Matter of Fernandez v Board of Trustees of the NY Fire Dept. Pension Fund Subchapter 2

[*1] Matter of Fernandez v Board of Trustees of the NY Fire Dept. Pension Fund Subchapter 2 2009 NY Slip Op 50771(U) [23 Misc 3d 1113(A)] Decided on April 15, 2009 Supreme Court, Kings County Knipel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 15, 2009
Supreme Court, Kings County

In the Matter of the Application of Jackie Kaht Fernandez, Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules,

against

Board of Trustees of the New York Fire Department Pension Fund, Subchapter 2, et. al., Respondents.



26232/08



Plaintiff's Attorney

Magda M. Deconinck, Esq.

225 Broadway

New York, NY 10007

(212) 933-1694

Defendant's Attorney

Jeremy Huntone, Esq.

Corporation Counsel of the City of New York

100 Church Street

New York, NY 10007

(212) 788-0989

Lawrence S. Knipel, J.

Upon the foregoing papers, in this CPLR Article 78 proceeding, petitioner Jackie Kaht Fernandez seeks a judgment, (1) annulling the May 20, 2008 determination of respondent Board of Trustees of New York Fire Department Pension Fund, Subchapter 2 (Board of Trustees) which denied her application for accidental death benefits pursuant to [*2]Administrative Code of the City of New York § 13-353.1, and, (2) directing the Board of Trustees to grant petitioner's application, or, in the alternative, remanding the application to the Medical Board of the Fire Department Pension Fund, Subchapter 2 (1-B Medical Board) for a new hearing.

Petitioner is the widow of Lt. Cruz Fernandez, who was appointed to the New York City Fire Department on November 25, 1978, and became a member of the Fire Department Pension fund that day. On September 11, 2001, Lt. Cruz arrived at the World Trade Center (WTC) shortly after the plane hit the second tower and remained there for the next fifteen hours. He was then involved in supervising the retrieval of body parts and the removal of debris from the site until April 11, 2002. Lt. Fernandez retired from the fire department on November 2, 2002 and moved to Florida.

On July 14, 2006, while at the beach with his family, Lt. Fernandez slid off a boogie board and drowned in shallow water. An autopsy was performed in Broward County, Florida by Dr. Reinhard Motte, Assistant Medical Examiner, who determined that the cause of death was accidental drowning. In an e-mail dated September 3, 2006, petitioner inquired of Dr. Motte whether a heart attack or stroke had caused her husband to "drown" in shallow water. Dr. Motte responded in an e-mail the next day, stating that decedent "became submerged in water because of his heart" and that "clogged arteries caused his heart attack'" Thereafter, Dr. Motte submitted an amended autopsy report, dated July 17, 2007, in which he stated that the drowning was due to "Coronary Artery Disease and Mitral Valve Prolapse."[FN1]

In an application dated March 10. 2007, petitioner requested that the Board of Trustees award her a WTC Death Benefit pension in accordance with the Administrative Code of the City of New York § 13.553.1. That application was referred to the 1-B Medical Board, which recommended denial of said application in a memorandum dated June 28, 2007.In that memorandum, the 1-B Medical Board enumerated the evidence which it had reviewed in reaching that decision.[FN2] The court will summarize that evidence.[FN3] [*3]

Results of blood testing on Lt. Fernandez on May 8, 2006, some two months prior to his death, revealed that his total cholesterol was high at 255 ("reference range" - less than 200), his LDL cholesterol, normal at 47 (more than 45), and his Triglycerides, high at 225 (less than 155).

In his autopsy report, Dr. Motte describes the decedent's cardiovascular system, stating, inter alia,:

[t]he left main coronary artery and the left circumflex coronary artery are patent and have negligible luminal plaque.[FN4] The left anterior descending coronary artery and the right coronary artery have luminal plaque producing 40 to 70% stenosis [FN5] with calcifications and pipe stem rigidity.

In regard to the decedent's respiratory system, Dr. Motte noted that:

[a]nthracosis is abundant, follows the lymphatic channels and is broncocentric throughout....The hilar lymph nodes are anthracotic.[FN6]

Petitioner also submitted a report prepared by Dr. Joseph L. Dixon, a lipid biochemist, on March 26, 2007. Dr. Dixon notes that the decedent had received a medical examination, including chest x-rays, three months prior to his death, and that these tests did not indicate that his heart was enlarged. Moreover, states the doctor, decedent had performed well on a stress test. The doctor notes that Lt. Fernandez had been described as robust and in excellent health before his death and had, before 9/11, run in nine New York City marathons, indicating that he was in "excellent cardio-physical shape before working at the World Trade Center Site." Dr. Dixon adds, however, that in the weeks before his death, others described the decedent as having had severe allergy and acid reflux symptoms, as well as showing signs of labored breathing.

