Opinion
2939804
Decided March 31, 2005.
Petitioner, Donald Vastola seeks a judgment, pursuant to CPLR Article 78: (a) reviewing and annulling the action of the respondents herein in denying to petitioner a line of duty accident disability retirement pursuant to the Administrative Code § 13-353 and declaring said action to be arbitrary, capricious, unreasonable and unlawful; and (b) directing and ordering the respondents to review petitioner's application for accident disability retirement, or in the alternative; (c) directing a hearing on the factual and/or medical issues raised herein; or in the alternative; (d) directing that the Board of Trustees of the New York City Fire Department, Article 1-B Pension Fund allow petitioner and/or his representative to present such testimony as is necessary at a hearing held before the Board of Trustees in order to prove his entitlement to a line-of duty accident disability retirement allowance.
Additionally, petitioner moves for an order pursuant to CPLR § 2307(a), directing the respondents herein to serve and file: (a) all reports, recommendations, certificates and all other documents submitted to the Board of Trustees of the New York City Fire Department, Article I-B Pension Fund, in connection with the retirement of the petitioner herein: (b) copies of the minutes of each meeting of said Board of Trustees wherein the Board of Trustees considered, discussed, or acted upon the retirement application of the petitioner and; (c) copies of any and all records, reports or notes relating to petitioner which are on file with the Article 1-B Pension Fund and/or Fire Department.
Respondents Nicolas Scopetta, The City of New York and The Board of Trustees oppose the instant petition on the ground that The Board of Trustees' decision was not arbitrary or capricious, and that in reaching such decision The Board of Trustees properly relied upon the determination of the Medical Board of the 1-B Pension Fund (the 1-B Medical Board) that petitioner was not entitled to disability retirement benefits.
Petitioner had been a firefighter in the New York City Fire Department since February 1979.
On November 13, 1997, at age 41, petitioner reported a sudden sharp pain in his lower-back while attempting to lift an office desk to free a telephone wire.
On September 11, 2001, petitioner was on duty as a Supervising Fire Marshal and present in close proximity to the World Trade Center when it collapsed, resulting in him being knocked down by falling debris and exposed to contaminated air without the use of a breathing apparatus. Petitioner suffered low back pain from being knocked down, recurring sinus infections and clogged nasal passages which subsequently required nasal surgery.
Petitioner continued to work at the World Trade Center site for approximately 5 days thereafter, and was involved in the rescue and recovery effort.
On January 15, 2002, petitioner underwent nasal surgery due to the effects of breathing in contaminated air at the World Trade Center site, which included "uvulopalatopharyngoplasty, submucous resection of nasal septum and submucous resection of inferior turbinate bilaterally." Warren Zelman, M.D., petitioner's surgeon, stated the preoperative and postoperative diagnosis were that of "deviated nasal septum, turbinate hypertrophy bilaterally, hypertrophy of uvula and soft palate with upper airway resistance syndrome."
On June 1, 2002, petitioner submitted an application for Accident Disability Retirement due to the injury he received to his lower back and exposure to toxins at the World Trade Center site. In response to petitioner's application, the Fire Commissioner submitted an application for Ordinary Disability Retirement on behalf of petitioner.
On August 12, 2002, an MRI of petitioner's lumbar spine was performed. Mark J. Bluth, M.D. reported:
L4-broad based bulging annulus extends from the right to left neuroforamen. A moderate size central subligamentous disc herniation produces an anterior extradural impression resulting in mild central canal stenosis. Moderate size L-5-S1 left posteriorolateral disc herniation compresses the thecal sac, posteriorly displacing the left S1 nerve root. Ipsilateral neuroforamen is attenuated in caliber. Underlying facet arthroisis is seen.
Dr. Bluth's impression was of "L-4-5 central subligamentous herniation, diffuse bulging annulus. L5-S1 moderate left posterolateral disc herniation composing S1 nerve root."
