Opinion
510650/2016
11-30-2017
In the Matter of the Application of Kevin Bradley, Petitioner, v. The New York City Employees' Retirement System, THE BOARD OF TRUSTEES of the New York City Employees' Retirement System, THE MEDICAL BOARD OF THE New York City Employees' Retirement System, and THE CITY OF NEW YORK, Respondents.
Attorney for Petitioner Seelig Law Offices, LLC 299 Broadway, Suite 1600 New York, NY 10007 Attorney for Respondents Zachary W. Carter Corporation Counsel of the City of New York 100 Church Street New York, NY 10007
Attorney for Petitioner Seelig Law Offices, LLC 299 Broadway, Suite 1600 New York, NY 10007 Attorney for Respondents Zachary W. Carter Corporation Counsel of the City of New York 100 Church Street New York, NY 10007 Katherine A. Levine, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: PapersNumbered Notice of Petition with Accompanying Exhibits 1 Petitioner's Memorandum of Law in Support of Verified Petition 2 Verified Answer 3 Working Copy of Respondents' Exhibits to Verified Answer 4 Memorandum of Law in Opposition to Petition 5
This case raises the issue of whether section 207-o of the General Municipal Law ("GML"), known as the "Heart Bill," establishes an irrefutable presumption that a New York City corrections officer, who retired because he was on anticoagulation therapy for atrial fibrillation ("A-fib"), and who had a history of controlled high blood pressure, was disabled due to "diseases of the heart" attributable to the stressful nature of his employment. If this presumption cannot be rebutted, the officer would be entitled to an accident disability retirement benefit ("ADR"), which provides for a tax-free pension of three quarters of his salary, as opposed to an ordinary disability retirement ("ODR") of one half of his salary which pension is taxable.
Petitioner Kevin Bradley ("petitioner" or "Bradley") seeks an order annulling the March 2016 determination of the respondent Board of Trustees ("Trustees") of the New York City Employees' Retirement System ("NYCERS"), which denied his application for an ADR benefit pursuant to GML§ 207-o. Petitioner further seeks an order requiring respondents to provide him with ADR benefits retroactive to his retirement date. Alternatively, petitioner seeks an order remanding the matter to the Trustees for further consideration. Petitioner served as an officer of the NYC Department of Correction ("DOC") from July 1997 until March 2015. Prior to his appointment as a correction officer, petitioner passed the physical and mental examinations that the DOC administered, and was found to be physically and mentally fit to perform the full duties of a correction officer. The medical records attached to the petition reveal that in the year 2000 (following his appointment), petitioner was diagnosed with hypertension and began taking medicine for this condition in 2004. On February 13, 2015, petitioner underwent a colonoscopy, at which time it was discovered that he had A-fib, which is an irregular heart rate that commonly causes poor blood flow to the body. Atrial Fibrillation, Mayo Clinic (Feb. 8, 2013), http://www.mayoclinic.com/health/atrial-fibrillation/DS00291. Since A-fib raises the risk of blood clotting which could cause a stroke, petitioner was treated with anticoagulant therapy (a blood thinner). The Health Management Division of the DOC determined that petitioner could no longer work at the DOC because he was taking a blood thinner, which subjected him to the risk of uncontrolled bleeding if he were injured in the line of duty.
Petitioner applied for the ADR benefit under GML § 207-o, claiming in the applicant questionnaire that 1) the nature of his "injury" was "heart disease;" 2) his disabling conditions included heart issues, A-fib, hypertension, and left ventricular hypertrophy; and 3) he had did not have any similar disability before the injury. Petitioner submitted a report with the results of an echocardiogram taken on February 14, 2015, the day after his colonoscopy. The report shows that petitioner had a systolic blood pressure of 135 and diastolic pressure of 88, which is above normal. Petitioner claims that the report revealed left ventricular hypertrophy ("LVH"), which is a condition that can cause heart failure. However, this Court's examination of the report reveals no such finding.
Blood pressure is considered normal if it is below 120/80 mm Hg. http://www.mayoclinic.org/diseases-conditions/high-blood-pressure/basics/definition/con-20019580?p=1 (last visited September 14, 2017).
LVH is a condition where the walls of the left ventricle of the heart become thicker as the heart works harder to pump blood. http://www.mayoclinic.org/diseases-conditions/left-ventricular-hypertrophy/basics/definition/con-20026690 (last visited 9/18/2017).
Following its receipt of petitioner's application, NYSERS requested that petitioner provide additional medical reports in support of his application, including the most recent echocardiogram report and stress test report. Petitioner submitted several reports from his primary care physician, Dr. Eugene Holyoke, which noted that petitioner was not in acute distress and was recommended a weight reducing low-sodium, low-cholesterol diet. The reports also indicated that petitioner's blood pressure was controlled. However, two reports indicate that petitioner had an irregular heart rhythm.
