Opinion
51836/2017
01-24-2019
In the Matter of the Application of Bartholomew CODD, Petitioner, v. The NEW YORK FIRE DEPARTMENT PENSION FUND, the Board of Trustees of the New York Fire Department Article 1-B Pension Fund, Daniel A. Nigro, Commissioner of the Fire Department of the City of New York, and Chairman of the aforesaid Board, and the City of New York, Respondents.
Attorney for Petitioner: Philip H. Seelig, Esq., 299 Broadway, Suite 1600, New York, NY 10007 Attorneys for Respondent: Zachary W. Carter, Corporation Counsel of the City of New York, 100 Church Street, New York, NY 10007, Of Counsel: Teresita V. Magsino, Esq.
Attorney for Petitioner: Philip H. Seelig, Esq., 299 Broadway, Suite 1600, New York, NY 10007
Attorneys for Respondent: Zachary W. Carter, Corporation Counsel of the City of New York, 100 Church Street, New York, NY 10007, Of Counsel: Teresita V. Magsino, Esq.
Katherine A. Levine, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Notice of Petition with Accompanying Affidavits and Exhibits 1
Respondent's Verified Answer to Petition with Accompanying Affidavits and Exhibits 2
Petitioner's Memorandum of Law in Support of the Verified Petition 3
Respondent's Memorandum of Law 4
Petitioner's Reply Memorandum of Law In Further Support of the Verified Petition 5
Petitioner Chief Bartholomew Codd ("petitioner" or "Codd"), a firefighter with the City of New York Fire Department ("FDNY"), seeks an order annulling the determination of the Board of Trustees ("Trustees" or "respondent") of the New York Fire Department Pension Fund ("Pension Fund"), dated June 28, 2017, which affirmed the opinion of the Medical Board of the Pension Fund ("Medical Board"), that petitioner was not entitled to an accidental disability retirement benefit ("ADR benefit"). The Medical Board recommended to the Trustees that the application be denied pursuant to New York City Administrative Code ("NYCAC") § 13-353 because Codd's disabling condition in his right knee, which precluded him from engaging in full firefighting duties, was caused by degenerative joint disease, and was not due to a line-of-duty accident.
After being appointed to the FDNY as a firefighter in 1980, petitioner reported seven injuries to his right knee over the course of his 35 years with the FDNY, which caused pain and buckling. The injury which formed the basis for petitioner's 2015 application for an ADR benefit occurred on April 8, 1989, when he struck his right knee on an undetermined object on the side of a roof bulkhead as he was descending from a roof. Following the incident, petitioner took a six day leave and returned to full duty. The clinic medical director of FDNY examined petitioner and diagnosed him with a right knee cyst. Dr. Mark Sherman, an outside orthopedist, examined petitioner approximately ten months after the incident, and stated in a report, dated February 13, 1990, that petitioner had a lump in his right knee for approximately one year with "no history of specific injury," and that "the pain began with running." In April 1990, following an MRI which revealed that petitioner had a lateral meniscal tear and a related cyst in his right knee, Dr. Sherman performed arthroscopic surgery and treated the tear by performing a subtotal (partial) lateral meniscectomy. The FDNY authorized and paid for the surgery. Petitioner returned to full duty 24 days after the surgery, and continued to work for 24 years.
A meniscus is cartilage that acts like a cushion between a person's shinbone and thighbone. https://www.mayoclinic.org/diseases-conditions/torn-meniscus /symptoms-causes/syc-20354818
An arthroscopy is a procedure for diagnosing and treating joint problems. A narrow tube with a fiber-optic video camera is inserted through a small incision to view the inside a joint, and the image is transmitted to a high-definition video monitor. https://www.mayoclinic.org/tests-procedures/arthroscopy /about/pac-20392974
Petitioner had MRIs in 2008 and 2009, which revealed postoperative changes compatible with a partial lateral meniscectomy, and mild to moderate osteoarthritis. In 2009 petitioner started seeing Dr. Jo A. Hannafin, an orthopedic surgeon, for right knee locking and pain. In 2014, petitioner was injured on the job when he walked down a ramp that suddenly shifted, which caused his right knee to buckle. Petitioner then had an MRI in December 2014, which revealed that he had "severe degenerative joint disease of the lateral joint compartment with extensive postoperative changes and degenerative tear of the lateral meniscus." In a report dated January 25, 2015, Dr. Hannafin diagnosed petitioner with "lateral compartment osteoarthritis resulting from previous near subtotal lateral meniscectomy due to a previous lateral meniscal tear." She noted that Codd was symptomatic to the extent that it was affecting his ability to perform his fireman duties.
