Opinion
107987/10.
January 18, 2011.
Jeffrey I. Goldberg, Esq., Jeffrey L. Goldberg, P.C., Lake Success, NY, for petitioner.
Jeremy I. Huntone, ACC, Michael A. Cardozo, Corporation Counsel, New York, NY, for respondents.
DECISION JUDGMENT
By notice of petition and verified petition dated June 15, 2010, petitioner brings this Article 78 proceeding seeking an order reviewing and annulling respondents' denial of his application for an accidental disability retirement allowance and directing respondents to retire petitioner with the allowance retroactive to the date of his service retirement. Respondents oppose the petition.
I. BACKGROUND
Petitioner commenced his employment with the New York City Police Department (NYPD) on July 15, 1986, and remained continuously employed with it until his retirement. (Verified Petition, dated June 15, 2010 [Pet.]). While employed, petitioner was a member of NYPD's Pension Fund. ( Id.).
On July 29, 1996, while on duty and chasing a suspect, petitioner fell to the ground from a fence, thereby sustaining a line of duty (LOD) injury to his lower back, ( Id., Exh. A). Seven years later, on July 14, 2003, petitioner injured his back while moving tables for an NYPD training course. ( Id.).
On December 6, 2005, petitioner submitted an application for an Accident Disability Retirement (ADR). In response and on petitioner's behalf, NYPD submitted an application for an Ordinary Disability Retirement (ODR). ( Id., Exh. D). On July 22, 2006, petitioner retired from the NYPD. (Verified Answer, dated Sept. 2, 2010 [Ans.], Exh. 7).
On September 5, 2006, respondents' Medical Board examined petitioner and approved his ADR application based on his July 2003 injury. (Pet., Exh. G). In making its determination, the Medical Board referenced petitioner's 2004 MRI results, records of his August 2004 MRI, a February 2005 MRI, treatment records, a February 27, 2006 report from his orthopedic surgeon, and its own physical examination of petitioner. ( Id.).
On December 13, 2006, respondent Board of Trustees reviewed petitioner's application and remanded it to the Medical Board for a review of petitioner's medical history, directing that "particular attention" be paid to the fact that `"since 1996 [petitioner] was out 133 days on limited and restricted duty and he does have documented continuous medical treatment from that date." (Ans., Exh. 9).
On March 6, 2007, the Board of Trustees again reviewed petitioner's application although the Medical Board had not yet reviewed it on remand. The Board of Trustees again remanded the application for the Medical Board to review petitioner's medical history since 1996. (Pet., Exh. J).
On March 6, 2007, the Medical Board reviewed petitioner's application to determine whether he had established that his 1996 injury and not his 2003 injury caused his disability. ( Id., Exh. K). While the Medical Board reaffirmed its decision to approve petitioner's ADR application, it did not change his date of injury from 2003 to 1996, finding that based on the medical evidence, "there is no reasonable way of relating the 2004 surgery to the 1996 injury." ( Id.).
On June 13, 2007, the Board of Trustees reviewed petitioner's application and again remanded it to the Medical Board for a review of new information submitted by petitioner, ( Id., Exh. N). On October 23, 2007, the Medical Board again approved petitioner's application based on the July 2003 injury, observing that petitioner had complained of back pain before 2003 and concluding that the 2003 injury could be considered an exacerbation of the 1996 injury. ( Id., Exh. P). The Medical Board relied on a January 8, 2007 letter from Dr. Rosenberg, who opined that petitioner's 1996 back injury was exacerbated by the July 2003 incident, and on two letters from petitioner's surgeon, dated January 15, 2007 and August 3, 2007, in which he opined that petitioner's disability was caused by the 1996 incident. ( Id., Exhs. II, I, O, P).
On March 12, 2008, the Board of Trustees reviewed petitioner's application and decided by a six to six vote to retire petitioner on ODR rather than ADR, finding that petitioner's 2003 injury resulted from an incident of an "exertional nature" and not an accident. (Ans., Exh. 14).
