Opinion
116211/2010.
Decided May 19, 2011.
Chet Lukaszewski, Esq., Chet Lukaszewski, PC, Lake Success, NY, for Petitioner.
Michael A. Cardozo, Corporation Counsel of the City of New York, By: Katrina E. McCann, Esq., Special Assistant Corporation Counsel, New York, NY, for Respondents.
In this Article 78 proceeding, petitioner seeks to annul the determination of the Board of Trustees of the Police Pension Fund, Article II, to retire petitioner on ordinary disability retirement (ODR) instead of accidental disability retirement (ADR), following a tie vote on petitioner's application for accidental disability retirement. Respondents oppose the petition.
BACKGROUND
From August 1993, petitioner served as a police officer, rising to the rank of Lieutenant, until September 2010, when he retired on ordinary disability retirement, at the age of 41. It is undisputed that, during his years on the police force, petitioner reported three line of duty incidents, two of which are relevant to this petition. Verified Answer ¶ 7. On March 8, 1995, petitioner reportedly injured his right shoulder while assisting a fellow officer in subduing a violent, emotionally disturbed person. Verified Petition ¶ 5; Verified Answer ¶ 7. On December 3, 2000, petitioner reportedly injured his right shoulder while attempting to maintain control of an intoxicated prisoner. Verified Petition ¶ 6; Verified Answer ¶ 5.
Petitioner claims that he immediately saw an orthopedist for his shoulder injury on December 3, 2000, and that he received a cortisone injection to his right shoulder. Verified Petition ¶ 7.
According to a report dated December 18, 2000, Dr. Anthony Cappellino's impression was "right shoulder anterior laxity with underlying internal impinement [ sic]." Verified Answer, Ex 7. Respondents assert that a MRI was performed on petitioner's right shoulder on December 26, 2000. The MRI report of Dr. Seth Steinman states that "the glenoid labrum and capsular mechanism are within normal limits." Verified Answer, Ex 9. Dr. Steinman's impression was "Small amount of fluid in the subacromial-subdeltoid bursa consistent with bursitis. Hypertrophic acromioclavicular joint with evidence of bony impingement. Minimal joint effusion. No evidence of rotator cuff tear is seen." Id. Petitioner claims that he did home physical therapy exercises prescribed by his doctor for a year. Verified Petition ¶ 7.
Thereafter, petitioner was promoted to the rank of Lieutenant, and assigned to the Criminal Justice Bureau. Id. ¶ 8. In 2005, petitioner was assigned to the Internal Affairs Bureau (IAB). Id. While at IAB, petitioner allegedly began to experience numbness and increasing pain and burning in his right arm. Id. ¶ 9. Petitioner claims that, during this time, he was incorrectly diagnosed as having carpal tunnel syndrome.
Petitioner claims that, on October 18, 2008, he felt a pulling sensation in his arm, which allegedly resulted in numbness in his hand, while he was carrying NYPD case files. Id. ¶ 10. It is undisputed that petitioner did not file a line of duty injury report at the time, but instead took sick leave. Id.; Verified Answer ¶¶ 7-8. According to respondents, he was placed on restricted duty after petitioner returned to work. Verified Answer ¶ 8.
On October 23, 2009, petitioner filed an application for accidental disability retirement (ADR) due to his right shoulder injury. Verified Answer, Ex 4. Petitioner claims that, through extensive testing and examinations by specialists, he discovered that he did not have carpal tunnel syndrome, but rather that his right arm and hand issues were related to a right shoulder condition that had deteriorated. Petitioner contends that this right shoulder condition resulted from his line of duty injury on December 3, 2000.
Respondents claim that the Police Commissioner also submitted an application for ordinary disability retirement (ODR) on petitioner's behalf, but they were unable to locate the Ordinary Disability Examination Order in their records. Verified Answer at 4 n 3.