Dr. Dixon also notes that, while the autopsy report indicates that decedent had significant plaque in his left anterior descending and right coronary arteries, it did not conclude that decedent suffered a major heart attack due to blockage of these arteries. The doctor states that the autopsy report indicates that decedent had "myocardial ischemia"[FN7] but [*4]"since there was no mention of "neutrophil [FN8] or lymphocyte [FN9] infiltration, ... there was minimal long-term muscle damage at the time of his death."

Dr. Dixon also examined the microscopic slides of the decedent's lungs and found that, almost five years after working at the World Trade Center site, decedent had anthrocosis and considerable foreign material in his lungs. In that regard, the doctor notes that "it is now realized that workers at the 9/11 site breathed highly toxic substances for a long time after the attack itself, including dust, mercury, asbestos and PCBs."

According to Dr. Dixon:

[S]ince there were no signs of massive myocardial infarction, yet there was damage to his heart and his lungs were full of particulate matter, there is a high likelihood that Mr. Fernandez suffered a cardiac event that was related to his weakened heart - possibly due to chronic low oxygen from damaged lungs and toxic effects of materials that were caught in his lungs. Also, the toxins may have weakened Mr. Fernandez's immune system.

The doctor concludes that Lt. Fernandez's exposure to toxins at the World Trade Center site contributed to his death.

Also reviewed by the 1-B Medical Board was a report dated June 15, 2007, in which Dr. Michael J. Reale, a chemist who specializes in assessing the hazards of chemical exposure to workers and consumers, discusses the massive amounts of hazardous dust and smoke which the first responders to the World Trade Center disaster were exposed, noting that firefighters were among the most heavily exposed populations and that respiratory protection for these emergency workers was minimal.

Dr. Reale states that Lt. Fernandez's symptoms before his death, including difficulty in breathing and the presence of dust in his lungs, indicate that he was exposed to high levels of toxic materials at the World Trade Center site. He also notes that studies have shown that anthracosis can cause cardiac failure. Dr. Reale concludes that "the facts surrounding Mr. Fernandez's involvement in the immediate events after the World Trade Center disaster and his death are highly suggestive of a casual relationship."

Finally, in a letter dated July 24, 2007, Dr. Michael Chesner, states that he was Lt. Fernandez's physician for a number of years. Dr. Chesner reports that, in April, 2006, decedent had undergone an Exercise Nuclear Stress Test during which he exercised for nine minutes and thirty seconds. According to Dr. Chesner, imaging of decedent's heart showed no evidence of ischemia (loss of blood supply). The doctor concludes that based on these results, Lt. Fernandez's likelihood of suffering a heart attack due to ischemia one year after this test was "less than .. 1%" and that "an ischemic event was unlikely to have contributed to his death." [*5]

In its memorandum decision, the 1-B Medical Board did not discuss any of the aforementioned evidence, save for stating that it had reviewed it. In denying the application it stated:

It is the opinion of the 1-B Medical Board that there is insufficient evidence to grant the applicant the WTC Death Benefit, and therefore it is our recommendation that it be denied. We do not feel that the drowning appears to be secondary to the World Trade Center explosion.

In a letter dated January 30, 2008, the Board of Trustees notified the petitioner that it had reviewed her application at that day's meeting. It further indicated that the 1-B Medical Board's determination as to disability was binding on the Board of Trustees, therefore it had "noted" petitioner's case. The Board of Trustees clarified its decision at a meeting held on May 20, 2007, stating:

While the Board of Trustees does have the final say regarding causation in this case, [it does] not see any evidence sufficient to find that the retiree retired (sic - probably meant died) [FN10] from a qualifying condition or impairment of health listed in the World Trade Center accidental death benefit law and the application was, therefore, denied.

Petitioner now brings this Article 78 proceeding challenging that determination as arbitrary and capricious.

Pursuant to NYC Administrative Code § 13-351.1 (3), any retiree who participated in the World Trade Center rescue, recovery or cleanup for a minimum of 40 hours and:

dies from a qualifying condition or impairment of health, as defined by paragraph (c) of subdivision one of this section, that is determined by the applicable head of the retirement system or applicable medical board to have been caused by that retiree's [work at the World Trade Center], ... then unless the contrary be proven by competent evidence, such retiree shall be deemed to have died as a natural and proximate result of an accident sustained in the performance of duty and not as a result of willful negligence on his or her part.

