Opinion
19426/04.
Decided October 12, 2004.
petitioner James Reddan seeks a judgment, pursuant to CPLR Article 78, annulling the decision of respondents Nicholas Scopetta and the Board of Trustees of the New York City Fire Department, Article 1-B Pension Fund (the Board of Trustees), which denied his application for accident disability retirement, and declaring such denial to be arbitrary, capricious and unlawful. Alternatively, petitioner seeks a judgment remanding the matter in order that a hearing may be held on the factual and/or medical issues raised by petitioner's application for disability retirement benefits and directing the Board of Trustees to allow petitioner and/or his representatives to present such testimony as is necessary at such hearing so as 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 respondents to provide: (1) all reports, recommendations, certificates and all other documents submitted by the Board of Trustees in connection with the retirement of petitioner; (2) copies of the minutes of each meeting of the Board of Trustees where the Board of Trustees considered, discussed or acted upon the retirement application of petitioner; and (3) 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 Nicholas 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.
On April 24, 1988, petitioner, a New York City firefighter, sustained lacerations to the backs of both of his hands when he was showered with broken glass while on duty at the scene of a fire. In regard to an injury sustained to his left hand during this incident, petitioner was examined by a number of doctors, as well as by the Full Medical Board of the FDNY (the FDNY Medical Board) from the time of said injury until February 2004, when the Board of Trustees denied his application for disability benefits.
On April 26, 1988, petitioner was examined by Dr. Steven Z. Glickel, a hand surgeon. Dr. Glickel's report, based upon his examination of petitioner, states, in relevant part:
[Petitioner], then suffered a laceration of the dorsal aspect of his left wrist which was causally related to an accident occurring on the job on April 24, 1988. Clinically, he has lacerated the extensor digiti quinti minimi and possible the extensor digitorum communis tendon of the left small finger. He has also lacerated the dorsal sensory branch of the ulnar nerve.
Dr. Glickel also noted that:
The wound is clean and has been sutured. The [petitioner] is able to extend all of his digits together, but has no independent active extension of the left small finger. He has active extension of the wrist. The [petitioner] is hypesthetic on the dorsal aspect of the small finger and the ulnar half of the ring finger. This area of hypesthesia extends proximally along the ulnar border of the hand to the wrist. He has full flexion of his digits. Sensation volarly is intact. Radiographs of the left wrist demonstrate no evidence of fracture or retained foreign body.
Petitioner underwent surgery which repaired the extensor digiti quinti and ulnar nerve of the left wrist.
On January 17, 1990, the FDNY Medical Board unanimously determined that petitioner was "unfit for fire duty status post tenorrhaphy of the left extensor digit quinti and neuroraphy of the dorsal cutaneous branch of the left ulnar nerve of the wrist [and] hypotrophy of the ulnar interossei muscles and asthenia of the left hand grip." It was recommended that petitioner be placed on light service. On May 4, 1990, the Fire Commissioner submitted a disability application on behalf of petitioner based upon the reasons articulated by the FDNY Medical Board.
Petitioner was initially examined by the 1-B Medical Board on July 18, 1990. The report, based upon that examination, stated, in relevant part, that:
The 1-B Medical Board examined [petitioner] . . . and healed scar was found on the dorsum of his left hand. On examination he was able to do full extension and flexion with good grip and the palma aspect has callosity. [Petitioner] is right handed. The area of hypothesia was at the dorsum of the medial side of the left hand which is not an important functional area.
As a result of its findings, "it was the unanimous opinion of the 1-B Medical Board that the Fire Commissioner's application for a medical disability retirement [for petitioner] be denied."
On November 9, 1995, petitioner underwent EMG testing. The EMG report stated that "[e]lectrodiagnostic findings are consistent with left distal ulnar neuropathy at or below the wrist." On April 20, 2000, petitioner underwent another EMG. The EMG report stated that the "[e]lectrodiagnostic findings are consistent with left ulnar neuropathy at or around the wrist. Compared to the [previous EMG] test performed on 11/9/95, no significant changes are noted."
Petitioner was examined by Dr. Stanley Soren in 1996. Dr. Soren's April 9, 1996 report states, in relevant part, that although "there [was] decreased sensation in the ulnar distribution of [petitioner's] left hand and the dorsum and the whole small finger and essentially on the whole ring finger as well," Dr. Soren also found that petitioner exhibited an "excellent range of motion of the fingers of the left hand with a good grip and a good pinch." Dr. Soren determined that petitioner could "continue on light duty [and] should be seen once more by the Full Board to determine his status." Dr. Soren noted, however, that "[t]here appears to be no real change or any significant change anyhow from the findings that were made at that time when he was found fit for light duty and limited service." The FDNY Medical Board shortly thereafter examined petitioner and found that "[t]here is excellent range of motion of the fingers of the left hand with a reasonably good grip and fairly good pinch with slight weakness in comparison with the . . . right side." The FDNY Medical Board also noted petitioner's decreased sensation in his small and ring fingers and recommended continued limited service.