Osteoarthritis is a form of arthritis, which occurs when the protective cartilage on the ends of the bones wears down. downhttps://www.mayoclinic.org/diseases-conditions/osteoarthritis /symptoms-causes/syc-20351925.
By letter dated February 24, 2015, Dr. K.J. Kelly, then Chief Medical Officer of the FDNY, informed Daniel A. Nigro, then Fire Commissioner, that petitioner was "[u]nfit for full firefighting duty status post subtotal lateral meniscectomy approximately 25 years ago in 1990 secondary to service connected injury with subsequent osteoarthritis of the lateral compartment with obliteration of the joint space of the lateral compartment." In other words, petitioner was incapacitated due to osteoarthritis, which developed 25 years after knee surgery following a line-of-duty injury. On March 6, 2016, the Fire Commissioner approved the FDNY's recommendation that petitioner receive an ADR benefit. However, upon reviewing petitioner's application for an ADR benefit, the Medical Board concluded that petitioner's disability resulted from chronic degenerative joint disease, as opposed to a line-of-duty injury, and recommended that he receive ordinary disability benefits, and not an ADR benefit. At a meeting on January 27, 2016, the Trustees adopted the Medical Board's recommendation.
Petitioner asserted that the Trustees did not consider all the evidence, and he stipulated with respondents that the matter be remanded to the Trustees for reconsideration. The Medical Board reviewed petitioner's application and again recommended denial because it found that petitioner's 1989 injury was "relatively minor," and could not be the proximate cause for his arthritis 24 years later. Based upon Dr. Sherman's report, dated February 13, 1990, that petitioner had "no history of specific injury," and that "the pain began with running," the Medical Board also found that running was the precipitating cause of petitioner's disability, At a meeting on June 28, 2017, the Trustees again adopted the Medical Board's recommendation for denial. The minutes of the meeting state: "[T]he accident has to be the proximate cause of the injury and honestly, I think that an injury from 1989, that kept him out of work for a week or a few days more than a week, to say that it was the proximate cause of his disability 28 years later or whatever it is, it defies belief." In addition, the Trustees noted that the 1989 injury was "listed as a contusion; it's not listed as a serious injury," and that the petitioner had chronic degenerative joint disease.
Petitioner claims that the Trustees' decision was arbitrary and capricious because his osteoarthritis was caused by the meniscectomy, which was necessitated by his 1989 injury. He further contends that the fact that the FDNY authorized and paid for his 1990 meniscectomy proves that his disability was service related.
A firefighter is entitled to an ADR benefit when a medical examination and investigation conducted by the Medical Board show that he is "physically or mentally incapacitated for the performance of city-service as a natural and proximate result of an accidental injury received in such city-service," and the Trustees conclude, after conducting an independent evaluation, that the service-related injury caused the firefighter's disability. NYCAC § 13-353 ; Meyer v. Bd. of Trs. of the N.Y.C. Fire Dept. , 90 NY2d 139, 144 (1997) ; Mtr. of Boyd v. NYCERS , 60 Misc 3d 608, 613 (Sup. Ct. Kings Co. 2018). The Trustees' determination will be sustained if it is based on substantial evidence, has a rational basis, and is not arbitrary or capricious. Borenstein v. NYCERS , 88 NY2d 756, 760 (1996). To qualify for an ADR benefit, petitioner has the threshold burden of establishing a causal relationship between the service-related accident in the Fire Department and the claimed disability. McMurrough v. Board of Trustees of the N.Y.C. Fire Dep't , 227 AD2d 626, 626 (2d Dept. 1996) ; Coleman v. Board of Trustees of N.Y.C. Fire Dep't, Article 1-B Pension Fund , 224 AD2d 522, 523 (2d Dept. 1996).
Pursuant to NYCAC § 13-353, in order to be eligible for an ADR benefit, the applicant must prove that his injury was an accident. "Accidental" means "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact." McCambridge v. McGuire , 62 NY2d 563, 568 (1984) ; Mtr. of Walsh v. Scopetta , 73 AD3d 1192, 1193 (2d Dept. 2010). An injury which could be expected as the result of activity undertaken in the performance of ordinary employment duties is not deemed to be accidental. Mtr. of Kelly v. DiNapoli , 30 NY3d 674, 681 (2018) ; Zajdowicz v. New York State & Local Police & Fire Retirement Sys. , 267 AD2d 863, 866 (3d Dept. 1999). A line-of-duty accident is deemed the natural and proximate cause of the petitioner's disability if it either precipitated the development of a latent condition or aggravated a preexisting condition. Tobin v. Steisel , 64 NY2d 254, 257 (1985) ; Mtr. of Andrus v. DiNapoli , 114 AD3d 1078, 1079 (3d Dept. 2014) ; Hacker v. Board of Trustees of NY City Fire Dep't Article 1-B Pension Fund , 228 AD2d 598, 599 (2d Dept. 1996).