On or about July 9, 2008, petitioner commenced an Article 78 proceeding against respondents. By decision and judgment dated December 12, 2008, another justice of this court granted the petition to the extent of remanding the matter to respondents to determine whether the July 2003 injury exacerbated the injuries sustained by petitioner in 1996, and if respondents answered the question affirmatively, to determine whether the 1996 injury resulted from an accident. (Pet., Exh. R). That court also found that the Medical Board's determination that petitioner's 2003 injury was the relevant injury for his application was rational, and that the Board of Trustees did not misconstrue the law when it found that the 2003 injury did not result from an accident. ( Id.).
After respondents moved to reargue the decision, by decision and judgment dated April 30, 2009, the justice informed the parties that the matter was remanded for respondents to determine whether the 1996 incident, rather than the 2003 incident, caused petitioner's injury, as follows:
The Medical Board should be considering whether petitioner's disability as manifested in 2003 was, in fact, a continuing injury which derived from the 1996 event, as opposed to a latent condition exacerbated by the 2003 incident. If, in fact, such a finding is made on remand, then consistent with my earlier decision, the Trustees can focus exclusively on the 1996 event to see if it qualifies as a line of duty accident.
( Id., Exh. S). The court observed that if the 2003 incident was found to be an exacerbation of the 1996 injury, the 2003 incident would also have to be deemed an accident in order for petitioner to qualify for an ADR. ( Id.).
On September 9, 2009, the Board of Trustees remanded petitioner's application to the Medical Board with copies of the court's decisions and a New York City Law Department Memorandum, dated August 12, 2009, outlining the procedural history of the application and the court's direction to the Board. ( Id., Exh. U).
On October 20, 2009, the Medical Board reviewed petitioner's application and reaffirmed its decision to approve the ADR based on petitioner's 2003 injury, stating that:
The Medical Board makes reference to a judicial remand . . . dated August 12, 2009. It should be noted that this case has been reviewed by several different Medical Boards with different members. Each of these Medical Boards has come to the same conclusion, i.e. that [petitioner's] 2003 line of duty injury was the cause of his disability.
The Medical Board thus determined that notwithstanding petitioner's continuous history of back problems, "the competent causal factor is the line of duty injury of July 14, 2003 which is considered to be an exacerbation of the line of duty injury of July 29, 1996." (Id., Exh. V).
On February 25, 2010, the Board of Trustees, by a six to six vote, denied petitioner's ADR application, again finding that the 2003 incident was not an accident. (Ans., Exh. 19).
II. CONTENTIONS
Petitioner argues that respondents' denial of his ADR. application was arbitrary and capricious and contrary to the prior court orders as the Board of Trustees failed and/or refused to consider his entire medical history to determine whether the 1996 injury caused the 2003 injury, that the denial was contrary to substantial medical evidence showing that his 2003 injury was directly related to the 1996 injury, and that the Board of Trustees failed and/or refused to grant him an ADR notwithstanding the Medical Board's approval of his application. (Pet.). He maintains that as his 1996 injury was the result of an accident, he is entitled him to an ADR, that the Medical Board failed to address the court's concerns, and that as the Medical Board answered the court's question in the affirmative, the Board of Trustees acted arbitrarily and capriciously in denying his application. (Petitioner's Memo. of Law, dated Aug. 30, 2010).
Respondents contend that their determinations are supported by credible evidence, including numerous medical reports and their own examination of petitioner, and are thus neither arbitrary nor capricious. (Ans.). They observe that the Board of Trustees has the ultimate authority to determine whether an applicant's injury resulted from an accident and whether one is entitled to an ADR, and that the Medical Board has the authority to resolve any conflict in medical evidence and reach a conclusion based on objective medical evidence. (Respondents' Memo. of Law, dated Sept. 2, 2010). They also note that the Board of Trustees's determination that the 2003 injury was not an accident for pension purposes is supported by case law and is neither arbitrary nor capricious, and that even if petitioner's 2003 injury was an exacerbation of his 1996 injury, petitioner would not qualify for an ADR unless the 2003 injury was deemed an accident. ( Id.).