Petitioner also submitted a report dated August 7, 2015 from his cardiologist, Dr. Acuna, indicating that he had a history of hypertension which was controlled with blood pressure medicine, and that he was on a medicine to control his heart rate and A-fib, and an anti-coagulant, to decrease the risk of having a stroke. Dr. Acuna indicated that he had exercise stress testing which was negative for ischemia, which is a deficiency of blood to the heart muscle, usually as a result of coronary artery disease. However, Dr. Acuna noted that petitioner did develop ventricular tachycardia ("SVT"), which is an irregular heartbeat (arrhythmia). Dr. Acuna then concluded that Bradley "has been hypertensive in a stressful job for many years that is conductive to a high adrenaline rate," and that this "may be contributing to his recurrent paroxysm of tachycardia and given the need for continued anticoagulation, he would not be able to return to his duties."
Upon examining petitioner on August 25, 2015, the Medical Board found that petitioner had murmurs associated with heart valve disease. The Medical Board did not form any opinion as to the etiology of petitioner's heart valve disease or attempt to connect it with his A-fib. The Medical Board concluded that Bradley suffered a disability because of recurrent A-fib without congestive heart failure, hypertensive heart disease, or left ventricular hypertrophy, and because he was on chronic anticoagulation therapy. The Medical Board recommended that the Board of Trustees deny petitioner's application for Disability Retirement under the provisions of section 207-o since "atrial fibrillation and cardiac murmurs are not included under the aegis of the Heart Bill."
Bradley appealed this recommendation and submitted another report from Dr. Acuna, indicating that Bradley had another echocardiogram on January 21, 2016, with the following results: "Grade 1 diastolic dysfunction and borderline/mild LVH, both of which are indicators of end organ hypertensive disease involving the heart muscle. Thus, Mr. Bradley suffers from hypertensive heart disease as well as paroxysmal A-fib that requires him to remain on anticoagulation indefinitely and is unable to return to his duties in the department of correction."
Diastolic dysfunction is a cardiac dysfunction in which left ventricular filling is abnormal and is accompanied by elevated filling pressures. 7-30 Attorneys Textbook of Medicine (Third Edition) P 30.60.
The Medical Board reaffirmed its prior recommendation, again finding that petitioner was disabled due to the fact that he was on anticoagulation therapy. The Medical Board emphasized that there was no evidence that hypertensive heart disease or coronary heart disease were the cause of A-fib. It also opined that A-fib is not covered under the Heart Bill. On March 10, 2016, the Board of Trustees adopted a resolution denying petitioner's application for retirement benefits pursuant to section 207-o.
This Court does not have the authority to weigh medical evidence and substitute its own judgment for that of the Medical Board, and the Board's finding will be sustained unless "it lacks rational basis," or is "arbitrary or capricious." Borenstein v. NYC ERS, 88 NY2d 756, 760-761 (1996); Mtr. of Drummond v. NYC ERS, 98 AD3d 1116, 1117 (2d Dept. 2012); Mtr. of Campbell v. Bd. of Trustees of NYC Fire Dept., Art. 1-B Pension Fund, 47 AD3d 926, 928 (2d Dept. 2008). In general, the Medical Board's disability determination will not be disturbed if it was based on "substantial evidence," which is generally interpreted as requiring "some credible evidence." Meyer v. Bd. of Trs. of the NYC Fire Dept., 90 NY2d 139, 147 (1997); Borenstein, supra, 88 NY2d at 760; Mtr. of Fesler v. Bratton, 48 Misc 3d 444, 449 (Sup. Ct. NY Co. 2015). Id. No substantial evidence will be found when the denial was based on a summary conclusion of no causation and lacked any factual basis. Meyer, supra., 90 NY2d at 147; Mtr. of Pugh v Kelly, 2013 NY Slip Op 30880(U), 2013 NY Misc. LEXIS 1755 (Sup. Ct. NY Co. 2013); Mtr. of Guillo v New York City Employees' Retirement Sys., 2013 NY Slip Op 50539(U), 39 Misc 3d 1208(A), 1208A (Sup. Ct. Kings Co. 2013).
Section 207-o of the GML provides that "any condition of impairment of health caused by diseases of the heart, resulting in total or partial disability ... to a paid member of the uniformed force of a paid correction department, ... who successfully passed a physical examination on entry into the service of such department, which examination failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence ["Heart Bill presumption"]." The theory behind this presumption, as it relates to corrections officers, is that heart conditions are an occupational hazard for corrections officers, and that they are generally not the result of any particular incident but involve a gradual and progressive degeneration as a result of the continuous stress and strain of the job. Uniformed Firefighters Asso. v. Beekman, 52 NY2d 463, 471 (1981); Mtr. of Sha-Bethea v Kelly, 2009 NY Slip Op 31675(U), 2009 NY Misc. LEXIS 5331, *21 (Sup. Ct. NY Co. 2009).
