Opinion
4613/16
06-01-2018
In the Matter of the Application of Solomon MCCANN, Petitioner, v. NEW YORK CITY EMPLOYEES RETIREMENT SYSTEM, Respondent.
McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP, Bay Shore, NY, Attorney for Petitioner Corporation Counsel for the City of New York, New York, NY, Attorney for Respondent
McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP, Bay Shore, NY, Attorney for Petitioner
Corporation Counsel for the City of New York, New York, NY, Attorney for Respondent
Paul Wooten, J.
The following papers were read on this motion by petitioner for an order and judgment pursuant to Article 78 of the Civil Practice Law and Rules
PAPERS/NUMBERED
Notice of Motion/ Order to Show Cause — Affidavits — Exhibits 1, 2
Answering Affidavits — Exhibits (Memo) 3, 4
Replying Affidavits (Reply Memo)
In this action commenced by CPLR article 78 proceeding, Solomon McCann (petitioner), a former New York City Transit Authority (NYCTA) bus operator, seeks an Order against New York City Employees Retirement System (NYCERS or respondent): (1) nullifying and vacating respondent's March 10, 2016 determination by its Board of Trustees denying petitioner's disability retirement benefits pursuant to section 605 of the New York State Retirement & Social Security Law (RSSL); (2) awarding petitioner disability retirement benefits as a matter of law; or (3) remanding this matter back to NYCERS for additional consideration in accordance with this Court's order.
Petitioner claims to be permanently disabled from performing all duties of a bus operator for NYCTA due to injuries to his neck, back, bilateral shoulders, posttraumatic stress disorder (PTSD) and depression, which he sustained as result of driving a NYCTA's bus over a pot hole on June 18, 2007 and a motor vehicle accident that occurred on April 16, 2011. Respondent is in opposition to the herein proceeding.
BACKGROUND
Petitioner became employed by NYCTA as a bus operator on April 7, 2003. On June 18, 2007, petitioner was operating a bus for NYCTA when he drove over a pot hole and suffered injuries to his neck and upper back. On April 26, 2011, petitioner suffered additional injuries to his neck, shoulders, back, buttocks, and left leg when the bus he was operating for NYCTA was struck by another vehicle. On or about November 21, 2012, petitioner filed an application for Tier 4 disability retirement benefits pursuant to RSSL § 605 for injuries to his neck, bilateral shoulders, back, buttocks, and left leg. On April 19, 2013, the Medical Board of NYCERS (the Medical Board) determined that the July 18, 2007 incident was not an accident for purposes of RSSL § 605. On March 12, 2014, the Medical Board examined petitioner and found that petitioner was not disabled from performing duties of a bus operator for NYCTA. Subsequently, the Board of Trustees of NYCERS (the Board of Trustees) adopted the Medical Board's recommendation and denied petitioner's application for disability retirement benefits on July 11, 2014.
On July 29, 2014, petitioner filed a renewed application for Tier 4 disability retirement benefits pursuant to RSSL § 605 for injuries to his neck, bilateral shoulders, lower back, buttocks, and left leg as a result of the accident on April 26, 2011 (the 2014 application). On November 5, 2014, the Medical Board examined petitioner and found again that petitioner was not disabled from performing duties of a bus operator for NYCTA. The Board of Trustees adopted the Medical Board's recommendation and denied petitioner's application on February 19, 2015 (the 2015 denial). On subsequent review of the 2014 application in the CPLR article 78 proceeding commenced by petitioner, the Supreme Court in Kings County found that the 2015 denial arbitrary and capricious and Court annulled it by a Decision and Order, dated February 23, 2016. Justice Rothenberg also remitted the matter to the Medical Board for further consideration and a new determination. At the time of commencement of the within CPLR article 78 proceeding, the 2014 application was still under review by NYCERS.
On March 23, 2015, petitioner filed a second renewed application for Tier 4 disability retirement benefits pursuant to RSSL § 605 for injuries to his back, neck, bilateral shoulders, PTSD, and depression as a result of the accident on April 26, 2011 (the 2015 application). On October 27, 2015 petitioner appeared for an examination before the Medical Board and the Board once again found that petitioner was not disabled from performing all duties of a bus operator for NYCTA. Subsequently, the Board of Trustees adopted the Medical Board's recommendation and denied petitioner's 2015 application on March 10, 2016 (the 2016 denial). Thereafter, petitioner commenced the within CPLR article 78 proceeding to challenge the 2016 denial on the grounds that the determination of the Board of Trustees to deny petitioner's disability retirement benefits was arbitrary and capricious.