In reply, petitioner argues that the Board of Trustees failed to consider whether the 1996 injury was an accident as ordered by the court. (Reply Memo. of Law, dated Sept. 28, 2010).
III. ANALYSIS A. Applicable law
In reviewing an administrative agency's determination as to whether it is arbitrary and capricious under CPLR Article 78, the test is whether the determination "is without sound basis in reason and . . . without regard to the facts." ( Matter of Pell v Bd. of Educ. of Union Free, School Dist. No. 1 of Towns of Scarsdale Mamaroneck, Westchester County, 34 NY2d 222, 231; Matter of Kenton Assoc. v Div. of Hous. Community Renewal, 225 AD2d 349 [1st Dept 1996]). Moreover, the determination of an administrative agency, "acting pursuant to its authority and within the orbit of its expertise, is entitled to deference, and even if different conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency when the agency's determination is supported by the record." ( Matter of Partnership 92 LP Bldg. Mgt. Co., Inc. v State of N.Y. Div. of Hous. Community Renewal, 46 AD3d 425, 429 [1st Dept 2007], affd 11 NY3d 859).
Pursuant to Administrative Code § 13-252, a police officer may retire with an ADR upon application to the commissioner stating that the applicant:
is physically or mentally incapacitated for the performance of city-service, as a natural and proximate result of such city-service, and certifying the time, place and conditions of such city-service performed by such member resulting in such alleged disability and that such alleged disability was not the result of wilful negligence on the part of such member and that such member should, therefore, be retired.
And, upon a medical examination and investigation showing that the applicant is physically or mentally incapacitated
as a natural and proximate result of an accidental injury received in such city-service while a member, and that such disability was not the result of wilful negligence on the part of such member and that such member should be retired, the medical board shall so certify to the board, stating the time, place and conditions of such city-service performed by such member resulting in such disability, and such board shall retire such member for accident disability forthwith.
The determination of an ADR application requires consideration of two factors. First, the Medical Board decides whether the applicant is disabled and should be retired ( Matter of Meyer v Bd. of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 144-145), and if so whether the applicant is disabled. It must then decide whether the disability resulted from a service-related accident, and certify its recommendation on this issue to the Board of Trustees. ( Id. at 144-145). The Board of Trustees must then determine whether the disability was caused by a service-related accident. (Id.).
B. Was the Medical Board's determination arbitrary and capricious?
A Medical Board's determination will be sustained unless it lacks a rational basis or is arbitrary or capricious, and it must be based on "some credible evidence." ( Matter of Borenstein v. New York City Empls. `Retirement Sys., 88 NY2d 756, 760-761). The Medical Board has the authority to resolve any conflicting medical evidence or opinions, and in reviewing the Medical Board's decision, the court may not examine the medical evidence and substitute its own judgment for that of the Medical Board. ( Id.).
Here, the Medical Board consistently found that petitioner's 2003 injury solely caused the disability at issue in his ADR application, and that it was an exacerbation of the 1996 injury. The finding is based on objective medical evidence, consisting of petitioner's medical records and letters submitted by his physicians, and the Medical Board's own physical examination of him, and the Medical Board duly resolved the conflict raised by the medical opinions. As the Medical Board's determination was thus based on "some credible evidence," petitioner has failed to establish that it was without a rational basis or arbitrary or capricious. ( See Matter of Lorenzo v DiNapoli, 67 AD3d 1311 [3d Dept 2009] [determination that petitioner failed to establish that disability was caused by earlier incidents was supported by substantial evidence]; Matter of Dalton v Kelly, 16 AD3d 200 [1st Dept 2005], lv denied 10 NY3d 705 [Medical Board's determination that petitioner's disability was not caused by prior accident was supported by some credible evidence and could not be disturbed]; Matter of Doyle v Kelly, 8 AD3d 125 [1st Dept 2004] [to extent petitioner relied on accident that occurred before second accident as cause of disability, it could not be said as matter of law that current injuries were caused by first accident]; see also Matter of Meyer, 90 NY2d at 139 [Medical Board's detailed and fact-based reports explaining basis for determination constituted credible evidence]; Matter of Borenstein, 88 NY2d at 761 [as Medical Board "detailed what medical proof had been considered, specified the nature of respondent's complaints and outlined the results of its physical examinations of respondent," determination was based on some credible evidence and was not arbitrary or capricious]; Matter of Christian v New York City Empls.' Retirement Sys., 56 NY2d 841 [Medical Board explained reasoning behind decision which was warranted by evidence before it]; Schwartz v Kelly, 36 AD3d 563 [1st Dept 2007] [Medical Board's decision supported by some credible evidence including its own examination of petitioner and test results]).