On December 18, 2009, the Police Pension Fund Medical Board reviewed petitioner's previous work-related injuries and medical records submitted in support of petitioner's application for ADR, and examined petitioner. Verified Petition, Ex H; Verified Answer, Ex 6. The Medical Board's minutes noted that petitioner underwent surgery on March 9, 2009, performed by Dr. Cappellino. "The preoperative diagnosis was right shoulder superior labrum anterior and posterior lesion tear and anterior labral tear. The postoperative diagnosis was healed anterior labral tear and extensive Type II superior labrum anterior and posterior lesion testing." Id. The Medical Board found,
"In summary, the lieutenant sustained injury to his right shoulder in December 2000 but functioned well for many years. The picture is somewhat complicated by the development of bilateral carpal tunnel syndrome and neck pain. The deterioration of the shoulder symptoms resulted in recent surgery, but this did not help him.
At this time, the Medical Board finds mild residual symptoms in the right arm, but these are not sufficient to preclude the lieutenant from performing the full duties of a New York City Police Officer. In light of this, the Article II Medical Board recommends disapproval of the lieutenant's own application for [ADR] and disapproval of the Police Commissioner's application for [ODR]."
Id. On May 12, 2010, the Board of Trustees remanded petitioner's application to the Medical Board because of new evidence. Verified Answer, Ex 20.
On June 4, 2010, the Medical Board reviewed petitioner's application for the second time and examined petitioner. The minutes of the Medical Board state, in pertinent part:
"In summary, the lieutenant continues to have symptoms in the right shoulder that have not improved with extensive physical therapy. His current medical documentation indicates continued pain, restricted mobility and decreased strength. Today's physical examination indeed demonstrates significant atrophy and decreased range of motion.
Therefore, it is of the opinion of the Article II Medical Board that there are significant objective findings precluding the lieutenant from performing the full duties of a New York City Police Officer. In light of this, the Article II Medical Board rescinds its previous decision and recommends approval of the lieutenant's own application for [ADR] and disapproval of the Police Commissioner's application for [ODR]. The final diagnosis is Residuals Post SLAP Tear Right Shoulder. The competent causal factor is the line of duty injury of December 3, 2000."
Verified Petition, Ex P; Verified Answer, Ex 21.
On July 14, 2010, the Board of Trustees considered petitioner's application, which was tabled to a later date for further information about what happened to petitioner on October 18, 2008. Verified Answer, Ex 26. On August 11, 2010, the Board of Trustees again considered petitioner's application, but tabled the discussion again. The record states, in pertinent part:
Ms. DeBellis: In this case last month we questioned the aggravating incident of October 18, 2008, which the lieutenant's doctor referenced in his report because there was no line-of-duty report on file for that event.
* * *
Since there is no evidence, contemporaneous or otherwise, that the October 2008 incident was a line-of-duty event, much less an accident, we are left to conclude that the lieutenant's shoulder injury here has been aggravated by a non-line-of-duty event and subsequently rendered him disabled.
Therefore, we cannot approve this case.
Lieutenant Sullivan: As you know this is a Chet Lukaszewski case. He submitted his opinion.
Along with his opinion, he also submitted results of an electromyelogram that was done in March of 2010, because at the time of this further aggravating incident on October 18, 2008, when LIEUTENANT BAUDILLE lifted these case files . . . one of his doctors that he was seeking care from misdiagnosed his condition as carpal tunnel syndrome.
* * *
It's an aggravating condition of 2008 which LIEUTENANT BAUDILLE didn't originally attribute to that line-of-duty injury [of December 3, 2000], but since the Medical Board has the results of the electromyelogram that he doesn't suffer from carpal tunnel syndrome, this was a further aggravation of that shoulder injury, which continues to deteriorate.
This appears to be a classic Tobin v. Steisel case in that any aggravation from a previous line-of-duty injury causing him to be disabled. . .
Ms. DeBellis: Well, Tobin v. Steisel stands for the proposition that an underlying condition agg[ravated] by an accident is an accident.
Carrying case files, if that's even what happened, is an exertional injury, not considered an accident. It doesn't fit Tobin v Steisel. If he had an incident that was not an accident or not a line-of-duty event, and that's what [aggravated] his condition, it doesn't qualify as an accident under the law.
