Opinion
No. 100255/2010.
2010-10-6
In the Matter of the Application of Eunice VILASECA, Petitioner, For a Judgment under Article 78 of The Civil Practice Law and Rules, v. Raymond KELLY, as the Police Commissioner of the of the City of New York, and as Chairman of the Board of Trustees of the Police Pension Fund, Article II, the Board of Trustees of the Police Pension Fund, Article II, New York City Police Department and the City of New York, Respondents.
Jeffrey L. Goldberg, P.C. for petitioner. Michael A. Cardozo, Esq., Corporation Counsel of the City of New York by Ilyse Sisolak, ACC, for respondents.
Jeffrey L. Goldberg, P.C. for petitioner. Michael A. Cardozo, Esq., Corporation Counsel of the City of New York by Ilyse Sisolak, ACC, for respondents.
O. PETER SHERWOOD, J.
In this CPLR Article 78 proceeding, the petitioner, Eunice Vilaseca (“petitioner”), a police officer, seeks judicial review and annulment of a determination by respondents Raymond Kelly, 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, the Board of Trustees of the Police Pension Fund, Article II (“the Board of Trustees”), the New York City Police Department (“NYPD”), and the City of New York (collectively “Respondents”) denying her application for an accident disability pension.
Background
Petitioner, who is presently 38 years old, was appointed to the NYPD on April 27, 1997, and, pursuant to New York City Administrative Code (“Administrative Code”) § 13–214, became a member of the New York City Police Pension Fund (Ver.Pet.¶¶ 4–5). Prior to her appointment, petitioner passed all requisite physical and mental examinations ( id.).
During the course of her employment, petitioner sustained a number of line of duty (“LOD”) injuries. On January 24, 2002, petitioner reported that while walking down the stairs in a building while on duty, she slipped on a puddle of liquid on the fourth floor landing causing injury to her left knee (Ver. Pet. ¶ 6[A]; Ver. Ans. ¶ 6, Ex. “4”). X-rays taken at Our Lady of Mercy Medical Center indicated no fracture or dislocation of petitioner's left knee, but showed a non-ossifying fibroma. Petitioner was diagnosed with a sprain (Ver.Ans.Ex. “5”). In April 2002, an MRI showed a medial meniscus tear which was treated with surgery on May 15, 2002. Petitioner returned to full duty.
On October 16, 2003, petitioner reported that while turning in her chair at her desk while on duty, she banged her knee on the corner of a filing cabinet under her desk, causing her to fall on her side and injure her knee and back (Ver. Pet. ¶ 6[B]; Ver. Ans. ¶ 7, Ex. “9”).
Her orthopedist diagnosed petitioner as having sustained a mild sprain and no treatment was offered.
In the section of the LOD injury report petitioner completed, petitioner only mentions an injury to her back. In the section of the LOD report completed by petitioner's supervisor, pain in both the knee and back are noted. Petitioner alleges in her Verified Petition a renewed injury to her left knee as result of the October 16, 2003 incident.
On July 7, 2005, petitioner reported that she sustained an injury to her lower back as the result of assisting to support a hospitalized prisoner who was unable to walk and whom she was guarding (Ver.Ans.¶ 8, Ex. “12”). She was seen in the emergency room at Jacobi Hospital and diagnosed with low back pain.
On November 5, 2005, petitioner reported that she had sprayed mace in an attempt to subdue an emotionally disturbed person. The mace fumes caused burning to petitioner's throat, chest and face and her eyes to tear. As a result, petitioner missed three steps on a staircase and fell to the ground injuring her lower back (Ver. Pet. ¶ 6[C], Ex. “A”; Ver. Ans. ¶ 9, Ex. “14”).
Again she was seen in the emergency room of Jacobi Hospital where the diagnoses referred to chronic back and neck problems. No mention was made of any knee injury.
Petitioner alleges in her verified petition that as a result of the November 5, 2005 incident she sustained a renewed injury to her left knee and her lower back. In the LOD injury report, petitioner only claimed an injury to her lower back.
