Matter of Lewis v Kelly

[*1] Matter of Lewis v Kelly 2009 NY Slip Op 50477(U) [22 Misc 3d 1137(A)] Decided on March 16, 2009 Supreme Court, New York County Sherwood, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2009
Supreme Court, New York County

In the Matter of the Application of Patricia Lewis, Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules,

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.



112220/2008



Appearances: Jeffrey L. Goldberg, Esq. for petitioner

Michael A. Cardozo,Corporation Counsel of the City of New York by Jeremy I. Huntone, (ACC of counsel) for respondents

O. Peter Sherwood, J.

In this CPLR Article 78 proceeding, petitioner Patricia Lewis ("petitioner" or "Lewis"), a retired New York City police detective, seeks an order: (1) annulling respondents' denial of her application for accident disability retirement ("ADR") benefits, based upon their finding that she was not disabled as a result of lung disease and chronic sinusitus arising out of the events of September 11, 2001, as arbitrary, capricious, unreasonable and unlawful; and (2) directing respondents to retire petitioner with a line of duty ADR allowance retroactive to the date of her ordinary service retirement. Alternatively, petitioner seeks an order remanding the matter and directing that the Board of Trustees of the Police Pension Fund, Article II ("the Trustees") allow petitioner to present testimony at a hearing in order to prove her entitlement to a line of duty ADR.

Petitioner also seeks an order pursuant to CPLR § 2307 directing respondents to serve and file: (1) all reports, recommendations, certificates and other documents submitted to the Trustees in connection with petitioner's retirement; (2) copies of the minutes of the Trustees' meeting with [*2]respect to petitioner's retirement application; and (3) copies of all medical records, reports, or notes

related to petitioner which are on file with the Trustees and /or the New York City Police Department ("NYPD").

Respondents the Trustees, Raymond Kelly, as Police Commissioner of the NYPD and Chair of the Trustees, the City of New York and the NYPD (referred to collectively as "respondents") oppose the petition.

For the reasons which follow, the petition is denied and the proceeding is dismissed.

Background

Lewis was appointed to the NYPD on July 16, 1984, 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; Ver. Ans. ¶¶ 4, 5). . Petitioner remained a member of the NYPD from the date of her appointment until her retirement in 2004 (Ver. Pet. ¶ 4). Over the years, she suffered several line of duty injuries including injuries to her right ankle, right knee, right elbow, neck, back and face as a result of being hit by a vehicle on April 27, 1993, and injuries to her neck and back stemming from two on-duty motor vehicle accidents on August 2, 1988 and November 7, 1995, respectively (Ver. Ans. ¶¶ 6, 7, 8; Resp's Ex. 6, ¶ 3). In addition, on September 11, 2001, Lewis, while assisting at the World Trade Center disaster site, reportedly sustained injuries to her lungs, throat, eyes, neck, back, arms, legs and ears as a result of exposure to smoke, asbestos, fiberglass particles and falling debris (Ver. Pet. ¶ 6; Ver. Ans. ¶ 9).

On October 8, 2002, petitioner filed an ADR application to the Article II Medical Board ("Medical Board") stating that she is unable to perform full police duty based upon symptoms of shortness of breath, wheezing, coughing, burning and chest discomfort which she maintains were caused by her work at the World Trade Center site on September 11, 2001 (Resp. Ex. 1).[FN1] The

Police Commissioner filed an application to the Medical Board for Ordinary Retirement Disability ("ODR") on petitioner's behalf (Ver. Pet. ¶ 9; Ver. Ans. ¶ 10; Resp. Ex. 6, ¶ 1).

The Medical Board first considered petitioner's application on June 18, 2003. That same date, the Medical Board examined and interviewed petitioner, and reviewed her medical records related to previous line of duty injuries, as well as medical records related to the injuries at issue here, after which it recommended that the applications for ADR and ODR be denied. In reaching its determination, the Medical Board specifically considered the medical record of Bellevue Hospital, dated September 11, 2001; two medical reports of petitioner's treating physician, Dr. Jaime [*3]Szeinuk of Mount Sinai Medical-Irving J. Selikoff Center for Occupational and Environmental Medicine, dated March 3, 2002 and May 19, 2003, respectively; a post-operative report of Dr. Richard Lebowitz of New York University Medical Center; a medical report of Dr. Konan Chiang, dated May 5, 2003; a pulmonary consultation report of Dr. Fleming of the NYPD Medical Division, on or after May 14, 2008; and a report of Dr. Alexander Gapay, dated May 15, 2003. The various medical reports are conflicting (Ver. Ans. ¶ ¶ 11-22; Resp. Ex. 6).

