Opinion
101380/14
05-26-2016
In the Matter of the Application ofJacqueline Ploss, as widow and beneficiary of BRIAN PLOSS, deceased, Petitioner, v. William J. Bratton, as THE POLICE COMMISSIONER OF THE CITY OF NEW YORK, and as CHAIRMAN OF THE BOARD OF TRUSTEES OF THE POLICE PENSION FUND, ARTICLE II and THE BOARD OF TRUSTEES OF THE POLICE PENSION FUND, ARTICLE II, Respondents.
Jeffrey L. Goldberg, Esq., for petitioner. Zachary W. Carter, Corporation Counsel for City of New York (Teresita V. Magsino, Assistant Corporation Counsel), for respondents.
Jeffrey L. Goldberg, Esq., for petitioner. Zachary W. Carter, Corporation Counsel for City of New York (Teresita V. Magsino, Assistant Corporation Counsel), for respondents. Gerald Lebovits, J.
Recitation, as required by CPLR 2219 (a), of the papers considered in reviewing petitioner's Article 78.
PapersNumbered
Petitioner's Verified Petition1 Petitioner's Memorandum of Law in Support of its Verified Petition2 Respondents' Verified Answer3 Respondents' Memorandum of Law in Support of its Verified Answer4 Petitioner's Reply Memorandum of Law5 Gerald Lebovits, J.
Jacqueline Ploss, the late Brian Ploss's widow and beneficiary, applied for disability retirement benefits under Municipal Law § 207—k (Heart Bill). Under the Heart Bill, an injury or death to a police officer from heart disease is presumed to have happened while performing and discharging the officer's duty (causation presumption). Mr. Ploss was a police officer with the Police Department of the City of New York (NYPD) for 21 years. Respondents' Medical Board (Medical Board) determined that Mr. Ploss's death was not caused by service-related injuries and recommended to the Article II Pension Fund Board of Trustees (Board of Trustees) that it deny petitioner's application. The Board of Trustees affirmed the Medical Board's determination on October 18, 2011, and determined that petitioner was not entitled to benefits under the Heart Bill. Petitioner commenced an Article 78 petition in 2012 under Index No. 101211/12 against respondents to annul the Board of Trustee's determination denying petitioner benefits under the Heart Bill.
On January 24, 2011, and June 16, 2011, the Board of Trustees remanded petitioner's application to the Medical Board to re-evaluate petitioner's application after petitioner submitted new evidence.
Supreme Court, New York County, dismissed petitioner's Article 78 petition, finding that respondents sufficiently rebutted the causation presumption with supporting credible medical evidence. Supreme Court referred to respondent's conclusion that no "evidence [existed that Mr. Ploss suffered from] myocardial ischemia and lachycardial induced cardiomyopathy." (Pet. Petition, Ex. M.) On appeal, the First Department reversed Supreme Court's decision and remanded to the Medical Board for further proceedings. (Pet. Petition, Ex. O.) The court found that the Medical Board "failed to cite competent and credible evidence which rebutted the conclusion of decedent's cardiologist, and merely pointed to gaps in petitioner's evidence, which is insufficient." (Pet. Petition, Ex. O, at 2). On remand, the Medical Board reviewed petitioner's application and, on April 11, 2014, denied petitioner's application for benefits under the Heart Bill. (Pet. Petition, Ex. P.)
Petitioner commenced this second Article 78 proceeding against respondents, to review and annul respondents' denial of death benefits. Petitioner contends that the Board of Trustees' denial was arbitrary, capricious, unreasonable, and unlawful.
Respondents' determination was neither arbitrary nor capricious. A medical board may rely on credible medical evidence to rebut the causation presumption. Respondents rely on credible medical evidence to rebut the casual presumption. (Gumbrecht v McGuire, 117 AD2d 531, 532 [1st Dept 1986] [holding that the Heart Bill causation presumption "may be rebutted [with] competent evidence"].) It is neither arbitrary nor capricious for a board of trustees to rely on a medical board's conclusion if the recommendation of the medical board is based on some "credible medical evidence." (Matter of Meyer v Bd. of Trustees of the New York City Fire Dept., 90 NY2d 139, 147 [1997]; accord Matter of Longo v City of New York, 178 AD2d 253, 254 [1st Dept 1991] [noting that a medical board's disability determination will not be disturbed if the determination is based on "some credible medical evidence"].)
The credible medical evidence on which a board relies on must be a fact-based medical explanation stemming from a credible source, not "mere conjecture or unsupported suspicion." (Matter of Meyer, 90 NY2d at 147; accord Matter of Canfora v Bd. of Trustees, 60 NY2d 347, 350 [1983] [holding that medical board relied on objective medical evidence when it reviewed officer's medical history and relied on its own chief surgeon's conclusion]; Longo, 178 AD2d at 254 [holding that medical board's reading of an officer's post-accident arthrogram in supporting medical board's conclusion was "an evidentiary-based decision."]; Matter of Simmons v Herkommer, 98 AD2d 651, 652 [1st Dept 1983] [holding that medical board relied on "competent evidence sufficient to rebut" causation presumption when medical board found that an officer's type of heart disease was related to childhood diseases rather than stress conditions].)
When confronted with conflicting medical opinions, a board of trustees is entitled to rely on the unanimous opinion of members of its medical board. (Scotto v Bd. of Trustees of Police Pension Fund of City of New York, Art. II, 76 AD2d 774, 776 [1st Dept 1980].)