On November 6, 2005, petitioner sustained injuries to her neck, back and knee as a result of an off-duty car accident. Petitioner was treated in the emergency room of Montefiore Hospital where she complained of neck and back pain. X-rays were negative for fracture or dislocation. She was released that same date with pain medication (Ver. Ans. ¶ 10, Exs. “16” and “17”).
On or about November 8, 2006, petitioner applied to the Pension Fund for a line-of-duty disability pension, known as Accident Disability Retirement (“ADR”), claiming in her application that disabling back and left knee pain rendered her unable to perform the duties of a police officer (Ver. Pet. ¶ 7; Ver. Ans. ¶ 11, Ex. “2”). On July 6, 2006, the Police Commissioner, filed an application requesting that the Medical Board of the Pension Fund (“Medical Board”) examine petitioner to determine if she was eligible for Ordinary Disability Retirement (“ODR”) as a result of her alleged injuries (Ver.Ans.¶ 12).
On April 27, 2007, the Medical Board conducted interviews and physical examinations of petitioner and evaluated her medical records. The Medical Board recommended that the Board of Trustees deny both petitioner's ADR application and the Police Commissioner's application for ODR (Ver. Pet. ¶ 9; Ver. Ans. ¶ 14, Ex. “3”).
On September 12, 2007, the Board of Trustees voted to remand petitioner's ADR application to the Medical Board for further review and examination in light of new medical evidence submitted by petitioner (Ver.Ans.¶ 15, Ex. “24”). On November 2, 2007, the Medical Board considered petitioner's ADR application and the Police Commissioner's ODR application for the second time and, after reviewing the new medical evidence, reaffirmed its previous determination and recommended that the Board of Trustees deny both the ADR and ODR applications ( see Petition ¶ 12, Ex. “E”; Ver. Ans. ¶ 16, Ex. “25”).
At its April 9, 2008 meeting, the Board of Trustees again voted to remand petitioner's application to the Medical Board for further review in light of new medical evidence submitted by petitioner (Ver .Ans.¶ 17, Ex. “30”). On July 18, 2008, the Medical Board considered petitioner's ADR and ODR applications for a third and final time, reviewed the new medical evidence, interviewed petitioner, and conducted a physical examination with Dr. Michael Murray, an NYPD orthopedic surgeon, present (Ver. Pet. 19, Ex. “K”; Ver. Ans. ¶ 18, Ex. “31”). The Medical Board in reaffirming its prior determinations recommending denial of petitioner's ADR and ODR applications, stated that “there are no significant objective findings which would preclude this officer from performing the full duties of a New York City Police Officer” ( id.).
The Board of Trustees at its January 14, 2009 meeting adopted the final recommendation of the Medical Board, and denied both ADR and ODR applications (Ver.Ans.¶ 19, Ex. “38”). Petitioner did not seek judicial review of the determination on her first ADR application within the applicable limitations period ( see,CPLR § 217). Therefore, the denial of petitioner's first ADR and ODR applications is not at issue in this proceeding.
On or about March 12, 2009, petitioner submitted a second ADR application claiming that as a result of line-of-duty injuries, she suffered with constant back and left knee pain with loss of mobility which prevented her from performing the full duties of a police officer (Ver.Ans.Ex.“39”). The Police Commissioner also submitted a second ODR application on petitioner's behalf. On June 5, 2009, the Medical Board again considered petitioner's ADR and ODR applications, reviewing medical records from her treating orthopedic surgeons and pain management physician, interviewing petitioner and conducting a physical examination. It was noted that petitioner was pregnant at the time of her last examination by the Medical Board on June 18, 2008, but that such pregnancy was not noted, even thought petitioner claimed to have submitted documentation of such condition, and that petitioner gave birth by C-section on January 2, 2009 (Ver. Pet. ¶ 20, Ex. “N”; Ver. Ans. ¶ 20, ex. “40”). The Medical Board unanimously recommended that the ADR and ODR applications be denied on the ground that petitioner's physical examination showed “no significant objective findings but strictly non-anatomic subjective findings” ( id. ¶ 14). Therefore, the Medical Board concluded that there were no significant orthopedic findings precluding petitioner from performing the full duties of a police officer ( id.).
