Matter of Serrano v Kelly

[*1] Matter of Serrano v Kelly 2006 NY Slip Op 52398(U) [14 Misc 3d 1203(A)] Decided on December 13, 2006 Supreme Court, New York County Stallman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 13, 2006
Supreme Court, New York County

In the Matter of the Application of Luis Serrano, Petitioner,

against

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, New York City Police Department and the City of New York, Respondents.



101873/2005



Appearances:

For Petitioner:

Jeffrey L. Goldberg, PC

2001 Marcus Avenue

Lake Success, New York 11042

(516) 775-9400

For Respondents:

Michael A. Cardozo, Esq.

Corporation Counsel

City of New York

By: Abby Kaufthal, Esq.

100 Church St

New York, New York 10007

(212) 788-0581

Michael D. Stallman, J.

In this Article 78 proceeding, petitioner Luis Serrano seeks to annul respondents' determination denying his application for accidental disability retirement (ADR) as a result of a heart condition. Petitioner argues that respondents' determination was arbitrary and capricious because they did not apply the presumption of General Municipal Law § 207-k, also known as the "Heart Bill," and the presumption of Administrative Code § 13-252.1, which creates a presumption of accidental disability with respect to certain health conditions if they develop among World Trade Center rescue, recovery, or cleanup workers.

Petitioner was a uniformed police officer of the New York City Police Department (NYPD) since April 29, 1991. On October 2, 2003, petitioner submitted an application for ADR, complaining of a heart condition, then diagnosed as recurrent atrial fibrillation. Police Commissioner Kelly submitted an application for ordinary disability retirement (ODR) on petitioner's behalf. Petitioner alleges that his heart condition was the result of working at the Fresh Kills landfill and at the morgue during 9/11 recovery efforts.

On January 9, 2004, the Medical Board Police Pension Fund, Article II (Medical Board) examined petitioner and concluded that he suffered from idiopathic atrial fibrillation, based on [*2][*3]petitioner's medical records and a physical examination. Although petitioner's blood pressure was occasionally elevated, the Medical Board concluded that it was highly unlikely that hypertension was the cause of petitioner's arrhythmia. When petitioner was examined by Dr. Manaris (a private physician) on February 12, 2003, he had no history of hypertension. The Medical Board therefore recommended approval of ODR benefits, and denial of ADR benefits. On April 14, 2004, the Board of Trustees approved ODR benefits, but remanded consideration of petitioner's application to the Medical Board for additional evidence.

On June 25, 2004, the Medical Board examined petitioner again, noting that petitioner's documented atrial fibrillation had now become very difficult to control, even with medication. The Medical Board deferred final decision pending receipt of the latest echocardiogram. After reviewing the echocardiographic tape, the Medical Board concluded on July 30, 2004 that petitioner's atrial fibrillation must be considered idiopathic in origin. The Medical Board concluded that petitioner did not have prolonged or severe hypertension because the echocardiographic tape did not show evidence of left ventricular hypertrophy. Accordingly, the Medical Board reffirmed its previous decision of January 9, 2004.

On October 13, 2004, the Board of Trustees approved ODR benefits for petitioner, but the vote was tied 6-6 for ADR benefits, resulting in denial of petitioner's ADR application. See Matter of City of New York v Schoeck, 294 NY 559 (1945). Petitioner commenced this Article 78 proceeding on February 9, 2005, and the petition was fully submitted on October 13, 2006.

Generally, an applicant for 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). However, the Heart Bill grants a police officer disabled due to heart disease an evidentiary presumption that the disabling heart condition is the result of an accidental injury, and that the injury was received in the performance of official duties. See Uniformed Firefighters Assn., Local 94, IAFF, AFL-CIO v Beekman, 52 NY2d 463 (1981). The statute provides that the presumption may be overcome by competent evidence to the contrary. General Municipal Law § 207-k(a).

For an idiopathic heart condition, i.e., one of unknown cause, the presumption can be rebutted when the condition is unaccompanied by coronary artery disease or hypertension. Goldman v McGuire, 101 AD2d 768 (1st Dept 1984), affd. 64 NY2d 1041 (1985) (idiopathic ventricular hypertrophy, because no coronary disease, vital signs within normal limits); Matter of Vallas v Safir, 304 AD2d 353 (1st Dept 2003) (idiopathic dilated cardiomyopathy unaccompanied by coronary artery disease or hypertension); accord Matter of Wholihan v Vanessen, 254 AD2d 492 (2d Dept 1998) (mild cardiomyopathy).

The presumption is also rebutted if established medical knowledge demonstrates that the heart disease is congenital, viral, or the result of a childhood disease, such as rheumatic fever. See Matter of Burns v Safir, 305 AD2d 142 (1st Dept 2003) (fibrillation was congenital); Matter of Lo Pinto v Ward, 124 AD2d 497 (1st Dept 1986) (well-established medical fact that neither physical nor emotional stress causes mitral valve prolapse). Similarly, the presumption is rebutted when medical knowledge establishes that police work cannot cause the heart condition at issue. Matter of Callaghan v Bratton, 253 AD2d 390 (1st Dept 1998) (no activity or function in the performance of police duties which can predispose or precipitate atrial fibrillation attacks). [*4][*5]

"It is well settled that the courts cannot weigh the medical evidence or substitute their own judgment for that of the Medical Board." Matter of Santoro v Board of Trustees of New York City Fire Dept. Article 1-B Pension Fund, 217 AD2d 660, 660 (2d Dept 1995). The Medical Board's determination as to causation must be based on "some credible evidence." See Goldman v McGuire, 64 NY2d 1041, supra. However, "[n]either the Medical Board nor the Board of Trustees [are] required to identify the actual cause of the heart condition at issue." Matter of Stegmuller v Brown, 216 AD2d 23, 23 (1st Dept 1995).