On August 23, 2002, petitioner was examined by Sebastia Lattuga, M.D., Orthopedics and Spine Surgery. Dr. Lattuga diagnosed petitioner with "discogenic low back pain" and "mild lumbar radiculopathy." Dr. Lattuga recommended a IDET procedure and discussed "microdiscectomy and surgical intervention" with petitioner.
On August 27, 2002, petitioner was examined by Nadya Swedan, M.D. In the report, Dr. Sweden state that petitioner suffers from "L4 to S1 disc herniations with chronic low back pain." Dr. Sweden also state that petitioner "will begin a course of physical therapy there three times a week for one month, including a trial of traction," and petitioner "will begin a home exercise program as recommended by the therapist."
From August 28, 2002, until September 18, 2002, petitioner underwent physical therapy.
On August 27, 2002, petitioner submitted a CD-72 report, claiming to have felt a pain in his back due to falling debris on September 11, 2001. His claim stated: "In an attempt to escape injury at the time of the WTC collapse, I was knocked down by falling debris and felt sudden sharp pain in my lower back."
On September 10, 2002, petitioner was examined by Harvey Orlin, M.D. In his report, Dr. Orlin concluded: lumbar spine sprain with bilateral lumbar radiculopathy; degenerative disc disease and osteoarthritis most marked L4-S1; central canal lateral recess stenosis L3-L4; subligamentous disc herniation compressing the left S1 nerve root at L-5-S1; herniation, diffuse bulging annulus. L5-S1 moderate left poserolateral disc herniation compressing S1 nerve root.
On September 18, 2002, Jeffrey Krupen, M.D., wrote a letter regarding petitioner's disability. In the letter, as Exhibit J, Dr. Krupen stated:
Mr. Donald Vastola is a patient of mine for almost ten years. In late November of 1997, he began to complain of low back pain for the first time. The pain recurred after September 11, 2001 with the pain getting noticeably worse. He then exacerbated this condition by simply bending over on August 5, 2002 and I began him on Flexoril and Ibuprofen the next day. An MRI was performed on August 12, 2002 which shows "L4-5 central subligamentous herniation, diffuse bulging annulus. L5-S1 moderate left posterolateral disc herniation compressing S1 nerve root."
On September 24, 2002, petitioner was again examined by Dr. Swedan, who stated petitioner suffers from "L4 to S1 herniation." Dr. Swedan recommended that petitioner "continue with physical therapy" and "continue with a home exercise program."
On September 27, 2002, petitioner was examined by Andrew Cadsen, M.D., of Beth Israel Medical Center Spine Institute. In his report Dr. Casden concluded:
We feel Mr. Vastola has back and leg pain as a result of the degenerative disc and arthritic changes and the small disc herniations. We would recommend, at this time, that he continue with conservative treatment and allow some more time to go by. This is a quality of life decision for him. If his symptoms do not improve surgery is an option for him but it would be rather significant and require a fusion.
On September 27, 2002, Richard J. LeMonda, Supervising Fire Marshal, wrote a memorandum regarding petitioner's involvement at the World Trade Center site. In his memorandum, Supervising Fire Marshal LeMonda stated:
On September 11, 2001, I was present at the collapse of the World Trade Center pursuant to my official Fire Department duties as a Supervising Fire Marshal. At the time of the collapse of the north tower I was on the corner of Church and Liberty Street, and in the course of attempting to evacuate the area I observed Supervising Fire Marshal Donald Vastola get knocked down from falling debris. I subsequently assisted him to his feet at which time he complained of lower back pain. Due to the tremendous amount of dust and debris we sought refuge in Battery Park City where we met with other Fire Marshals and our superior officers to formulate a plan to deal with this catastrophic event.
On October 24, 2002, petitioner was examined by a three-physician Medical Board Committee, composed of physicians with the Fire Department Bureau of Health Services. The physical examination showed, among other things, intact reflexes. However, the Board found petitioner unfit for full fire duty due to lumbar disc disease and chronic sinusitis. The Board noted that petitioner had recently retired with service retirement benefits.