At its September 9, 2009 meeting, the Board of Trustees voted to adopt the recommendation of the Medical Board to deny petitioner's ADR and ODR applications (Ver. Pet. ¶ 25; Ver. Ans. ¶ 21, Ex. “48”) (“the Determination”). Petitioner was notified of this Determination by letter dated September 14, 2010.
Petitioner now seeks judicial review of the Determination. Petitioner also seeks, pursuant to CPLR 2307, an order directing the respondents to produce: (a) all reports, recommendations, certificates and all other documents submitted to the Article II Pension Board of Trustees of the Police Department of the City of New York in connection with petitioner's disability retirement application; (b) copies of the minutes of Board of Trustees' meetings at which petitioner's ADR and ODR applications were discussed or acted upon; (c) copies of the medical records, reports or notes relating to petitioner which are on file with the NYPD Medical Division.
Discussion
In an article 78 proceeding challenging a disability determination, the Medical Board's finding will be sustained unless it lacks a rational basis, or is arbitrary or capricious (see, Matter of Borenstein v. New York City Employees' Retirement Sys., 88 N.Y.2d 756, 760 [1996] ). “Ordinarily, a Medical Board's disability determination will not be disturbed if the determination is based on substantial evidence,” which “in disability cases ... has been construed to require some credible evidence' “ ( id. at 760–761, 650 N.Y.S.2d 614, 673 N.E.2d 899, citing Matter of Longo v. City of New York, 178 A.D.2d 253, 255, 578 N.Y.S.2d 131 [1st Dept 1991], affd79 N.Y.2d 1011 [1992] ). “[C]redible evidence is 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 Meyer v. Board of Trustees of N.Y. City Fire Dept., Art. 1–B Pension Fund, 90 N.Y.2d 139, 147 [1997];see also Matter of Cusick v. Kerik, 305 A.D.2d 247, 248, 760 N.Y.S.2d 149 [1st Dept 2003] ).
“[A]pplication for accidental disability retirement involves a two-tier administrative process” (Matter of Meyer, 90 N.Y.2d at 144, 659 N.Y.S.2d 215, 681 N.E.2d 382;see also Matter of Borenstein, 88 N.Y.2d at 760, 650 N.Y.S.2d 614, 673 N.E.2d 899). First, the Medical Board must determine whether an applicant “is physically or mentally incapacitated for the performance of city-service” (Administrative Code of the City of New York [“Administrative Code”] § 13–252; see also Matter of Meyer, 90 N.Y.2d at 144, 659 N.Y.S.2d 215, 681 N.E.2d 382;Matter of Borenstein, 88 N.Y.2d at 760, 650 N.Y.S.2d 614, 673 N.E.2d 899). The Medical Board is the sole arbiter of whether the applicant is injured and whether this disability prevents the applicant from performing his or her duties ( id.). Second, if the applicant is deemed to be disabled, the Medical Board makes a recommendation to the Board of Trustees whether the disability was the result of a natural and proximate line-of-duty accident. “If 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 N.Y.2d at 760, 650 N.Y.S.2d 614, 673 N.E.2d 899). The issue of causality is reached only if the Medical Board finds the applicant is disabled.
Courts have annulled determinations of the Medical Board and the Board of Trustees and remanded to the Medical Board for further review when the medical findings do not sustain the Medical Board's determination or when the petitioner's medical issues were not adequately addressed ( see, e.g., Matter of Stack v. Board of Trustees of New York City Fire Dept., Art. 1–B Pension Fund, 38 A.D.3d 562, 832 N.Y.S.2d 55 [2d Dept 2007]; Matter of Rodriguez v. Board of Trustees of New York City Fire Dept., Art. 1–B Pension Fund, 3 A.D.3d 501, 770 N.Y.S.2d 132 [2d Dept 2004] ). Determinations of the Medical Board and the Board of Trustees have also been remanded where the medical evidence did not sustain the determination, the record did not reveal a rational evaluation of the medical evidence, or where the basis of a determination was not adequately articulated ( id.; see, Matter of McAdams v. Kelly, 17 Misc.3d 1112[A], 2007 WL 2965402 [Sup.Ct. N.Y. Co.2007]; Matter of Weller v. Kelly, Index No. 109357/2006 [Sup Ct, N.Y. Co.2009] ). However, the Court may not substitute its judgment for that of the agency, but must decide if the agency's decision has a reasonable basis in the record ( see, Matter of Clancy–Cullen Storage Co. v. Board of Elections of the City of New York, 98 A.D.2d 635, 636, 469 N.Y.S.2d 391 [1st Dept 1983] ).