STANDARD
It is the province of the Medical Board of NYCERS to determine whether a member of NYCERS applying for disability retirement benefits is disabled (see Administrative Code of City of NY §§ 13–167, 13-168; see also Matter of Borenstein v. New York City Employees' Retirement Sys. , 88 NY2d 756, 760 [1996] ; Matter of Vargas v. New York City Employees' Retirement Sys. , 95 AD3d 1345 [2d Dept 2012] ). Thus, "[i]f the Medical Board certifies that the applicant is not medically disabled for duty, the Board of Trustees must accept that determination and deny applicant's claim" ( Matter of Borenstein , 88 NY2d at 760 ; see also Matter of Russell v. New York City Employees' Retirement Sys., 155 AD3d 1046 [2d Dept 2017] ; Matter of Drummond v. New York City Employees' Retirement Sys. , 98 AD3d 1116, 1117 [2d Dept 2012] ; Matter of Zamelsky v. New York City Employees' Retirement Sys. , 55 AD3d 844, 845 [2d Dept 2008] ). Additionally, "whether an applicant is disabled is a scientific question which must be determined by the experts who examine the applicant" ( Spiro v. Ward , 159 AD2d 225, 226 [1st Dept 1990] ).
"Although the Board of Trustees is entitled to rely on the report and recommendation of the Medical Board, the proceedings should disclose the reason for any denial, and the determination must be set forth in such manner as to permit adequate judicial review" ( Matter of Fernandez v. Board of Trustees of New York Fire Dept Pension Fund , 81 AD3d 950, 952 [2d Dept 2011], citing Matter of Perrotta v. Board of Trustees of NY Fire Dept, Art 1—B Pension Fund , 232 AD2d 493 [2d Dept 1996] ; Matter of Curran v. McGuire , 87 AD2d 223, 226 [1st Dept 1982] ; Matter of Costello v. Board of Trustees of Police Pension Fund, Art II , 63 AD2d 894 [1st Dept 1978] ; Matter of Perkins v. Board of Trustees of NY Fire Dept. Art 1-B Pension Fund , 59 AD2d 696, 697 [1st Dept 1977] ). However, "[i]t is well settled that the courts cannot weigh the medical evidence or substitute their own judgment for that of the Medical Board;" rather, they "must decide if the agency's decision has a reasonable basis in the record" ( Matter of Borenstein , 88 NY2d at 761, citing Vastola v. Board of Trustees of NY City Fire Dept., Art 1—B Pension Fund , 37 AD3d 478, 478 [2d Dept 1995] ; Clancy—Cullen Storage Co. v. Board of Elections of the City of New York , 98 AD2d 635, 636 [1st Dept 1983] ).
In a CPLR article 78 proceeding, the Medical Board's determination of lack of disability "will be sustained unless it lacks a rational basis, or is arbitrary or capricious" ( Matter of Borenstein , 88 NY2d at 760, citing Matter of Canfora v. Board of Trustees , 60 NY2d 347, 351 [1983] ; Matter of Pell v. Board of Educ. , 34 NY2d 222, 230-231 [1974] ; Matter of Russell , 155 AD3d at 1046 ). Moreover, the Medical Board's disability determination must be supported by "some credible evidence" (see Matter of Borenstein , 88 NY2d at 760-61 ; see also Matter of Drew , 305 AD2d at 409 ). "Credible evidence" means "evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered and ... must be evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion" ( Matter of Meyer , 90 NY2d at 147 ). Additionally, "if the evidence reviewed by the Medical Board is subject to conflicting interpretations, the Medical Board alone has the authority to resolve the conflict" ( Matter of Borenstein , 88 NY2d at 761 ).
Courts may annul determinations of the Medical Board and the Board of Trustees and remand the matter to the Medical Board for new review when the medical findings do not sustain the Medical Board's disability determination or when the record did not reveal a rational evaluation of the medical evidence (see e.g. Matter of Stack v. Board of Trustees of New York City Fire Dept, Art 1—B Pension Fund , 38 AD3d 562 [2d Dept 2007] ; Matter of Rodriguez v. Board of Trustees of New York City Fire Dept, Art 1—B Pension Fund , 3 AD3d 501 [2d Dept 2004] ).