Lieutenant Sullivan: The original line-of-duty injury was an accident. It's been determined to be an accident.
This is just aggravation. I guess it's an interpretation of Tobin v. Steisel.
Ms. DeBellis: He was not disabled prior to that event of October `08. That's why his doctor says that that event subsequently aggravated his injury was October 18, `08.
Previous to that, he wasn't disabled.
LIEUTENANT SULLIVAN: Previous to that he went through extensive physical therapy for years and he was on pain medication. He was suffering long time symptoms for the shoulder injury. The tear in the shoulder didn't go away.
Following `08, his symptoms got worse and it required surgery and the surgery still didn't improve the shoulder injury.
Ms. DeBellis: We are not finding causation here. So the Medical Board has determined him disabled. We are not questioning that, but we don't find causation.
LIEUTENANT SULLIVAN: So I request a table."
Verified Petition, Ex S; Verified Answer, Ex 27.
On September 8, 2010, the Board of Trustees considered petitioner's application for a final time, and voted 6-6 on petitioner's application. Verified Petition, Ex U; Verified Answer, Ex 28. Thus, petitioner's application for ADR was denied as a result of a tie vote. See Matter of City of New York v Schoeck, 294 NY 559 (1945).
Petitioner brought this Article 78 proceeding challenging the determination.
DISCUSSION
Under Administrative Code of the City of New York § 13-252, an applicant is entitled to accident disability benefits "if medical examination reveals that incapacitation was suffered 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.'" Matter of Starnella v Bratton, 92 NY2d 836, 838 (1998).
The determination as to whether a retiring or retired police officer is entitled to ADR involves a two-step process. First, the Medical Board must determine whether or not the applicant is in fact physically or mentally incapacitated for the performance of City service. The Medical Board's determination on these issues is binding on the Board of Trustees. Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756,760-61; Matter of Canfora v Board of Trustees of the Police Pension Fund of Police Dept. of the City of NY, Art. II, 60 NY2d 347, 351 (1983). If the Medical Board finds that the applicant is disabled, it must then make a recommendation to the Board of Trustees as to whether the disabling condition was the natural and proximate result of an accidental injury. See Matter of Borenstein, 88 NY2d at 760. The second step involves the Board of Trustees. "[T]he Board of Trustees, while bound by the Medical Board's determination of disability, is entitled to make its own determination regarding causation." Matter of Calzerano v Board of Trustees of NY City Police Pension Fund Art. II, 245 AD2d 84, 84 (1st Dept 1997). In the exercise of sound discretion, the Board of Trustees may accept the Medical Board's opinion regarding causation or reject it and make a contrary finding. Matter of Russo v Board of Trustees of NY City Fire Dept., Art.1-B Pension Fund, 143 AD2d 674, 676 (2d Dept 1988).
A petitioner seeking ADR benefits has the burden of establishing both that he or she is disabled and that the disability was the result of an accidental injury received in City service. See e.g., Matter of Danyi v Board of Trustees of New York City Employees' Retirement Sys., 176 AD2d 451 (1st Dept 1991). Case law defines "accident" as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact." See Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of NY, Art. II, 57 NY2d 1010, 1012 (1982). A service-related injury is the natural and proximate cause of the pension member's disability if the injury directly caused the disability. In addition, "[a]n accident which produces injury by precipitating the development of a latent condition or by aggravating a preexisting condition is a cause of that injury." Matter of Tobin v Steisel, 64 NY2d 254, 257 (1985).
Here, it is undisputed that the injury that petitioner suffered on December 3, 2000 was a line-of-duty injury. The parties do not dispute that the events which caused the injury constituted an accident. Although the record contains a medical history that petitioner "sustained a work-related injury in 2000 and subsequently aggravated the shoulder injury on October 18, 2008" ( see Verified Answer, Exs 10 23), petitioner does not argue that incident on October 18, 2008 was an "accident" that aggravated a preexisting condition that ultimately resulted in petitioner's disability. Thus, the issue presented is whether petitioner's disability was a natural and proximate cause of his line-of-duty injury on December 3, 2000.