At the time of Dr. Szeinuk's examination of December 23, 2002, Lewis was complaining of shortness of breath when exerting herself. Spirometry testing [FN2] showed a mild restrictive impairment that had not changed since October 2002 and a methacholine challenge test [FN3] was negative thereby excluding hyperactive airway disease. Dr. Szeniuk concluded that the etiology of petitioner's pulmonary complaints was not clear at that time, but he did not see any contraindication for surgery that was thereafter performed to treat petitioner's chronic sinusitis. In his later report of May 19, 2003, Dr. Szeniuk stated that petitioner should be continued on limited duty as her pre- and post operative oxygen saturation tests showed that Lewis' heart rate raised dramatically after a few steps of exercise and her oxygen saturation did not increase with exercise. He further noted that Lewis continued to present fatigue and respiratory difficulty when climbing stairs and when hurrying on level ground. Contrary to Dr. Szeinuk's findings, Dr. Fleming diagnosed petitioner as having hyperactive airway disease, mild, but did not consider her as being disabled from a pulmonary standpoint. Dr. Fleming continued petitioner on Advair inhalation and placed her on full duty. Dr. Gapay indicated that petitioner had chronic shortness of breath as the result of bronchospastic and restrictive lung disease.

The Medical Board's report of its examination of petitioner makes no mention of any pulmonary tests it performed. Rather, its physical examination of petitioner appears to have been limited to her orthopedic complaints. In her interview, petitioner stated with regard to her pulmonary condition that she was only able to walk a block and a half, takes Advair twice a day, and is on restricted duty (Resp's Ex. 6, ¶ 14).

In its written determination, the Medical Board found that "the documentary and clinical examination, do not substantiate the fact that this officer is disabled from performing the full duties of a New York City police officer" (Ver. Pet. ¶ 11; Pet's Ex. E; Resp. Ex. 6, ¶ 16).

On October 9, 2003, the Trustees remanded the ADR applications to the Medical Board to consider new evidence, including two reports from Dr. Szeinuk, dated August 1, 2003 and [*4]September 3, 2003 (Ver. Ans. ¶ 22).[FN4] The Medical Board also re-interviewed petitioner and conducted a new physical examination which again was limited to her orthopedic complaints. Lewis's pulmonary complaints remained the same as the previous interview. In his August 1, 2003 report, Dr. Szeinuk stated that petitioner had been diagnosed with:

"reactive airway dysfunction syndrome (RADS, a form of occupational

asthma) caused by exposure to fumes, dust and fires at the World Trade

Center disaster area. The patient continues to report symptoms of

difficulty breathing and limitation to her ability to exercise because of

this symptom. Her most recent breathing tests continue to show

persistent restrictive impairment, confirmed with full lung volume. No

significant change was noted as compared to previous pulmonary function

tests performed in October 2001. She is on bronchodilator/steroid inhaler

twice a day and on a rescue inhaler (Resp's Ex.18) ."

Dr. Szeinuk also noted a possible recurrence of petitioner's sinusitus for which she was referred to her EMT physician and concluded that Lewis was unfit to perform her duties as a police officer "given her restrictive impairment and the lack of adequate oxygenation to exercise" (Resp's Ex. 18). In his September 4, 2003 report, Dr. Szeinuk stated that a chest CT scan had been performed on petitioner on August 13, 2003, and "showed no abnormalities of the lung fields and no evidence of significant air trapping in the expiratory study" (Resp's Ex. 19). Despite those results, Dr. Szeinuk opined that it did not change his opinion expressed in his August 1, 2003 report that Lewis was unfit to perform her duties as a police officer. The Medical Board reaffirmed its previous recommendation that petitioner's ADR and ODR applications should be denied on the ground that the documentary and clinical evidence did not support a finding that petitioner was disabled from performing her duties as a police officer (Ver. Ans. ¶ 26; Resp's Ex. 17). On May 12, 2004, the Trustees adopted the Medical Board's recommendation and denied petitioner's ADR and ODR applications.