DISCUSSION
Upon review of the record, the Court finds that NYCERS' denial of petitioner's 2015 application for disability retirement benefits pursuant to RSSL § 650 was arbitrary and capricious in several respects. First, the Court finds that the Medical Board did not base its disability determination on credible evidence. Second, the Medical Board's report mainly consists of summaries and conclusions but the report is devoid of a discussion and sufficient rational analysis of the medical and evidentiary findings, which precludes adequate judicial review of the Board's disability determination (see Matter of Borenstein , 88 NY2d at 760 ; Matter of Stack , 38 AD3d at 562 ).
Specifically, the Medical Board failed to adequately detail all documentary and clinical evidence it considered in order to determine that petitioner does not have an orthopedic disability. In that respect, the Board seemed to rely largely upon its past medical reports without conducting adequate new review of all medical evidence submitted in support of petitioner's 2015 application, which was a new application. Importantly, among the Board's prior medical reports was the 2015 denial that Justice Rothenberg found arbitrary and capricious on the ground that the Board failed to include any testing of petitioner's cervical spine and failed to set forth factual reasons for its other medical findings (see id. , exhibit Q).
Furthermore, although the Medical Board made negative findings with regard to petitioner's physical health condition, the Board failed to address whether these findings have impact on petitioner's ability to drive a bus and perform other duties of a bus operator for NYCTA, which is part of a large public transportation system. For instance, the Medical Board's examination of petitioner on October 27, 2015 revealed deficiencies of range of motion in his spine and shoulders (see id. , exhibit U). Additionally, petitioner underwent failed surgeries of right shoulder and cervical spine (see id. , exhibit T, Reich's Report, at 2). Yet, the Medical Board did not explain how he is able to perform all duties of a bus operator, despite the failed surgeries and range of motion deficiencies in his various body regions. Similarly, while the Medical Board considered petitioner's subjective complains, the Board vaguely concluded that they are suggestive of symptom magnification and out of proportion to petitioner's "imagining studies," without indicating to what the symptoms related, which studies the Board relied on and what they show, and how and with what findings petitioner's complains are "somewhat inconsistent" (see id. , exhibit U).
Moreover, although the Board found that petitioner is not disabled "due to his psychiatric condition alone," despite having a "major depression," it failed to sufficiently address the question whether petitioner has a psychological disability (see id. ). In particular, the Medical Board ruled out psychological disability on the ground that it merely did not have "adequate information as to the extent of [petitioner's] psychological disability;" however, the Board did not inquire further (see id. ). The Medical Board also discounted the diagnosis of PTSD by petitioner's treating psychologist based on the psychiatric opinion of Dr. Reich who only reported that "PTSD is hard to make without any clear index of incident," even though Dr. Reich did not state that petitioner does not have PTSD (see id. ). Importantly, while relying on Dr. Reich's opinion, the Medical Board failed to address Dr. Reich's determination that petitioner "could not likely drive a bus at this time" because he was required to take "substantial doses of Percocet," among other medications (see id. , exhibit T, Reich's Report, at 4, and exhibit U). Nevertheless, the Board concluded that petitioner is not disabled and thus he can operate a bus, without explaining how petitioner can do so when he is required to take a narcotic-based medicine. Lastly, the Board failed to discuss how petitioner is still not disabled from performing all duties of a bus operator for NYCTA considering petitioner's medical and mental condition together and in toto.
For example, the Court notes that section 509-k of the New York Vehicle Traffic Laws prohibits drivers from operating a bus while the driver's ability or alertness is impaired because it is unsafe to operate a bus in such condition (Vehicle and Traffic Law § 509-k ; see also Guillo v. New York City Employee's Retirement Sys. , 39 Misc 3d 1208(A), 3 [Sup Ct, Kings County 2013] ).
Therefore, the Court finds that the instant petition must be granted to the extent of annulling the decision of the Board of Trustee's denying petitioner's 2015 application for disability retirement benefits. Furthermore, the Court remits the matter to the Medical Board for new medical findings and a new determination by the Board of Trustees with regard to petitioner's 2015 application.
CONCLUSION
For these reasons and upon the foregoing papers, it is,
ORDERED that the CPLR article 78 petition of petitioner Solomon McCann is granted to the extent that the decision of Board of Trustees of NYCERS is annulled and this matter is remitted to NYCERS for a new determination consistent with this Order; and, it is further,
ORDERED that petitioner shall serve a copy of this Order, with Notice of Entry, upon respondent and upon the Clerk of the Court, who is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.