Subdivision (1)(c) defines "Qualifying Conditions" as including the following:

i) Diseases of the upper respiratory tract and mucosae, including conditions such as conjunctivitis, rhinitis, sinusitis, pharyngitis, laryngitis, vocal cord disease, upper airway hyper-reactivity and tracheo-bronchitis, or a combination of such conditions;

(ii) Diseases of the lower respiratory tract, including but not limited to bronchitis, asthma, reactive airway dysfunction syndrome, and different types of pneumonitis, such as hypersensitivity, granulomatous, or eosinophilic; [*6]

(iii) Diseases of the gastroesophageal tract, including esophagitis and reflux disease, either acute or chronic, caused by exposure or aggravated by exposure;

(iv) Diseases of the psychological axis, including post-traumatic stress disorder, anxiety, depression, or any combination of such conditions;

(v) Diseases of the skin such as contact dermatitis or burns, either acute or chronic in nature, infectious, irritant, allergic, idiopatic or non-specific reactive in nature, caused by exposure or aggravated by exposure; or

(vi) New onset diseases resulting from exposure as such diseases occur in the future including cancer, chronic obstructive pulmonary disease, asbestos-related disease, heavy metal poisoning, musculoskeletal disease and chronic psychological disease;

It is petitioner's contention that the decedent did have a qualifying respiratory condition, namely the anthracosis in his lungs, which caused his fatal heart failure. It is respondents's claim that petitioner failed to meet her burden of establishing that decedent died from a qualifying condition, noting that neither drowning nor cardiac illnesses are qualifying conditions. According to respondent, petitioner's causation theory was properly rejected because she was unable to prove that there is a reasonable connection between that respiratory condition and his death. Alternatively, respondent argues, even if petitioner met her burden of establishing that connection, there was also contrary evidence as to the cause of death and the 1-B Medical Board's decision to reject petitioner's theory was supported by credible evidence and, thus, should not be disturbed.

A determination of the Medical Board of the New York City Fire Department Pension Fund in regard to the disability of its members is "conclusive if it is supported by some credible evidence and is not irrational" (Matter of Kuczinski v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 8 AD3d 283, 284 [2004]; see also Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 760 [1996]["In an article 78 proceeding challenging the disability determination, the Medical Board's finding will be sustained unless it lacks rational basis, or is arbitrary or capricious"]; Matter of Drew v New York City Employees' Retirement Sys., 305 AD2d 408, 409 [2003]["The Medical Board's determination is conclusive if it is supported by some credible evidence and is not irrational"].

Here, upon this record, it cannot be said that petitioner has met her initial burden of establishing that decedent died from a qualifying condition or impairment of health that was caused by his work at the World Trade Center. While the exertions of firefighters and other members of New York's Uniformed Services during the World Trade Center disaster can never be forgotten, the 1-B Medical Board's determination, that the decedent's drowning was [*7]not "secondary to the World Trade Center explosion" is credible. Far from irrational, the determination is based on a substantial body of medical evidence which forms a more than adequate basis for the determination of the Board of Trustees.

Accordingly, the petition is denied and the proceeding is dismissed.

The foregoing constitutes the decision, order and judgment of this court.

E N T E R,

J. S. C. Footnotes

Footnote 1: "Mitral valve prolapse" refers to a excessive backward movement of one or both mitral valves leaflets into the left atrium during left ventricular systole, often resulting in "mitral regurgitation", or the reflux of blood back through the valve (Stedman's Illustrated Medical Dictionary, p. 1573, 1668, 1686 [28th ed.]).

Footnote 2: The Board of Trustees twice remanded the petitioner's case to the 1-B Medical Board to consider additional evidence submitted by petitioner. After reviewing that evidence, the 1-B Medical Board , in memoranda dated August 23, 2007 and December 20, 2007, stated that its initial decision remained unchanged.

Footnote 3: While the court examined and considered all of the evidence submitted to the 1-B Medical Board in reaching its opinion, only the most pertinent and non duplicative evidence will be summarized herein.

Footnote 4: "Luminal" refers to the area inside the artery (Stedman's at 1120).

Footnote 5: "Coronary stenosis" is the narrowing of the coronary arteries (Stedman's at 1832).

Footnote 6: "Anthracosis", also known as "miner's lung" refers to the accumulation of smoke or coal dust in the lung (Stedman's at 101).

Footnote 7: "Myocardial ischemia" is defined as inadequate circulation of blood to the heart muscle, usually as a result of coronary artery disease (Stedman's at 1001).

Footnote 8: A "neutrophil" is a white blood cell found in the bloodstream (Stedman's at 1317).

Footnote 9: A "lymphocyte is a white blood cell found in the lymphatic system (Stedman's at 1133).

Footnote 10: It appears that either the Board member reading the decision into the record misspoke or that there was a transcription error.