It is also worth noting that “[n]ot every line of duty injury will result in an award of accident disability” (Matter of McCambridge v. McGuire, 62 N.Y.2d 563, 567–568 [1984] ). Rather, petitioner must demonstrate that the incident giving rise to the Article 78 proceeding was an “accident” within the meaning of § 13–252 of the Administrative Code of the City of New York. An injury is considered accidental if it “arose out of a sudden, fortuitous event which is out of the ordinary and injurious in impact” (Matter of Hopp v. Kelly, 4 A.D.3d 176, 772 N.Y.S.2d 31 [1st Dept 2004] citing Matter of Starnella v. Bratton, 92 N.Y.2d 836, 838 [1998];Matter of Lichtenstein v. Board of Trustees, 57 N.Y.2d 1010, 1012 [1982] ).
Here, contrary to Petitioner's argument, the Medical Board's conclusion that petitioner is not physically incapacitated to perform full-duty police work is supported by credible evidence. Specifically, in its April 27, 2007 report (“4/27/07 Report”), the Medical Board (a) listed Petitioner's line-of-duty injuries (4/27/07 Report, ¶¶ 3, 7, 9, 10); (b) reviewed results of MRIs, a CT scan and an X-ray of petitioner's left knee, lumbar spine, and cervical spine ( id., ¶¶ 4, 6, 11, 13, 14, 19, 457 N.Y.S.2d 472, 443 N.E.2d 946,); (c) reviewed records of petitioner's May 15, 2002 surgery for a left knee meniscal tear( id., ¶ 5, 457 N.Y.S.2d 472, 443 N.E.2d 946) and of her November 15, 2006 surgery for an anterior horn tear of the medial meniscus, partial tear of the anterior cruciate ligament and tri-compartment synovectomy of the left knee; (d) interviewed petitioner who complained of pain and reported that she was using a knee brace and cane, undergoing physical therapy and taking various pain medication ( id., ¶ 20, 457 N.Y.S.2d 472, 443 N.E.2d 946); and (e) performed a physical examination of petitioner's knees, lumbar spine, and lower extremities, which included various range-of-motion tests ( id., ¶ 21, 457 N.Y.S.2d 472, 443 N.E.2d 946). The Medical Board noted that the results of the April 1, 2002 MRI of the left knee revealed a tear of the posterior horn of the medial meniscus ( id. ¶ 4, 457 N.Y.S.2d 472, 443 N.E.2d 946), the June 24, 2003 MRI of the lumbar spine showed mild disc bulges at the L4–5 and L5–S1 levels ( id., ¶ 6, 457 N.Y.S.2d 472, 443 N.E.2d 946), the December 20, 2005 MRI of the left knee showed the tear of the medial meniscus evident in the 2002 MRI ( id. ¶ 13, 457 N.Y.S.2d 472, 443 N.E.2d 946), a May 23, 2006 MRI of the lumbar spine revealed central disc herniation at the L3–4, L4–5 and L5–S–1 levels ( id. ¶ 14, 457 N.Y.S.2d 472, 443 N.E.2d 946), and a January 29, 2007 MRI of the left knee revealed post surgical changes in the medial and lateral menisci ( id. ¶ 19, 457 N.Y.S.2d 472, 443 N.E.2d 946). An x-ray and CT scan of the cervical spine on November 6, 2005, the date of the off-duty automobile accident, were negative ( id. ¶ 11, 457 N.Y.S.2d 472, 443 N.E.2d 946). The Medical Board noted that petitioner's cane showed minimal wear despite petitioner stating that she used it continuously since November ( i.e., five months before the examination) and that petitioner's knee brace also showed only mild to moderate wear ( id. ¶ 21, 457 N.Y.S.2d 472, 443 N.E.2d 946). The results of the physical examination showed that motion on full extension of the left knee “was met by significant guarding, as was flexion” and the range of motion of the left knee was “0 to 120 degrees limited by subjective guarding” ( id.). Straight leg raises of both legs were “met with severe subjective guarding”, the left greater than the right. The lumbar spine had limited forward flexion of 20 degrees. Petitioner also complained of tenderness to light palpation and touch of the lumbar spine, but there was no palpable evidence of spasm ( id.). On this basis, the Medical Board concluded that “there were no significant objective findings precluding” the petitioner from performing the full duties of a police officer ( id ., ¶ 22, 457 N.Y.S.2d 472, 443 N.E.2d 946).