Respondents have shown that the presumption of the Heart Bill was rebutted in petitioner's case. Given petitioner's idiopathic atrial fibrillation, the presumption was rebutted because the condition was not accompanied by coronary artery disease or hypertension. See Goldman v McGuire, 64 NY2d 1041, supra. As respondents indicate, the Appellate Division, First Department recognized: "According to [the Medical Board], it is a well-established medical fact that neither physical nor emotional stress is considered to be the cause of atrial fibrillation when it appears as an isolated manifestation, that atrial fibrillation may be considered stress related when it appears in conjunction with underlying heart disease that may be stress related . . . ."

Matter of Gumbrecht v McGuire, 117 AD2d 531 (1st Dept 1986).

Here, Petitioner's SPECT Myocardial Perfusion Scan, performed in February 2003, revealed no evidence of underlying ischemia (see Verified Answer, Exs 1, 8.), which would be an objective manifestation of underlying heart disease. See Matter of Gumbrecht, 117 AD2d at 531. As in Matter of Callaghan (253 AD2d 390, supra), petitioner's echocardiogram tapes from 2003 did not show evidence of left ventricular hypertrophy, the presence of which would indicate the presence of prolonged or severe hypertension. See Verified Answer, Ex 27. Although petitioner's blood pressure was at times high, the Medical Board concluded that, during most readings, the blood pressure was only moderately elevated. Ibid.

Petitioner contends that the Medical Board violated its own "guidelines" as to what impairments are deemed to constitute disabling heart conditions. See Reply Mem., Appendix A. These "guidelines" are notes from cardiology meetings created in the year 2000 to provide a framework for the Medical Board to use in connection with determination of disability retirement applications in which applicants claim to suffer from heart disease. Berkowitz Aff. ¶ 4. Whether they are "guidelines" or "notes," they are not a substitute for the opinion of the Medical Board with respect to this petitioner, which is supported by credible evidence. Indeed, the diagnosis of petitioner's atrial fibrillation preceded the other health conditions which petitioner now claims would show hypertensive heart disease.

Petitioner's reliance on New York City Administrative Code § 13-252.1 is misplaced. Like the Heart Bill, Administrative Code § 13-252.1 creates a presumption of accidental disability for "any condition or impairment of health caused by a qualifying condition or impairment of health resulting in disability to a member who participated in World Trade Center rescue, recovery, or clean up operations for a minimum of forty hours . . . ." First, the definition of "qualifying condition or impairment of health" does not include atrial fibrillation. See Administrative Code § 13-252.1 (c). Second, petitioner has not shown that he suffers from any of the diseases listed as a "qualifying [*6][*7]condition or impairment of health." Petitioner attempts to show that he falls under diseases of the upper or lower respiratory tract (see Administrative Code § 13-252.1 [c] [i], [ii]), and points out that the Mayo Clinic states that atrial fibrillation may be caused by lung disease (see Reply Mem., Ex B). However, the record before the Medical Board does not show that petitioner suffered from any upper or lower respiratory tract diseases or that such diseases caused his atrial fibrillation. In January 2003, petitioner presented with exertional dyspnea, i.e., shortness of breath upon exertion, which led to the diagnosis of atrial fibrillation. A private physician who examined him at the time stated that a pulmonary evaluation was "not significantly revealing," though petitioner's pulmonary function tests were somewhat abnormal. See Verified Petition, Ex B. Records submitted to the Medical Board's review on January 4, 2004 indicated that, as of September 22, 2003, petitioner had no pulmonary complaints. See Verified Answer, Ex 14.

"Where, as here, the decision to deny accident disability benefits to a retired police officer is the result of a tie vote by respondent Board of Trustees of the Police Pension Fund, the determination is subject to judicial annulment only if it can be determined on the record that the retiree is entitled to greater benefits as a matter of law." Matter of Mejia v Kerik, 301 AD2d 385 (1st Dept 2003). The unexplained decline in health of an otherwise apparently healthy police officer is troubling, especially because of the allegations that the disabling condition appears to be worsening, and given continuing, evolving disclosures concerning the condition of workers involved in the aftermath of the 9/11 attacks. However, the Court is constrained to deny the application because petitioner does not show, as matter of law, that he is entitled to ADR. Given the clear and consistent explanation of the Medical Board, which is supported by credible evidence, the Court lacks discretion to remand the matter to respondents for further consideration.

Accordingly, it is hereby

ADJUDGED that the petition is denied and the proceeding is dismissed.

Dated: December 13, 2006

New York, New YorkENTER:

/s/

J.S.C.