It is undisputed that petitioner successfully passed the physical examination administered by the DOC prior to his appointment as a correction officer, and that the examination failed to reveal any evidence of heart disease. The issue is whether petitioner's condition of A-fib, which required him to take anticoagulation therapy, thus rendering him disabled, was caused by "diseases of the heart." The answer depends on whether the hypertension constitutes a "disease of the heart," and whether it caused petitioner to have A-fib. If the latter two questions may be answered in the affirmative, the Heart Bill presumption applies.
Without offering a detailed explanation, petitioner broadly claims, with the support of one doctor's conclusory opinion, that his hypertension caused the A-fib. Respondents contend that the medical record does not support this claim since echocardiogram reports, electrocardiogram tracings, and the Medical Board's own physical examination of petitioner reveal that petitioner did not suffer from hypertension's "signature disease," namely, LVH.
Contrary to respondents' contention, the Court's examination of the echocardiogram report dated 1/21/2016 reveals "borderline left ventricular hypertrophy," and it is also clear from the medical records that petitioner has a long history of being treated for hypertension. Since neither petitioner nor respondent sufficiently explain causation or lack thereof between petitioner's hypertension and atrial fibrillation, the nature of petitioner's A-fib is "idiopathic," meaning that the cause is unknown. Mtr. of Travers v. Kelly, 12 Misc 3d 887, 890 (Sup. Ct. NY Co. 2006).
When a corrections officer has an idiopathic disabling heart condition which is accompanied by hypertension, it is presumed that the disabling heart condition was incurred in the performance of his duties as a corrections officer. See, McCarthy v. Bd. of Trs., 306 AD2d 156, 157 (1st Dep't 2003) (Evidence of heart disease accompanying petitioner's disabling A-fib, including hypertension and left ventricular hypertrophy, raised a presumption that disability was job-related); Lunt v. Kelly, 227 AD2d 200 (1st Dep't 1996) (Respondents failed to rebut presumption that petitioner's atrial fibrillation and hypertension were incurred in the performance of his duties as police officer); Travers, supra, 12 Misc 3d at 890 (Where the cause of the petitioner's heart condition of aortic valve disease was unknown, and was accompanied by hypertension, Heart Bill presumption applied). Since petitioner's disabling condition of atrial fibrillation is idiopathic, and was accompanied by a history of hypertension, it is presumed to have been incurred in the course of his duties as a corrections officer regardless of the fact that it was treated with medicine.
In order to rebut this presumption, the Medical Board must prove that petitioner's heart condition was not caused by his duties as a corrections officer. Mtr. of Maldonado v Kelly, 86 AD3d 516, 520 (1st Dep't 2011); Mtr. of Stegmuller v Brown, 216 AD2d 23, 23 (1st Dep't 1995); Mtr. of Richter v Kelly, 2012 NY Slip Op 31994(U), 2012 NY Misc. LEXIS 3625, *10 (Sup. Ct. NY Co. 2012). The Heart Bill presumption may be rebutted when medical reports establish that the heart condition was caused by congenital defects, childhood disease (such as rheumatic fever), or by conditions that are not related to work stress. Quilty v. Ward, 193 AD2d 439, 440 (1st Dep't 1993); Simmons v. Herkommer, 98 AD2d 651, 651-652 (1st Dep't 1983), affd 62 NY2d 711 (1984)); Mtr. of Ploss v Bratton, 2016 NY Slip Op 51058(U), 2016 NY Misc. LEXIS 2541 (Sup. Ct. NY Co. 2016), *7, Mtr. of Francese v Kelly, 2010 NY Slip Op 31147(U), 2010 NY Misc. LEXIS 2057, *12 (Sup. Ct. NY Co. 2010); Mtr. of Travers, 12 Misc 3d at 890. The could also be rebutted with evidence that a petitioner's A-fib preceded his hypertension by several years. Matter of Barbour v Kelly, 2010 NY Slip Op 50079(U), 906 N.Y.S.2d 777, 777 (Sup. Ct. NY Co. 2010).
The Medical Board fails to rebut the Heart Bill presumption as it has not proffered any evidence that petitioner's heart condition was caused by a congenital defect or childhood disease, or that petitioner's condition of A-fib preceded his hypertension. Instead, it opines in a conclusory fashion that there was no evidence that hypertensive heart disease or coronary heart disease caused petitioner's A-fib, and that petitioner does not have LVH, which petitioner rebuts through the 1/21/2016 echocardiogram report. The Medical Board also fails to explain why A-fib and cardiac murmurs which are accompanied by hypertension do not constitute a disease of the heart within the aegis of the Heart Bill. In the absence of substantial medical evidence that petitioner's disabling heart condition is not related to his service as a corrections officer, the Trustees' determination to deny his disability retirement benefits under the Heart Bill based upon the Medical Board's recommendation lacks a rational basis and is arbitrary and capricious.
Accordingly, this Court annuls the Trustees' determination to deny petitioner ADR benefits and directs respondents to grant petitioner ADR benefits retroactive to March 11, 2016, the date upon which his application was denied. This constitutes the Decision and Order of the Court. DATED: November 30, 2017 KATHERINE A. LEVINE Justice Supreme Court