While petitioner relies on his physician's opinions to argue that the Medical Board's determination was irrational and arbitrary and capricious, the Medical Board has the authority to reject those opinions and rely on its own examination of him as well as its review of his medical reports. ( See Matter of Finkelstein v Kelly, 41 AD3d 122 [1st Dept 2007] [determination based on Board's own examinations and MRI reports and Board properly considered conflicting medical evidence]; Matter of Dittrich v Bd. of Trustees, Police Pension Fund, Art. II, 37 AD3d 342 [1st Dept 2007] [conflicts in medical evidence were for Medical Board to resolve]; Matter of Clarke v Bd. of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 46 AD3d 559 [2d Dept 2007] [although independent consultant's findings differed from that of other physicians who had examined petitioner, Medical Board had authority to resolve conflict]; Matter of Vastola v Bd. of Trustees of N. Y. City Fire Dept., Art. 1-B Pension Fund, 37 AD3d 478 [2d Dept 2007] [although medical conclusions in report differed from petitioner's physicians' opinions, they constituted some credible evidence on which Medical Board based its determination, and thus court properly denied petition]).
C. Was the Board of Trustees's determination arbitrary and capricious?
The Board of Trustees is bound by the Medical Board's determination as to whether an ADR applicant is disabled but must make its own determination as to whether the disability was caused by a service-related accident. ( Matter of Canfora v Bd. of Trustees of Police Pension Fund of Police Dept. of the City of N. Y., Art. II, 60 NY2d 347). If the Board of Trustees' determination to deny an ADR application is reached by a six to six tie vote, the determination may be set aside only if "it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident." ( Id.).
As the Medical Board found that the 2003 incident exacerbated the 1996 injury, and that the 1996 injury did not cause petitioner's disability, the Board of Trustees had only to determine whether the 2003 injury qualified as an accident. ( See Matter of Tobin v Steisel, 64 NY2d 254 [accident that aggravates pre-existing injury is cause of that injury]).
An accident in this context has been defined as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" and thus "an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury . . ." ( Matter of Lichtenstein v Bd. of Trustees of Police Pension Fund of Police Dept. of City of N. Y., Art. II, 57 NY2d 1010, 1012).
As injuries resulting from an applicant's routine employment duties, not involving sudden unexpected events, do not qualify as accidents, injuries arising from incidents involving movements such as bending or lifting or moving objects have been found not to constitute accidents. ( See eg Matter of Lichtenstein, 57 NY2d at 1012 [back injury sustained while bending over car's hood to place summons on windshield did not result from accident]; Matter of Herlihy v DiNapoli, 75 AD3d 892 [3d Dept 2010] [back injury occurred when officer lifted trailer onto tow hitch]; Matter of McGerard v DiNapoli, 51 AD3d 1328 [3d Dept 2008] [injury sustained while moving bleachers]; Matter of Sinclair v New York State Local Retirement Sys., 42 AD3d 595 [3d Dept 2007] [employee injured while lifting bucket of water]; Matter of Smith v New York City Empls.' Retirement Sys., 215 AD2d 256 [1st Dept 1995] [back injury sustained while lifting wheelbarrow into dump truck]; Matter of Jacobellis v Bd. of Trustees of Police Pension Fund of Police Dept. of City of N. Y., Art. II, 140 AD2d 283 [1st Dept 1988] [officer injured while lifting typewriter]; Matter of Caramante v Regan, 129 AD2d 850 [3d Dept 1987], lv denied 69 NY2d 611 [officer injured back while attempting to move desk]; Matter of Voorhees v Regan, 122 AD2d 326 [3d Dept 1986] [officer injured back while bending over to file documents in file cabinet]; Matter of Menna v New York City Empls.' Retirement Sys., 91 AD2d 537 [1st Dept 1982], affd 59 NY2d 696 [1983] [patrolmen suffered back injury when placing spare tire in patrol car's trunk]; Matter of Aiello v McGuire, 124 Misc 2d 415 [Sup Ct, New York County 1984], affd 111 AD2d 95 [1st Dept 1985], lv denied 65 NY2d 608 [officer injured while moving trays]). Given these precedents, petitioner's back injury, which was caused by his exertion when moving tables, is not, as a matter of law, a disability naturally and proximately resulting from a service-related accident.
