Opinion
503132/2017
03-18-2019
In the Matter of the Application of Igor KOGAN, Petitioner, For a Judgment Under Article 78 of the Civil Practice Law and Rules v. NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM and the City of New York, Respondents.
Attorney for Petitioner Berman, Schulman & Levine 4607 Fort Hamilton Parkway Brooklyn, NY 11219 Attn: Aron F. Rattner, Esq. Attorneys for Respondent Zachary W. Carter Corporation Counsel of the City of New York 100 Church Street, Room 5-166 New York, NY 10007
Attorney for Petitioner
Berman, Schulman & Levine
4607 Fort Hamilton Parkway
Brooklyn, NY 11219
Attn: Aron F. Rattner, Esq.
Attorneys for Respondent
Zachary W. Carter
Corporation Counsel of the City of New York
100 Church Street, Room 5-166
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:
Papers/Numbered
Order to Show Cause with Accompanying Petition, Affidavits and Exhibits 1
Respondent's Verified Answer to Petition with Accompanying Affidavits and Exhibits 2
Memorandum of Law in Support of Respondent's Verified Answer 3
Petitioner Igor Kogan ("petitioner" or "Kogan"), a former bus operator for the New York City Transit Authority ("Transit"), applied for disability retirement benefits ("disability benefits") under Retirement and Social Security Law ("RSSL") § 605, based on the fact that he suffered from anxiety, depression, lack of attention, and forgetfulness. Petitioner stopped working on November 21, 2013. He seeks to annul the decision of the Trustees of the New York City Employees' Retirement System ("NYCERS"), which adopted the recommendation of the Medical Board of NYCERS ("Medical Board") to deny his application for disability benefits.
Dr. Solomon Miskin, NYCERS' consulting psychiatrist, examined petitioner and reviewed his medical records from the NY Presbyterian Medical Center Psychiatric Emergency Department. Dr. Miskin stated that petitioner had a history of traumatic brain injury and post traumatic stress disorder, and diagnosed him with panic disorder and major depressive disorder. Dr. Miskin found that Kogan had no suicidal or homicidal ideation or intent, or current psychotic symptoms. He also reported that petitioner saw a psychiatrist every four to six weeks, was treated with a multitude of medicines, including Cymbalta (an anti-depressant), Lexapro (an anti-anxiety and anti-depressant) and Seroquel (an anti-psychotic), and had made progress with his outpatient psychiatric care. Dr. Miskin found that there was a reasonable expectation for recovery and that petitioner be reevaluated a year later.
The Medical Board found that the documentary and clinical evidence failed to substantiate that petitioner was disabled from performing his duties as a bus operator for Transit, and noted that not all treatment options had been exhausted and that there were additional pharmacologic options for petitioner. Petitioner submitted a letter from Dr. Mikhail Pilman, with a diagnosis of "major depressive disorder," "anxiety disorder," and "R/O bipolar disorder." Dr. Pilman prescribed Abilify (an anti-psychotic), Gabapentin (an anti-convulsant) and Lunesta (sleep medicine).
It is up to the Medical Board to determine whether a member applying for disability benefits is in fact disabled, and the Board of Trustees is bound by the Medical Board's finding. Mtr. of Borenstein v. NYCERS , 88 NY2d 756, 760 (1996) ; Vargas v. NYCERS , 95 AD3d 1345 (2d Dept. 2012). However, the Medical Board's determination is only binding upon the Board of Trustees if is supported by some credible evidence and is not arbitrary or capricious. Mtr. of Russell v. NYCERS , 155 AD3d 1046, 1046 (2d Dept. 2017) ; Mtr. of Zamelsky v. NYCERS , 55 AD3d 844, 845 (2d Dept. 2008). All relevant medical evidence which is available must be considered. Mtr. of Kiess v. Kelly , 75 AD3d 416, 417 (1st Dept. 2010). Where the medical findings do not support the Medical Board's determination, or the petitioner's medical issues were not adequately addressed by the Medical Board, such determination is deemed irrational. Mtr. of Stack v. Board of Trustees of the NY City Fire Dept. , Art. I-B Pension Fund, 38 AD3d 562, 563 (2d Dept. 2007) ; Mtr. of Doorley v. Kelly , 2010 NY Slip Op 30606(U), 2010 NY Misc. LEXIS 2671, *9 (Sup. Ct. NY Co. 2010).
This Court finds that the Medical Board has failed to adequately address petitioner's medical issues. The Medical Board's determination that petitioner is currently able to perform his work duties is seemingly at odds with its postulation that there was a reasonable expectation for recovery and that petitioner will improve with future treatment. Since the Medical Board's opinion is based in part upon the possibility of petitioner's improvement with new medication, rather than his current state, it is speculative and irrational. Indeed, whether or not an applicant is disabled must be determined at the time of his or her examination by the Medical Board, and such determination may not be based on what might happen in the future. Mtr. of Maldari v. DiNapoli , 160 AD3d 1323, 1324 (3d Dept. 2018) ; Greenway v. New York State & Local Employees' Retirement Sys. , 274 AD2d 662, 663 (3d Dept. 2000). Furthermore, the fact that the Medical Board recommended further pharmacologic treatment raises the issue that such treatment may interfere with petitioner's ability to safely operate a bus.
Accordingly, the decision of the Trustees denying petitioner's application for disability benefits is annulled, and this matter is remanded to the Medical Board for a new medical report explaining why petitioner is not currently disabled from performing his duties as a bus operator, and to elucidate the pharmacologic options for petitioner and how they would impact petitioner's ability to drive safely in the future. This constitutes the Decision and Order of the Court.