On August 17, 2000 and January 29, 2001, Dr. William L. King, an orthopedic surgeon, examined petitioner. His office notes from August 17, 2000, state, in relevant part:
Petitioner complains of diminished feeling in the left hand over the ulnar aspect of the hand and also has decreased grasp and grip as well as pinch.
* * *
Physical examination reveals evidence of ulnar neuropathy of his left upper extremity with a positive Tinel sign at the wrist over the median nerve but diminished sensation in the ulna[r] sensory nerve distribution over the dorsal aspect of the hand. He also has intrinsic weakness with a positive Froment sign and abduction and adduction strength is diminished . . . as is his grip and pinch. He also has intrinsic atrophy of this left upper extremity.
* * *
I feel that this patient has obtained maximum improvement following his injuries. Certainly he is functional but I do not believe that he will ever be able to engage in full fire duty.
Office notes from January 29, 2001 indicate that Dr. King similarly found diminished sensation in the dorsal sensory nerve, positive Tinel and Froment signs, and some intrinsic atrophy of petitioner's upper left extremity.
On September 20, 2000, the FDNY Medical Board, citing to the August 17, 2000 examination of petitioner performed by Dr. King, determined that petitioner had a partial permanent disability and would remain on light duty. On October 25, 2000, the Fire Commissioner submitted another application for disability retirement on behalf of petitioner.
On December 20, 2000, the 1-B Medical Board again examined petitioner and reviewed petitioner's medical records in regard to his injury. In its report, the 1-B Medical Board stated, in relevant part, that:
The 1-B Medical Board examined the [petitioner] on this date and there appeared to be no gross atrophy of the left arm relative to the right. There was a healed scar over the negative tinel. There appeared to be decreased sensation over the ulnar, one and a half fingers. There appeared to be full extension of the small finger and full passive flexion.
Based on the above, it is the unanimous opinion of the 1-B Medical Board that the [petitioner] does have decreased sensation in the ulnar, one and a half fingers. It is also our opinion that this is not a significant disability to prevent the [petitioner] from performing full fire duty. Therefore, it is our unanimous recommendation that the . . . application for a disability retirement be denied.
On March 21, 2001, petitioner's case was remanded by the Board of Trustees to the 1-B Medical Board requesting that the 1-B Medical Board review the January 29, 2001 report of Dr. King. Upon its review of said report and its own notes concerning its December 20, 2000 examination of plaintiff, the 1-B Medical Board concluded that its previous determination that petitioner was not disabled from full service remained unchanged.
On April 16, 2001, petitioner was evaluated by Dr. Steven Berman. Dr. Berman found that petitioner had "weakness, decreased sensation and pain consistent with a nerve and tendon injury suffered on 4/2[4]/88." Dr Berman found, upon his examination of petitioner, that petitioner experienced weakness upon his extension of the 4th and 5th fingers of his left hand. Petitioner's hand grasp strength for his left hand was 45 pounds of force while his right hand grasp strength was 91 pounds. Petitioner complained of dull pain in his dorsal hand at the 4th and 5th fingers, occasional cramping in the same area, with severe pain occurring for thirty seconds. He also had decreased sensation of his dorsal hand at the 4th and 5th fingers. He complained that he could not lift anything heavy, could not hold tools in his left hand or use a hose, and that grasping was extremely difficult because he experienced spasms if he grasped anything for too long.
On July 29, 2002 and August 15, 2002, Dr. King again examined petitioner. During his July 29, 2002 examination, Dr. King noted that while petitioner allegedly sustained a trauma to his left hand at the World Trade Center site, where he was assisting on September 11, 2001, Dr. King did not find any appreciable differences from his prior examinations.
Dr. King determined, during petitioner's August 15, 2002 office visit, that "[petitioner] is not in severe enough straits to warrant any surgical exploration at this time. In the future if his symptoms increase, surgery can be considered. He will continue his limited duty status."
On August 2, 2002, petitioner underwent another EMG. The EMG report stated that petitioner had a "[b]orderline normal Left Ulnar nerve motor distal latency at the wrist level. There is mild denervation in the left FDI muscle." The report concluded that plaintiff had a "left ulnar nerve neuropathy at the wrist level."