On May 19, 2004, Lewis filed another application for ADR based upon her complaints of shortness of breath, burning lungs and nose bleeds which precluded her from performing her duties as a police officer and the Police Commissioner filed an application for ODR on her behalf (Ver. Pet. ¶ 12; Ver. Ans. ¶ 28). The Medical Board met on March 25, 2005, at which time it interviewed petitioner and reviewed additional medical reports. Petitioner stated that she continued to have [*5]shortness of breath and dyspnea [FN5] and reported chest discomfort and shortness of breath during the pulmonary exercise test (Resp's Ex. 23). The Medical Board reviewed the results of pulmonary function tests performed on November 17, 2004 and January 13, 2005, which were consistent in their indication that petitioner had mild restricted lung disease, and the December 21, 2004 report of Dr. Gwen Skloot, the Director of the Pulmonary Physiology Laboratory at the Mount Sinai School of Medicine, who supervised a maximal bicycle ergometer cardiopulmonary exercise study with petitioner which had to be terminated due to moderate to severe dyspnea and burning chest pain. Dr. Skloot concluded that:

"resting pulmonary function revealed mild restriction but normal gas

exchange and MVV [maximal voluntary ventilation]. Oxygen consumption

at peak exercise was mildly reduced when adjusted for weight. Cardiovascular

and gas exchange parameters were within normal limits. Ventilatory parameters

were remarkable for a reserved close to the lower limit of normal. In conclusion,

[Lewis] was able to exercise maximally without cardiac or pulmonary limitation.

The results do suggest near ventilatory limitation without a specific disease

pattern. Repeat testing with an arterial line may be considered if [petitioner's]

dyspnea persists" (Resp's Ex. 26).

The Medical Board again recommended disapproval of petitioner's ADR and ODR applications, finding that the documentary and clinical evidence did not substantiate Lewis' claim that she could not perform her full duties as a police officer. It stated that petitioner's pulmonary function tests (PFT) showed "a mild restricted disease in the setting of dyspnea on exertion. However, further work-up including an exercise O2 saturation test failed to show desaturation. Thus, [the petitioner] fails to meet criteria for pulmonary disability" (Pet's Ex. H; Resp's Ex. 23). On October 12, 2005, the Trustees again remanded the petitioner's ADR for consideration of new evidence (Ver. Pet. ¶ 15; Ver. Ans. ¶ 35; Resp's Ex. 27).

On August 2, 2006, the Medical Board reviewed petitioner's second ADR application for a second time. The Medical Board considered a May 2005 PFT, which showed improvement over a March 2005 PFT, and a July 19, 2005 PFT which revealed moderate restrictive disease. It also considered more recent PFTs which "revealed a moderate restrictive impairment confirmed with full lung volumes, decreased carbon monoxide diffusing capacity and decreased oxygen saturation after exercise" (Resp's Ex. 28, ¶ 9). Petitioner stated upon her interview that she continued to have dyspnea on exertion and had more difficulty in extremes of temperature (Resp's Ex. 28, ¶ 10). Two letters from Dr. Szeinuk, dated August 15, 2005 and July 14, 2006, were reviewed and were consistent with Dr. Szeinuk's earlier position that petitioner could not fulfill the requirements of a police officer. The Medical Board deferred its decision pending review of all pulmonary function data submitted.

On September 20, 2006, the Medical Board re-evaluated petitioner's second ADR and ODR applications and recommended disapproval of same (Resp's Ex. 34, ¶ 6). The Medical Board noted the medical reports previously reviewed, namely, the maximal bicycle ergometer cardiopulmonary [*6]study of December 21, 2004, a PFT of January 13, 2005, and Dr. Szeinuk's letter of August 15, 2005. The Board stated that Dr. Szeinuk's opinion that petitioner had shown lack of adequate oxygenation to exercise was contradicted by earlier tests. It reviewed CT scans of the petitioner's chest and lungs performed on January 21, 2005 which were normal. The Medical Board concluded that petitioner had a mild functional restrictive defect. It stated that: "[a]lthough her symptoms and complaints are related to the World Trade Center disaster, the Medical Board does not find this restrictive defect to be related to her exposure" (Resp's Ex.34, ¶ 6). On April 11, 2007, the Trustees remanded petitioner's ADR and ODR applications for reconsideration in light of new evidence and for reexamination of petitioner.