In its November 2, 2007 report (“11/02/07 Report”), the Medical Board summarized new medical evidence provided by petitioner, including reports from her orthopedic surgeon, Dr. Gabriel Dassa, a neurologist, Dr. Aric Hausknecht, and Dr. John Olsewski ( see 11/02/07 Report, ¶¶ 4–7). Dr. Dassa noted that petitioner had increased pain and radiating pain with numbness in her left leg and her left leg was giving way, but he noted that his physical examination of petitioner was unchanged from his last evaluation. Dr. Hausknecht found slightly limited range of motion of petitioner's back and after reviewing petitioner's MRIs of her lumbar spine, concluded that petitioner showed evidence of cauda equina syndrome. The Medical Board stated that such condition usually required surgery, but Dr. Hausknecht only requested authorization for EMG/nerve conduction studies. Such EMG/nerve conduction tests were performed on August 16, 2007, but neither Dr. Hausknecht nor Dr. Dassa offered any interpretation of these studies ( id. ¶ 6, 457 N.Y.S.2d 472, 443 N.E.2d 946). Dr. Olsewski stated in his September 13, 2007 report that he conducted range of motion testing on petitioner finding no evidence of weakness in the upper or lower extremities, no abnormal reflexes and no neurological tests that produced pain. He found restriction in mobility of petitioner's spine and straight leg raising of 45 degrees bilaterally in seated and supine positions. Dr. Olsewski did not confirm the diagnosis of cauda equine syndrome, but diagnosed petitioner as having multi level spondylosis with principal back pain as her complaint and some radicular type of complaints including paresthesias. Dr. Olsewski recommended repeat evaluation of MRI and problematic discography and made no recommendation for intervention until such tests were performed. No evidence was submitted to the Medical Board that the follow-up testing was performed. Upon review of the evidence, the Medical Board noted that Dr. Dassa's “very limited report” offered no new evaluation, Dr. Hausknecht's diagnostic conclusions were not supported by the neurological examination or EMG studies and the studies recommended by Dr. Olsewski were not performed. Petitioner was not interviewed nor was a physical examination of petitioner performed. The Medical Board then adhered to its previous recommendation that the ADR and ODR applications be denied.
In its July 18, 2008 report (“07/18/08 Report”) (Ver.Ans., Ex. “31”), the Medical Board summarized new medical evidence submitted by Petitioner, including reports of an EMG/NCV study of the lower extremities dated August 16, 2007 which revealed evidence of right L5–S1 radiculopathy; a report of an MRI of the lumbar spine dated October 3, 2007 which showed disc herniation at L4–5 and L5–S1, disc bulge at L5–S1, annular tear of disc material at L5–S1 and dessication of disc material at L3–4, L4–5, and L5–S1; a report of a discogram dated March 14, 2008 showing positive provocation at L2–3, L3–4, L4–5 and L5–S1; follow-up notes of Dr. Olsewski after review of the MRI and discogram in which he recommended that petitioner undergo surgery; follow-up notes of Dr. Dassa in which he states his opinion that petitioner is permanently disabled; report of a NYPD orthopedic surgeon who examined petitioner and after conducting range of motion testing concluded that petitioner should be on restricted duty ( see 07/18/08 Report, ¶¶ 4–10). The Medical Board upon its review of the October 3, 2007 MRI found overt pathology. The Medical Board recorded Petitioner's subjective complaints and performed a physical examination in the presence of Dr. Murray, which included various range-of-motion tests of Petitioner's lower extremities, knees and lower back ( id., ¶¶ 8–9, 457 N.Y.S.2d 472, 443 N.E.2d 946). The physical examination revealed, inter alia, that there was a limited range of motion of the lower back, full extension of the legs without pain, and some tenderness in both knees but less so on the right knee ( id., ¶ 13, 457 N.Y.S.2d 472, 443 N.E.2d 946). The Medical Board observed that it did not find any objective findings of disability in the left knee, but noted that “the guarding and cogwheeling rendered an objective evaluation difficult” and it found no objective neurological or orthopedic findings with regard to the lumbosacral spine ( id. ¶ 15, 457 N.Y.S.2d 472, 443 N.E.2d 946). Based on this evidence, the Medical Board concluded that “there [were] no significant objective findings that would preclude [the petitioner] from performing the full duties” of a police officer ( id., ¶ 16, 457 N.Y.S.2d 472, 443 N.E.2d 946) and reaffirmed its previous decision recommending disapproval of the ADR and ODR applications.