"A reviewing court may not set aside a denial of ADR due to a tie vote on the issue of whether the petitioner's disability is causally related to the service-related injuries unless 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. [A]s long as there was any credible evidence of lack of causation before the Board of Trustees, its determination must stand."
Matter of Santangelo v Kelly , 81 AD3d 439 , 439-440 (1st Dept 2011) (internal quotation marks and citations omitted). "Credible evidence has been defined as evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered' and is evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion.'" Matter of Cusick v Kerik, 305 AD2d 247, 248 (1st Dept 2003) (citation omitted).
"[A]lthough factors such as the pension fund member's failure to return to full duty following a service-related injury and the absence of a prior medical history of the disabling condition may be relevant to the issue of causation, the case law demonstrates that none of these factors is dispositive and a denial of accidental disability benefits may be upheld despite their existence."
Matter of Meyer v Board of Trustees of the NY City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 146 (1997).
Here, some credible evidence of lack of causation was before the Board of Trustees. The Medical Board's finding of disability, which is binding upon the Board of Trustees, was that the petitioner suffered from "Residuals Post SLAP [superior labrum anterior and posterior] Tear Right Shoulder." As respondents indicate, a MRI was performed on petitioner's right shoulder on December 26, 2000, and the MRI report of Dr. Seth Steinman states that "the glenoid labrum and capsular mechanism are within normal limits." This MRI report constitutes some credible evidence that supports respondents' determination that the line-of-duty injury to petitioner's shoulder on December 3, 2000 did not result in a tear of petitioner's right shoulder. Respondents further indicate that Dr. Cappellino performed an O'Brien test on petitioner on December 18, 2000, which was negative. Verified Answer, Ex 7. Respondents also point out, without dispute, that petitioner returned to full duty on December 23, 2000, and that he remained on full duty nearly continuously until October 2008. Verified Answer, Ex 34.
According to the respondents, the O'Brien test determines the existence of a superior glenoid labrum lesion, also called a SLAP tear or SLAP lesion, citing a textbook on orthopedics found on the Internet, http://www.wheelessonline.com/ortho/shoulder_physical_exam.
Respondents have not submitted the affirmation or affidavit of a medical expert explaining the O'Brien test, or the medical significance of a negative result. The unauthenticated Internet textbook, which is hearsay, may not be offered for the truth of its contents. Winant v Carras, 208 AD2d 618, 619 (2d Dept 1994) (The Physician's Desk Reference was offered into evidence for the truth of its contents and therefore the proffered evidence constituted inadmissible hearsay). Neither is the O'Brien test the type of commonly understood medical procedure about which this Court could take judicial notice.
As respondents indicate, petitioner had no documented treatment or complaints regarding his right shoulder from March 5, 2001 to October 18, 2008. The record does not contain any medical evidence to support a theory that the injuries that petitioner incurred on December 3, 2000 would have resulted in deterioration or degeneration of his shoulder to the point of disability. The record indicates that petitioner sought treatment for carpal tunnel syndrome, a condition which petitioner argues was ruled out by the results of an electromyelogram. Assuming, for the sake of argument, that the complaints that petitioner attributed to carpal tunnel syndrome were attributable to a condition of petitioner's right shoulder, petitioner did not meet his burden of establishing, as a matter of law, that the condition of petitioner's right shoulder was the natural and proximate result of the line-of-duty injury on December 3, 2000. At most, the medical evidence presented would have permitted more than one inference to be drawn as to the cause of the petitioner's disabling condition, which is not sufficient to overturn the Board's determination to award ODR. Mattter of Wesarg v Board of Trustees of NY City Fire Dept, Art. 1-B Pension Fund, 246 AD2d 601, 602 (2d Dept 1998).
