Opinion
10992 Index 100579/17
02-11-2020
In re Christopher SIGMON, Petitioner–Respondent, v. James P. O'NEILL, etc., et al., Respondents–Appellants.
James E. Johnson, Corporation Counsel, New York (Jeremy W. Shweder of counsel), for appellants. Chet Lukaszewski, P.C., Garden City (Chester Lukaszewski of counsel), for respondent.
James E. Johnson, Corporation Counsel, New York (Jeremy W. Shweder of counsel), for appellants.
Chet Lukaszewski, P.C., Garden City (Chester Lukaszewski of counsel), for respondent.
Friedman, J.P., Renwick, Kern, Oing, JJ.
Order and judgment (one paper), Supreme Court, New York County (Arlene P. Bluth, J.), entered March 29, 2018, which granted the petition seeking to annul respondents' determination, dated January 11, 2017, denying petitioner's application for an Accident Disability Retirement (ADR) pension, and awarded petitioner ADR retroactive to January 11, 2017, unanimously affirmed, without costs.
Petitioner met his burden of establishing that he was entitled to ADR benefits by submitting a report from the surgeon who performed his spinal surgery, an emergency room report and a contemporaneous line-of-duty (LOD) report each indicating injury to his shoulder and back, and an MRI showing chronic changes consistent with the symptoms reported to petitioner's surgeon(see Matter of Salvia v. Bratton, 159 A.D.3d 583, 70 N.Y.S.3d 379 [1st Dept. 2018], lv denied 31 N.Y.3d 913, 2018 WL 3152805 [2018] ). Such medical evidence showed that petitioner suffered from chronic back pain as a result of the LOD injury.
Respondents' determination that petitioner's accident was not causally related to his disability, based primarily on an almost two-year gap in treatment, during which time petitioner returned to full duty, was conclusory in light of the medical evidence (see Matter of Boder v. O'Neill, 170 A.D.3d 528, 529, 94 N.Y.S.3d 437 [1st Dept. 2019] lv denied 33 N.Y.3d 910, 2019 WL 2622636 [2019] ; Salvia at 583–584, 70 N.Y.S.3d 379 ). Respondents failed to refute the opinion of petitioner's surgeon that the condition was causally related to the LOD injury, or offer an alternative trigger, and failed to consider the measures petitioner took during the gap in treatment to control his back pain.