A reviewing court may not set aside a board of trustee's denial unless the medical board determines "as a matter of law on the record that the [officer's] disability was the natural and proximate result of a service-related accident." (Santangelo v Kelly, 81 AD3d 439, 440 [1st Dept 2011].) Courts are not permitted to "weigh the medical evidence or substitute their own judgment for that of the medical board." (Matter of Appleby v Herkommer, 165 AD2d 727, 728 [1st Dept 1990].)
Respondents sufficiently rebutted the causation presumption. Thus, respondents' denial of petitioner's application was neither arbitrary nor capricious. Respondents relied on the following credible medical evidence: (1) Dr. Peter Strassberg's examination of Mr. Ploss on July 22, 2009 (Resp. Ans., Ex. 7); (2) Echo-Doppler Report conducted on July 22, 2009 (Resp. Ans., Ex. 8); (3) Pharmacologic Nuclear Stress Test conducted on August 12, 2009 (Resp. Ans., Ex. 9); (4) Transesophageal Echo Test conducted on December 15, 2009 (Resp. Ans., Ex. 10); (5) Ablation Procedural Notes from Dr. Grant R. Simons to Dr. Jared Corriel on April 27, 2010 (Resp. Ans., Ex. 11); (6) letter from Jeffrey L. Goldberg, Esq. to Sergeant Gary DeRosa dated January 10, 2011 (Resp. Ans., Ex. 17); (7) Memo from Dr. Corriel dated July 6, 2010 (Resp. Ans., Ex. 18, 23); (8) consultation notes by Dr. Corriel dated October 3, 2009 (Resp. Ans., Ex. 33); and (9) exam notes from Dr. Steven Klein to Dr. Corriel dated September 19, 2009 (Resp. Ans., Ex. 34). Drs. Strassberg, Simons, Corriel, and Steven Klein were Mr. Ploss's treating physicians.
Respondents determined that Mr. Ploss's death was unrelated to his work as a police officer. Mr. Ploss was 48 years old when he died; he had a history of medical conditions: advanced liver disease, left ventricular dysfunction, and atrial fibrillation. These medical conditions impacted Mr. Ploss's treatment for his arrhythmia. Before Mr. Ploss's death, Drs. Strassberg, Corriel, and Simons treated Mr. Ploss for atrial fibrillation. (Resp. Ans., Ex. 16). Respondents noted that Mr. Ploss's atrial fibrillation was "poorly controlled" throughout his treatment. (Resp. Ans., Ex. 22). Respondents' review of Mr. Ploss's electro-cardiograms findings — "rapid ventricular rate around 100 plus per minute"— supported Mr. Ploss's atrial fibrillation diagnosis rather than a stress-related condition. (Resp. Ans., Ex. 11, 33.) Dr. Simons found that Mr. Ploss would not be a good candidate for antiarrhythmic drugs due to Mr. Ploss's advanced liver disease and left ventricular dysfunction. (Resp. Ans., Ex. 11.) Respondents determined that Mr. Ploss suffered at the time of his death from ventricular arrhythmia, "which he was predisposed to as a result of his severely reduced left ventricular function." (Resp. Ans., Ex. 16.)
Based on the lab tests dated September 18, 2009, respondents determined Mr. Ploss had no hypertension or coronary disease. Respondents' analysis determined that the results "did not include any catecholamine results, [which if included] would have identified the presence of stress [through an] elevation in [Mr. Ploss's] blood pressure and heart rate." (Resp. Ans., Ex. 34.) Respondents' review of the echo-Doppler study report from July 22, 2009, revealed that Mr. Ploss had "moderate mitral regurgitation [that showed] insufficiency of the mitral valve due to mitral valve prolapse, rheumatic heart disease, or a complication of cardiac dilation." (Resp. Ans., Ex. 6, 8.) Respondents have sufficiently supported with credible medical evidence its conclusions that Mr. Ploss's other medical conditions ultimately contributed to Mr. Ploss's death.
A medical board is entitled to rely on its own medical conclusions. Petitioner's argument that Mr. Ploss's cardiologist, Dr. Corriel, determined that Mr. Ploss's "development of a cardiomyopathy was increased by the stress of his job and unusual work hours" is unpersuasive. (Pet. Petition, Ex. K.) Respondents contradicted Dr. Corriel's conclusion and noted that "he [Dr. Corriel] does not mention the fact that [Mr. Ploss's] ulcerative colitis and cholangitis could equally be the cause of any stress contributing to [Mr. Ploss's] arrhythmia." (Resp. Ans., Ex. 22). According to the Medical Board, Mr. Ploss's disability was not the natural and proximate result of a service-related accident. Conflicting medical conclusions between Dr. Corriel and the Medical Board is not dispositive. Respondents may rely on its own Medical Board's unanimous opinions. Mr. Ploss's medical records, medical history, and test results support the Medical Board's determination that his death was not caused by stress-related pathologies. Thus, this court may not set aside the Medical Board's determination.
Under CPLR 2307 (a), petitioner seeks copies of respondents' reports, Board of Trustees' minutes, and Mr. Ploss's medical records. The documents petitioner seeks were already supplied to petitioner in respondents' verified answer at exhibits 1 through 34. Petitioner already obtained the documents. Petitioner's request for documents under CPLR 2307 (a) is denied as academic.
ORDERED AND ADJUDGED that petitioner's verified petition is denied; and it is further
ORDERED that respondents must serve a copy of this order with notice of entry on the County Clerk's Office, which is directed to dismiss this petition.
This opinion is the court's decision and order. Dated: May 26, 2016 J.S.C.