Based on the recommendation of the Board, an application for petitioner's retirement with ordinary disability retirement benefits was made by the Fire Commissioner on or about November 5, 2002.
On January 22, 2003, petitioner's case was considered by the FDNY 1-B Medical Board, consisting of three independent physicians not employed by the Fire Department, who report to the Pension Fund's Board of Trustees. The 1-B Medical Board reviewed petitioner's CD-72 reports; petitioner's MD-9 record; the MRI report of August 12, 2002; petitioner's application for accident disability retirement benefits; Dr. Lattuga's report; Dr. Swedan's reports; Dr. Orlin's reports; Dr. Krupen's report; and the three-physician Board's report. The 1-B Medical Board noted the three-physician Board's finding that petitioner was unfit for fire duty due to lumbar disc disease. The 1-B Medical Board referred petitioner for evaluation of the lumbar spine by its impartial neurosurgical consultant, Dr. Richard Raynor, a Clinical Professor of Neurosurgery at the New York University School of Medicine.
On February 12, 2003, petitioner was evaluated by Dr. Raynor. Dr. Raynor reported, as part of petitioner's history, that he was "knocked down and felt some back pain on 9/11. However, he did not lose any time from work and continued to work his regular duty until his [service] retirement." The interview also revealed that petitioner complained of pain in the center of his lower back, with an intermittent tingling sensation in his right buttock, sometimes radiating into the anterior thigh but never below the knee.
Dr. Raynor's February 12, 2003 physical examination found that petitioner walked well on his heels and toes and could hop on either leg. Although when asked to bend forward, petitioner did not go much beyond 90 degrees, straight leg raising in the sitting position was "easily accomplished to 90 degrees," which is normal. Straight leg raising in the supine position was 45 degrees on the right and 30 degrees on the left. Motor and sensory examinations of the upper and lower extremities were normal. Reflexes tested included the biceps, triceps, knee and ankle jerks, which were 1+ and equal, which is normal. The plantar responses were down, which is normal.
Dr. Raynor also reviewed the MRI scan of the lumbar spine of August 12, 2002. He noted a large osteophyte on the left inferior border of the L-5 vertebral body but found no compromise of the nerve roots. A slight decrease in signal in the L4-5 and L5-S1 discs was "indicative of mild degenerative changes".
Based on the physical examination results and his review of the MRI, Dr. Raynor concluded that petitioner had "mild degenerative changes of the lumbar spine," which did not prevent him from performing full fire duty.
On March 12, 2003, the 1-B Medical Board reviewed and relied upon Dr. Raynor's report and found that petitioner was not disabled from performing fire duty.
On March 20, 2003, petitioners' MRI of August 12, 2002 was reviewed by William M. Forman, MD, a radiologist of Mercy Medical Center in Rockville Center. Dr. Forman concurred with the findings of a moderate sized sub-ligamentous disc herniation at the L4-L5 level, "which produces an anterior extradural impression resulting in mild central spinal stenosis. He also stated that the postero-lateral disc herniation at L5-S1 on the left side "displaces the left S1 nerve root posteriorly." He also stated that there was a narrowing of the left neuro-foramen at L5-S1 with underlying facet arthrosis.
On March 22, 2003, petitioner's MRI of August 12, 2002 was reviewed by Jeffrey D. Stanczak, MD. Dr. Stanczak stated that at L4-L5 there was disc desiccation with a broad-based disc bulge and a superimposed central disc protrusion, which compressed the thecal sac, resulting in overall mild central stenosis at L5-L5. At L5-S1, Dr. Stanczak stated, there was "disc desiccation and a moderated sized left paracentral disc protrusion, which effaces the thecal sac and displaces the traversing left S1 nerve root." He also found mild bilateral facet hypertrophy.
On March 28, 2003, the Board of Trustees remanded petitioner's case to the 1-B Medical Board for consideration of the reports of Dr. Forman and Dr. Stanczak.