The Medical Board's fourth and final re-examination of petitioner's second ADR and ODR applications occurred on November 7, 2007, and again the Medical Board reaffirmed its recommendation of disapproval of petitioner's ADR and ODR applications. New evidence reviewed consisted of a CT scan of petitioner's paranasal sinuses performed on February 24, 2006, which showed post-surgical scattered inflammatory disease and nasal septum deviation. An August 7, 2006 consultation note of Dr. Szeinuk revealed that petitioner's condition was stable; she continued to have severe throat inflammation; and she was advised to continue a home exercise program. A January 9, 2007, letter of Dr. Szeinuk was also considered. In it, Dr. Szeinuk adheres to his earlier position concerning petitioner's pulmonary condition stating that petitioner experienced difficulty breathing when walking short distances on level ground. Petitioner was again interviewed and reported that walking a distance of 50 feet from the waiting area to the Medical Board examining room caused her to become short of breath (Resp's Ex. 37, ¶ ¶ 5, 6, 7). On May 14, 2008, the Trustees adopted the Medical Board's recommendation to deny petitioner's application for ADR and the Police Commissioner's application on petitioner's behalf for ODR based upon petitioner's pulmonary condition (Ver. Pet. ¶ 18; Ver. Ans. ¶ 59; Resp's Ex. 41).

Petitioner timely commenced this proceeding on September 8, 2008, seeking an order pursuant to CPLR Article 78 annulling respondents' determination denying her an ADR as arbitrary, capricious, and unlawful, based upon a failure to use the proper test for determining entitlement to a line of duty accident disability pension and contrary to the competent evidence submitted and directing respondents to retire her with a line of duty disability retirement allowance. Alternatively, petitioner seeks an order directing the Trustees to permit her to present testimony at a hearing regarding the factual issues herein.

In opposition, respondents argue that the denial of petitioner's ADR application was supported by ample objective credible medical evidence in the record and was neither arbitrary nor capricious. Respondents also noted that the Medical Board has the final authority to resolve conflicts in medical evidence. Lastly, respondents contend that all that due process requires is to afford petitioner an opportunity to present evidence to the Medical Board, but not necessarily the opportunity to personally appear for a hearing before the Medical Board or the Trustees.

Discussion

In a CPLR article 78 proceeding challenging a disability determination, the Medical Board's finding will be sustained unless it lacks a rational basis or is arbitrary and capricious (see, Matter of Borenstein v New York City Employees' Retirement System, 88 NY2d 756, 760 [1996]). Application for accidental disability retirement involves a two-tier administrative process whereby the three-physician pension fund Medical Board determines whether a member is disabled for performance [*7]of duty and ought to be retired and, if the member is disabled, whether such disability is the result of an accidental injury received in the line of duty (see, Administrative Code of City of NY § 13-252). The Medical Board's determination is conclusive so long as it is supported by substantial evidence which, in the context of disability cases, has been construed to "require some credible evidence" (Matter of Borenstein, supra at 760). "[C]redible evidence is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered * * * and further that it must be evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion" (Matter of Meyer v Bd. of Trustees of the New York City Fire Dept., 90 NY2d 139, 146-147 [1997]). The applicant has the burden of showing both the disability and causation (see e.g., Matter of Evans v City of New York, 145 AD2d 361 [1st Dept. 1988]; Matter of Archul v Bd. of Trustees of the New York City Fire Dept., Art 1-B Pension Fund, 93 AD2d 716 [1st Dept. 1983]).

Where the medical testimony is conflicting, it is the sole province of the Medical Board to resolve any conflicts (see, Matter of Borenstein, supra at 761; Matter of Clarke v Bd. of trustees of the New York City Fire Dept., Article 1-B Pension Fund, 46 AD3d 559, 560 [2d Dept. 2007]). It is well settled that once the Medical Board certifies that an applicant is not medically disabled for duty, the Board of Trustees of the Police Pension Fund is bound by that determination (Matter of Borenstein, supra). The purview of the courts is similarly limited. Reviewing courts may not weigh the medical evidence or substitute their judgment for that of the Medical Board (id.).