The facts of this case are similar to Matter of Baart v McGuire ( 93 AD2d 791 [1st Dept 1983]). There, a police officer challenged the Board of Trustees's decision to retire him on ODR, because the police officer's application for ADR was not approved by a majority of the Board of Trustees. The police officer alleged that running up and down a soccer field pursuant to his assignment to the Police Athletic League and youth programs was the proximate cause of chondromolacia of his right knee, the injury for which he claimed ADR. Although the lower court annulled the Board of Trustees's decision and remanded the matter to the Board of Trustees for reconsideration, the Appellate Division reversed and reinstated the determination of the Board of Trustees. The Appellate Division reasoned,
"Although petitioner does claim that a line-of-duty accident to his knee, suffered nine years previously, is the true source of his disability, with the soccer field running only an aggravation of that original injury, petitioner never lost a day's work as a result of the old injury and was in no way able to show to the board's satisfaction that the two injuries were at all related."
Matter of Baart, 93 AD2d at 792. Like the police officer in Matter of Baart, petitioner herein argued before the Board of Trustees that the incident on October 18, 2008 only aggravated a prior injury that he suffered on December 3, 2000, an injury which occurred nine years before petitioner applied for ADR. Unlike the police officer in Matter of Baart, petitioner did not return to duty immediately after the line-of-duty injury, but instead returned to work 20 days later. However, "[t]he minimal amount of time petitioner was absent from duty following these injuries, as well as the substantial lapse of time between the injuries and the onset of the ultimate disability, constitute substantial evidence of a lack of causal connection." Matter of Duggan v Ward, 160 AD2d 532, 533 (1st Dept 1990).
The Court does not find persuasive petitioner's argument that Matter of Duggan is inapposite, because, in Matter of Duggan, it was the Medical Board, not the Board of Trustees, that found no causal connection. In Matter of Calzerano ( 245 AD2d 84, supra), the Board of Trustees rejected the Medical Board's determination regarding causation. Citing Matter of Duggan with approval, the Appellate Division ruled, "The evidence of lack of medical treatment, immediate return to full duty, and the substantial lapse of time between the injuries and the onset of the ultimate disability constitute substantial evidence of lack of causal connection." Id. at 451; see also Matter of Doyle v Kelly , 8 AD3d 125 (1st Dept 2004)("Some credible evidence of lack of causation . . . are the conservative treatment that petitioner received after the earlier accident and his return to full duty for some 14 years").
The unreported cases that petitioner cite, where the determination of the Board of Trustees was vacated and the matter remanded for further proceedings, are inapposite. Many of those unreported cases dealt with applications under Administrative Code § 13-252.1 (the World Trade Center presumption law), or General Municipal Law § 207-k (the Heart Bill), both of which create presumptions. Other unreported cases involved very different disabling conditions, except for Matter of Mitchell v Kelly (Sup Ct, NY County, Oct. 13, 2006, Kornreich, J., index No. 100298/2006). See Petitioner's Mem., Ex C.
In Matter of Mitchell, a police officer was kicked in the shoulder while trying to restraining an emotionally disturbed 14 year old. The Medical Board found the police officer disabled due to "Right Shoulder Derangement with Residuals, Post Arthroscopic Surgery X 2." However, the Medical Board did not recommend ADR. The Medical Board determined that the injury was more likely due to the officer's pre-existing condition of the right shoulder from weightlifting activities than the line of duty incident. The Board of Trustees approved the Medical Board's determination.
Justice Kornreich annulled the determination of the Board of Trustees and remanded the matter to the Board of Trustees, reasoning that the Medical Board's "ultimate suppositions amount only to mere conjecture or unsupported suspicion." Id. at 5. Matter of Mitchell is distinguishable because, unlike this case, it did not involve a tie vote of the Board of Trustees. In addition, in the instant case, some credible evidence of lack of causation was before the Board of Trustees.
Given all of the above, the Court need not address respondents' alternative argument that credible evidence suggests that a non-accidental injury, i.e., carrying files on October 18, 2008, caused petitioner's disabling condition. It is not incumbent on the Board of Trustees to provide an alternate explanation for causation. Matter of Mackey v Ward, 166 AD2d 379, 380 (1st Dept 1990).
CONCLUSION
Accordingly, it is hereby
ADJUDGED that the petition is denied and the proceeding is dismissed.