In September, 2002, petitioner was evaluated by Dr. Martin A. Posner. Dr. Posner found complete mobility of the petitioner's left upper extremity except for mild loss of active flexion of the distal joint of the small finger. Although he found some clinical indications of compression of the ulnar nerve at the elbow, he noted that electrodiagnostic studies did not contain any evidence of same. He opined that "there has [not] apparently been any aggression of [petitioner's] problems since 1988."
In or about October 2002, petitioner submitted an application for accident disability retirement benefits. The application stated that petitioner could no longer perform his duties because of his "inability lifting grasping and using [left] hand due to lack of strength and feeling (spasms)."
Petitioner was again seen by the FDNY Medical Board on February 27, 2003. The FDNY Medical Board found that petitioner continued "to have decreased sensation in the hand" and recommended that petitioner be granted a "Partial Permanent" disability pension.
On January 14, 2004, the 1-B Medical Board again considered petitioner's case. The resulting report stated:
We reviewed the Fire Department Medical Board Committee report of 2/27/03, which found the member unfit for fire duty with a diagnosis of status post laceration of left hand with tendon and nerve injury, status post surgical repair of the extensor digiti quinti tendon and repair of the dorsal cutaneous branch of the ulnar nerve in the left upper extremity. We reviewed Dr. King's report, dated, 8/17/00, Dr. Soren's report, dated 4/9/96, Dr. Posner's report, dated 9/26/02, and electrodiagnostic exam reports dated 4/20/00 and 1/10/95. We reviewed the operative report, dated 4/27/88, Dr. Glickel's report, dated 4/26/88, radiology report of left wrist, dated 4/26/88, CD-72 report of 4/24/88, and the MD-9 record.
The [petitioner] was previously evaluated by the 1-B Medical Board on 12/20/00, and it was our unanimous recommendation at that time that the application be denied. It was noteworthy that we reviewed the evaluation by Dr. Posner of 9/26/02, in which he notes that there [was] no apparent progression of [petitioner's] problem since 1988.
Therefore, based upon the above, it is the unanimous opinion of the 1-B Medical Board that our previous recommendation remain unchanged.
On February 20, 2004, the Board of Trustees denied petitioner's application for accident disability retirement.
"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"]; accord 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 ; 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 Fund, 238 AD2d 596, 597, lv denied 91 NY2d 803). "Where . . . the [1-B Medical Board] determines that an applicant is not disabled form 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 of decreased sensation in his left hand and loss of grip strength. Moreover, the 1-B Medical Board's diagnosis of petitioner's condition does not demonstrably differ from that of the other physicians who examined petitioner and the FDNY Medical Board. The 1-B Medical Board, however, contrary to some of petitioner's evaluating physicians and the FDNY Medical Board, did not find that petitioner's hand condition rendered him disabled and prevented him from full duty as a firefighter. Such conflicting medical conclusions, however, are to be reconciled by the Medical Board and not by the court ( see Matter of Borenstein, 88 NY2d at 761 ["The (Medical) Board alone ha(s) the authority to resolve such conflicts (between medical evidence)"]; Matter of Ramsey v. City of New York, 8 AD3d 392 ["(A)lthough the medical conclusions of the petitioner's treating physicians differed from those of the Medical Board, the resolution of such conflicts is the sole province of the Medical Board"]; accord Matter of Ackalitis v. Murphy, 5 AD3d 381; Matter of Drew, 305 AD2d at 409). Although petitioner argues that the 1-B Medical Board's determination is arbitrary and capricious because it "failed to address the contradictory evidence submitted by petitioner," it is apparent from the 1-B Medical Board's reports that the 1-B Medical Board reviewed petitioner's medical history in regard to his alleged disability and chose to rely upon its own examinations of petitioner during which the Board found that: petitioner was right handed; that petitioner was able to do full extension and flexion with his left hand; that petitioner had a good grip with his left hand; and that "the area of [decreased sensation] of [petitioner's] left hand [was not located in] an important functional area." Moreover, the 1-B Medical Board relied upon Dr. Posner's assessment that petitioner's condition, which the 1-B Medical Board had determined upon its examinations of petitioner in 1990 and 2000 did not disable petitioner from full service, had remained unchanged since the time of his initial injury. Accordingly, there is credible evidence supporting the 1-B Medical Board's recommendation, including the 1-B Medical Board's own physical examinations of petitioner ( see Matter of Schwarzrock, 238 AD2d at 597; Matter of Santoro, 217 AD2d at 660-661). Moreover, to the extent the 1-B Medical Board's medical conclusions differed from that of other physicians, "we must defer to the expertise of the Medical Board in resolving such conflicts" (see Mulheren v. Board of Trustees of Police Pension Fund, 307 AD2d 129; accord Creegan v. Board of Trustees of New York City Police Pension Fund, 7 AD3d 335). 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.