On August 27, 2003, the 1-B Medical Board considered petitioner's case for the third time. Based on review of the reports of Dr. Forman and Dr. Stanczak along with the entire prior record, the 1-B Medical Board found that its prior opinion should remain unchanged. The 1-B Medical Board noted that Dr. Raynor, its impartial medical consultant, had reviewed the same August 12, 2002 MRI as had been reviewed by Drs. Forman and Stanczak.
On September 15, 2003, an EMG study was conducted in the Clinical Neurophysiology Laboratory of North Shore University Hospital. The report by I. Cohen, MD, concluded as follows:
The [EMG] study is borderline abnormal.
There is no electrophysiological evidence of sensorimotor neuropathy in the lower right extremity.
Needle EMG study revealed occasional fibrillations in the right medial gastrocnemius muscle and borderline chronic lower motor neuron dysfunction without acute denervation in the L5-S1 innervated muscles in the right lower extremity and right L5-S1 paraspinals.
These changes are subtle, hence clinical and radiological correlation is suggested.
On September 16, 2003, petitioner was examined by Karen Blitz, DO. The motor examination found that both upper and extremities graded 5/5, which is normal. Deep tendon reflexes were symmetric and normal. Plantar responses were down-going bilaterally, which is normal. There was no clonus. Sensation was intact to primary modalities, which is normal. Petitioner was able to walk normal cadence and normal balance. Petitioner was able to stand and hop on both limbs, although he complained of pain. The Romberg and Tandem were normal.
On October 2, 2003, petitioner was examined by Jeffrey F. Shapiro, MD, who reported the physical examination showed bilateral lower extremity muscle strength was 5/5 throughout, which is normal, and there were no sensory deficits.
On October 7, 2003, Dr. Forman commented on Dr. Raynor's report of February 12, 2003. Dr. Forman agreed with Dr. Raynor that there was no nerve root compression caused by the L5 vertebral body osteophyte. However, Dr. Forman argued that Dr. Raynor's comments were "incomplete," because Dr. Raynor did not appear to acknowledge or incorporate bi-level disc pathology of mild central stenosis at L4-L5 and postero-lateral disc herniation at L5-S1, which Dr. Forman stated was compressing the thecal sac and displacing the left nerve root posteriorly.
On October 20, 2003, a new MRI of the lumbar spine was reported by David L. Milbauer, a radiologist. Dr. Milbauer found that at L5-S1 "there is an asymmetric left sided posterior disc herniation, slightly decreased in size on the current study, resulting in some asymmetric narrowing of the left lateral at this level," and there was "some asymmetric narrowing of the left L5 neural foramen." In comparison to the August 12, 2002 study, at L4-L5, Dr. Milbauer stated, the current MRI showed:
. . . some interval decrease in the size of the midline subligamentous posterior disc herniation at L4-5, again associated with diffuse posterior disc bulging and hypertrophic changes of the posterior elements, resulting in stenosis of the canal and asymmetric narrowing of the L4 neural foramina, right more than left at this level. At the L5-S1 level, there is again note made of a left sided posterior disc herniation, which appears decreased in size in the current study, again associated with hypertrohic changes of the L5-S1 facet joints, with some asymmetric narrowing of the left lateral recess and left L5 neural foramen again noted.
On October 24, 2003, petitioner's case was considered for the second time by the Board of Trustees and was again remanded for consideration of recent reports by his physicians.
On December 17, 2003, the 1-B Medical Board considered petitioner's case for the fourth time. The 1-B Medical Board reviewed the EMG report by Dr. Cohen; the September 16, 2003 report by Dr. Blitz; the October 2, 2003 report by Dr. Shapiro; Dr. Forman's October 7, 2003 report and the October 20, 2003 MRI report by Dr. Milbauer. The 1-B Medical Board deferred decision pending review of the new electrodiagnostic test result and new MRI film by its impartial neurological consultant, Dr. Raynor, to determine whether these would change his opinion that petitioner was not disabled from performing fire duty.