This Court deems petitioner's injury wherein he struck his right knee on an undetermined object on the side of a roof bulkhead as he was descending from a roof to be "accidental" since it was "unexpected," "out of the ordinary," and "injurious in impact." See, Mtr. of Pratt v. Regan , 68 NY2d 746, 747-748 (1986) (while catching a heel on a running board of a fire truck and losing one's balance might be considered an inherent risk of being a firefighter, coming down hard on the other foot in pothole was not and therefore the injury was deemed "accidental"); Zajdowicz v. New York State & Local Police & Fire Retirement Sys. , 267 AD2d 863, 866 (3d Dept. 1999) (injury sustained by firefighter to his knee as he left scene of fire and tripped and fell over protruding piece of concrete would be deemed an accident, as it constituted hazardous condition unrelated to his employment). This Court further notes that respondent does not dispute that petitioner's injury was accidental.
Petitioner's claim then turns on whether his 1989 injury was the proximate cause of his disability. This Court upholds the Trustees' finding that none of the medical records presented by petitioner proves a causal link between his work-related injuries and his disability. Proximate cause is defined as that "which in a natural sequence, unbroken by any new cause, produces that event and without which that event would not have occurred." Caraballo v. United States , 830 F.2d 19, 22 (2d Cir. 1987), citing to Rider v. Syracuse Rapid Transit Ry. Co. , 171 NY 139, 147 (1902). An intervening act which is far removed breaks the causal connection and is deemed to be a superseding cause. De'L. A. v. City of New York , 158 AD3d 30, 36 (1st Dept. 2017).
Dr. Sherman's report, which was based upon his examination and information that the petitioner provided ten months after the accident, stated that petitioner had a lump in his right knee for approximately one year with "no history of specific injury," and that "the pain began with running." This report raises questions regarding petitioner's claim that his disability was caused by the 1989 incident. Dr. Hannafin's report, dated January 25, 2015, which diagnosed petitioner with "lateral compartment osteoarthritis resulting from previous near subtotal lateral meniscectomy due to a previous lateral meniscal tear" also does not support petitioner's claim of causation since it does not even refer to the 1989 injury. Furthermore, the fact that petitioner returned to full time duty less than a week after the incident militates against a finding that the incident was the cause of his disability. See, Mtr. of Dellaripa v. DiNapoli , 150 AD3d 1603, 1605 (3d Dept. 2017) (decision to deny the petitioner ADR benefits was rationally based where he returned to full duty police work approximately six months after his line of duty injury without surgical intervention).
The fact that the FDNY authorized and paid for petitioner's 1990 meniscectomy also does not prove that his disability was service related. Payment of expenses may be "genuinely altruistic," and is not an admission of liability. 3 Bender's New York Evidence § 153.07 (2018). See also, Graham v. Kone, Inc. , 130 AD3d 779, 780 (2d Dept. 2015) (evidence of subsequent repairs not admissible in negligence case); Cacciolo v. Port Auth. , 186 AD2d 528, 530 (2d Dept. 1992) (same); Di Paolo v. Somma , 111 AD2d 899, 900 (2d Dept. 1985) (as a matter of public policy, evidence of subsequent remedial measures must be excluded when offered as an admission of negligence).
In sum, this Court does not consider the 1989 injury to be the proximate cause because petitioner's disability in 2015 did not follow this injury in a natural sequence, unbroken by any new cause. Petitioner's 1990 surgery was an intervening cause and he subsequently worked for 24 years. Finally, common sense dictates that petitioner's theory that his knee injury caused his disability 25 years later is speculative and unsubstantiated.
Therefore, petitioner failed to sustain his burden of establishing a causal connection between the incident of 1989 and his disabling osteoarthritis, and the Trustees' decision was warranted by the evidence, and was not arbitrary and capricious. Accordingly, this Court will not disturb the Trustees' decision that petitioner is entitled to an ordinary retirement benefit, and not an ADR benefit.
This constitutes the Decision and Order of the Court.