C.