On January 7, 2004, Dr. Raynor prepared a second evaluation report concerning petitioner's lumbar spine, as requested by the 1-B Medical Board. For his evaluation, Dr. Raynor reviewed both the new October 20, 2003 MRI scan of the lumbar spine and the MRI of August 12, 2002, as well as the Dr. Milbauer's MRI report of October 20, 2003, comparing the two MRI studies. Dr. Raynor also consulted two independent radiologists, who reviewed the MRI studies and provided him with their opinions. Further, Dr. Raynor reviewed the EMG report by Dr. Cohen, as well as his own prior report.
Dr. Raynor began by performing a blind review of the new MRI study of October 20, 2003, explaining his procedure and his rationale as follows:
I recently received a request from the department to review a new MRI scan of the lumbar spine. This indicated that I had previously evaluated the patient. In an effort to make my interpretation of the new scan as objective as possible I did two things. Firstly, I did not review my report on this patient and secondly I did not review the interpretation that accompanied these films.
Dr. Raynor reported his interpretation of the new MRI study of October 20, 2003:
The intervertebral disc spaces are well maintained in height. There is evidence of dehydration in the discs at L4-5 and L5-1 consistent with some mild degenerative changes. There is a small annular tear at L4-5 and L5-S1 discs with mild disc bulging but no disc herniations. There was some osteophyte formation on the posterior vertebral bodies at L5-S1, most marked on the superior border of S-1. Again, I would characterize these changes as mild to moderate.
After reviewing the October 20, 2003 MRI films, Dr. Raynor:
. . . reviewed my initial interpretation of films done on 8/12/02 and found it essentially the same as my interpretation of this set of films from 10/20/03. I reviewed the first set of films, which were supplied to me[,] and again felt there was no marked difference.
Dr. Raynor next reviewed the radiology report of Dr. Milbauer of October 20, 2003. Nothing that his own interpretation of the films differed from Dr. Milbauer's interpretation, Dr. Radnor determined that "further review of these films was advisable in an effort to obtain as impartial and accurate a reading as possible."
Dr. Radnor determined that further radiological review was indicated. He asked two board-certified radiologists to review and interpret the MRI films independently and they reported their findings as follows:
I the asked two board-certified neuro-radiologists independently to review ans interpret the films. In both cases no history was given in and effort to eliminate possible bias. Both radiologists interpreted the films essentially the same as I did. Importantly, neither felt that there was disc herniation or nerve root compromise.
Dr. Raynor also considered the EMG report:
Though your instructions to me were to review the recent imaging study a report of a neuro-diagnostic examination is also included. The conclusion of this report is "the above study is borderline abnormal." The examiners also suggest clinical and radiological correlation.
In order to assess the clinical correlation suggested by Dr. Cohen's EMG report, Dr.
Raynor reviewed his own report of physical examination of February 2003. Dr. Raynor noted an inconsistency between supine straight leg raising and sitting straight leg raising, each of which tests for sciatic pain and should, thus, have the same result:
As a final step in this review I looked at my examination of the patient, which was done on February 11, 2003. The examination at that time was essentially normal except for one inconsistent finding, which I noted but did not comment on at the time. In the supine position straight leg raising was markedly decreased bilaterally. Yet in the sitting position could be accomplished to 90 degrees without any effort.
Based upon his evaluation, Dr. Raynor concluded:
Summing up I feel that my original conclusion is appropriate based upon all of the above evidence. I will add at this time that there does appear to be some functional overlay present.
On March 10, 2004, the 1-B Medical Board considered petitioner's case for the fifth time, reviewing Dr. Raynor's report of January 7, 2004, along with the entire prior record.
Relying on Dr. Raynor's opinion, the 1-B Medical Board found that its previous recommendation, finding petitioner not disabled from performing fire duty in reliance on the opinion of Dr. Raynor, should remain unchanged.