And, having failed to demonstrate that the injury resulted from an accident, petitioner has also failed to demonstrate that the determination was irrational or arbitrary and capricious. ( See Matter of Walsh v Scopetta, 73 AD3d 1192 [2d Dept 2010], lv granted 2010 WL 5071206, 2010 NY Slip Op 90589 [as cause of injury was not unexpected, determination that injury was not caused by accident was rationally based and not arbitrary and capricious, and court properly found that it could not determine as matter of law that petitioner's disability resulted from service-related accident]; Matter of Smith, 215 AD2d at 256 [determination that injury sustained while lifting wheelbarrow into dump truck was not caused by accident not arbitrary and capricious]; Hippie v Ward, 146 AD2d 201 [1st Dept 1989], lv denied 74 NY2d 614 [as petitioner did not prove that disability was caused by accident, denial of ADR application sustained]).
Moreover, even if the Board of Trustees had considered whether petitioner's 1993 injury, caused when he fell from a fence while chasing a suspect, resulted from a service-related accident, petitioner has not shown that his ADR application would have been approved. ( See Matter of Melendez v New York State Comptroller, 54 AD3d 1128 [3d Dept 2008], lv denied 12 NY3d 706 [as pursuit of suspects is ordinary employment duty of police officer, officer's injury sustained when he climbed and fell off fence while chasing suspect was inherent risk of employment and not accident]; see also Matter of Fischer v New York State Comptroller, 46 AD3d 1006 [3d Dept 2007] [at time of injury, petitioner was engaged in ordinary police work in searching for prowler and thus injury did not result from accident]; Matter of Pappalardo v Hevesi, 34 AD3d 1021 [3d Dept 2006] [as petitioner injured knee during foot pursuit of suspect when he slipped on unknown substance, incident arose from risk inherent in his normal duties and was thus not accident]; Matter of Penkalski v McCall, 292 AD2d 735 [3d Dept 2002] [chasing suspect part of police work]),
D. Did respondents comply with the remand directions?
In the decision granting reargument, the court stated that it was remanding the matter for the Medical Board to consider:
whether petitioner's disability as manifested in 2003 was, in fact, a continuing injury which derived from the 1996 event, as opposed to a latent condition exacerbated by the 2003 incident. If, in fact, such a finding is made on remand, then consistent with my earlier decision, the Trustees can focus exclusively on the 1996 event to see if it qualifies as a line of duty accident.
The court thus directed a two-step inquiry: (1) whether petitioner's disability was caused by the 1996 incident or was a latent condition exacerbated the 2003 incident; and (2) if the disability was caused by the 1996 incident, then did the 1996 incident qualify as an accident.
Again, the Medical Board found that the 1996 accident did not cause petitioner's disability, finding rather that the 2003 injury exacerbated the 1996 line of duty injury. Thus, having concluded that petitioner's disability was not caused by the 1996 incident and that the 1996 injury was exacerbated by the 2003 incident, the Board of Trustees was not required to consider whether the 1996 incident qualified as an accident. Consequently, petitioner has not demonstrated that respondents failed to comply with the court's remand instructions.
IV. CONCLUSION
Accordingly, it is hereby
ORDERED and ADJUDGED, that the petition is denied and the proceeding is dismissed.