In its June 5, 2009 report (“06/05/09 Report”) (Ver.Ans., Ex. “40”), the Medical Board summarized the prior medical evidence, noting that despite the discogram results petitioner's orthopedic surgeon had not recommended surgery. It also reviewed new medical evidence submitted by petitioner, including follow-up notes from Dr. Dassa and Dr. Gopal (12/09/08 Report, ¶ 4). The Medical Board recorded petitioner's subjective complaints and performed a physical examination ( id., ¶¶ 5–6, 457 N.Y.S.2d 472, 443 N.E.2d 946). The physical examination, inter alia, revealed that petitioner (a) was unable to walk on her heels and toes, (b) “had “non-anotomic antalgic gait”, (c) “forward flexion was limited to 30°” and she “ha[d] pain with extension and rotation as well”, (d) “the neurological status revealed 5/5 strength in the left lower extremity ... The right revealed a complete diffuse muscle strength loss with 3/5 strength with cogwheeling and obvious subjective guarding”, (e) petitioner “cogwheeled both knees excessively” when asked to do range of motion tests in the sitting position”, (f) she had “non-anatomic decreased sensation to pin-prick in the right in comparison to the left”, and (g) she had full extension and full flexion of the knees and had no meniscal signs ( id. ¶ 13, 457 N.Y.S.2d 472, 443 N.E.2d 946). The Medical Board concluded that there were “no significant objective findings but strictly non-anatomic subjective findings ... There are no significant orthopedic findings precluding [the petitioner] from performing the full duties of” a police officer ( id., ¶ 14, 457 N.Y.S.2d 472, 443 N.E.2d 946).
Review of the record demonstrates that all of the Medical Board's four conclusions were based on the review of the medical records provided by petitioner, including the results of MRI, EMG.NCV, discograms, CT scans and X-ray tests, as well as its own physical examinations of petitioner. In denying petitioner's ADR and ODR applications, it is clear from the record that the Medical Board disagreed with petitioner's health care providers and did not consider the conditions described to be disabling. The Medical Board sufficiently articulated its reasons for denying petitioner's applications and its conclusions are amply supported by credible evidence ( see Matter of Meyer, 90 N.Y.2d at 147, 659 N.Y.S.2d 215, 681 N.E.2d 382;see also Matter of Borenstein, 88 N.Y.2d at 761, 650 N.Y.S.2d 614, 673 N.E.2d 899).
Petitioner contends that she suffers from disabling orthopedic conditions, that she is, in fact, physically disabled for full-duty police work, and that the medical evidence she submitted to the Medical Board supports this fact. On that basis, petitioner argues that the Medical Board's determination is conclusory and unsupported and should not be deemed to be supported by substantial credible evidence. However, as the Court of Appeals stated, where medical evidence is “subject to conflicting interpretations,” “the [Medical] Board alone ha[s] the authority to resolve such conflicts” (Matter of Borenstein, 88 N.Y.2d at 761, 650 N.Y.S.2d 614, 673 N.E.2d 899). Thus, it is for the Medical Board, and not the court, to weigh conflicting evidence and the court must defer to the Medical Board's own medical expertise and diagnoses ( id.).
Conclusion
In view of the above, it is hereby
ADJUDGED that the petition is denied and the proceeding is dismissed.
This constitutes the decision, order and judgment of the Court.