Application of this standard to the facts of the instant matter leads to the conclusion that the Trustees properly upheld the Medical Board's recommendation that petitioner's ADR and ODR applications be denied. Here, the Medical Board reviewed petitioner's first application for ADR twice and her second ADR application four times. The Medical Board's written reports upon its reviews of medical evidence and its interviews and examinations of the petitioner demonstrate that the Medical Board considered all the medical evidence submitted by petitioner and reviewed such evidence carefully in its reports. Although petitioner's treating physician Dr. Szeinuk consistently concluded that petitioner had a line of duty pulmonary disability that precluded her from performing the duties of a police officer, his conclusion was not entirely consistent with the medical evidence which either yielded normal results or showed that petitioner had a mild restrictive impairment of her airways, which was being treated with an inhaler.Petitioner's subjective complaints were also not supported by the objective medical proof. Thus, while petitioner clearly suffered from some impairment, the Medical Board's finding that such impairment did not rise to the level of a disability precluding her from performing her duties as a police officer has a rational basis in the record and is supported by independent credible evidence. As previously noted, resolution of conflicting medical evidence is solely within the province of the Medical Board. Accordingly, this court must defer to the expertise of the Medical Board in resolving the conflicting medical evidence and to the judgment of the Trustees in adopting the Medical Board's recommendation.

Since the Medical Board did not find petitioner disabled from the performance of her duties as a police officer, it was not required to reach the second tier of review, namely, whether the disability was a proximate result of an accidental injury received in the line of duty.

Based upon the foregoing discussion, it is hereby

ORDERED and ADJUDGED that the petition seeking to annul respondents' determination to deny ADR and to remand this matter to respondents for further consideration is denied and the [*8]proceeding is dismissed.

This shall constitute the decision, order and judgment of the court.

DATED:__March 16, 2009

E N T E R,

______________________________

O. PETER SHERWOOD

J.S.C. Footnotes

Footnote 1:Petitioner also filed two ADRs based upon orthopedic injuries allegedly sustained in the line of duty on September 11, 2001. After multiple reviews, the Trustees denied those applications. Petitioner commenced a CPLR article 78 proceeding in this court seeking to annul the Trustees' determination in this regard (Lewis v Kelly, Index No. 110878/2007). The petition was withdrawn with prejudice pursuant to the parties' stipulation dated November 26, 2007, and the proceeding was dismissed by Justice Eileen Rakower by order dated December 3, 2007 (Resp's Ex. 42). The orthopedic ADR applications are not the subject of the instant CPLR article 78 proceeding. Accordingly, so much of the medical reports reviewed by the Medical Board as addressed petitioner's orthopedic injuries and symptoms will not be addressed herein.

Footnote 2:According to respondents, "[s]pirometry measures the mechanical function of the lung, chest wall and respiratory muscles by assessing the total volume of air exhaled from a full lung to an empty lung." This test is used to evaluate baseline lung function and to detect pulmonary disease (Ver. Ans., p. 9, fn. 12).

Footnote 3:Respondents state in their answer that "[m]ethacholine is a parasympathomimetic drug administered in the form of its chrystalline chloride * * * especially to diagnose hypersensitivity of the bronchial air passages (as in asthma)" citing Merriam-Webster's Medical Dictionary 451 (2nd Ed. 2006) (Ver. Ans. p. 4, fn. 3).

Footnote 4:The minutes of the Trustees' Executive Session on October 9, 2003, and its written decision that same date indicate that "both cases" are remanded. It is unclear whether the two cases referred to are the ADR and ODR applications or the two ADR cases based upon pulmonary and orthopedic injuries (Resp's Ex. 17). However, for purposes of this proceeding the Court will assume that the Trustees were referring to only the ADR applications because respondents' answer indicates that the Trustees considered only the Medical Board's recommendation regarding petitioner's ADR applications (Ver. Ans. ¶ 22).

Footnote 5: Dyspnea is "difficult or labored respiration" Merriam-Webster's Medical Dictionary 208 (2nd Ed. 2006) (Ver. Ans. P. 10, fn. 13).