On May 27, 2004, petitioner's case was considered for the third time by the Board of Trustees. Mylan Denerstein, Deputy Fire Commissioner, proposed that the 1-B Medical Board's recommendation for denial of accident and ordinary disability benefits be "noted," that is, adopted by the Board of Trustees. Stephen Carbone, Lieutenants' Representative of the Uniformed Officers' Union, agreed that the non-disability finding was "Noted." Pursuant to the Trustees' resolution, petitioner's application for accident disability retirement benefits was denied.
The within petition followed.
"The issue of whether a firefighter is disabled as a result of a service-related accident is determined by the Medical Board of the New York City Fire Department Pension Fund, Subchapter 2 (formerly art 1-B) . . . Its determination that a firefighter is not disabled for duty is conclusive if it is supported by some credible evidence and is not irrational" ( Matter of Kuczinski v. Board of Trustees of New York City Fire Department, Article 1-B Pension Fund, 8 AD3d 283, 284); see also Matter of Borenstein v. New York City Employees' Retirement System, 88 NY2d 756, 760 ["In an article 78 proceeding challenging the disability determination, the Medical Board's finding will be sustained unless it lacks rational basis, or is arbitrary or capricious"]; Matter of Drew v. New York City Employees' Retirement System, 305 AD2d 408, 409 ["The Medical Board's determination is conclusive if it is supported by some credible evidence and is not irrational"]; Inguanta v. Board of Trustees of New York City Fire Dept., 302 AD2d 527). "[I]t has been said that credible evidence is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered" ( Meyer v. Board of Trustees of the New York City Fire Dept., Article 1-B Pension Fund, 90 NY2d 139, 147). "Where conflicting medical evidence and medical reports are presented to the [Medical] Board, it is solely within its province to resolve such conflicts" ( Matter of Kuczinski, 8 AD3d at 283; see also Matter of Borenstein, 88 NY2d at 760; Matter of Drew, 305 AD2d at 409; Matter of Mininni v. New York City Employees' Retirement System, 279 AD2d 428, 429, lv denied 96 NY2d 722; Matter of DeNaro v. New York City Employees' Retirement System, 265 AD2d 215, lv denied 95 NY2d 769 ; Matter of Martucci v. New York City Employees' Retirement System, 248 AD2d 240; Matter of Santoro v. Board of Trustees of New York City Fire Department Article 1-B Pension Fund, 217 AD2d 660; Matter of Muffoletto v. New York City Employees' Retirement System, 198 AD2d 7; Matter of Whitten v. Spinnato, 143 AD2d 274; Matter of Bartsch v. Board of Trustees of the New York City Fire Department Article 1B Pension Fund, 142 AD2d 577).
"The courts cannot weigh the medical evidence or substitute their own judgment for that of the Medical Board if the Medical Board's determination is supported by any credible evidence and is not irrational" ( Matter of Ruzicka v. Board of Trustees of New York City Fire Dept., Article 1-B Pension Fund, 283
AD2d 581 [2001] ; see also Matter of Borenstein, 88 NY2d at 761; Matter of Schwarzrock v. Board of Trustees of the New York City Fire Dept. Article 1-B Pension, 238 AD2d 596, 597, lv denied 91 NY2d 803). "Where . . . the [1-B Medical Board] determines that an applicant is not disabled from performing firefighting duty due to an alleged injury or illness, the [Board of Trustees] must accept that determination and deny the applicant's claim" ( Matter of Schwarzrock, 238 AD2d at 596).
Here, the 1-B Medical Board detailed the medical proof it had considered, specified the nature of petitioner's complaints and outlined the results of its own physical examinations of petitioner. The 1-B Medical Board was cognizant of the diagnosis of petitioner's condition and of petitioner's subjective complaints.
Since the Medical Board's recommendation that petitioner is not disabled cannot be said to be irrational, arbitrary or capricious, it is therefore impermissible for the court to substitute its judgment for that of the Medical Board ( see Matter of Schwarzrock, 238 AD2d at 597; Matter of Santoro, 217 AD2d at 660-661). As a result, the petition is denied and the instant article 78 proceeding is dismissed.
This constitutes the decision, order and judgment of the court.