Matter of Trotta v Kelly

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Matter of Trotta v Kelly 2009 NY Slip Op 33272(U) January 26, 2009 Supreme Court, New York County Docket Number: 112218-08 Judge: James A. Yates Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 21612009 [* 1] ,>i- i SUPREME COURT OF THE STATE OF NEW YORK PRESENT: Hon. JAMES A. YATES Justice In the Matter of the Application of JOSEPH TROTTA, - NEW YORK COUNTY PART 60Y Index No.: 112218-08 Motion Seq.: 001 Petitioner, ORDER and -against- JUDOMENT RAYMOND KELLY, as the Police Commissloner 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, - d Reapondsnta. The following papers, numbered 1 to Notice of MotIonlOrder t o Show Cause - Affidavits Answering Affidavits I I - Exhibits Replying Affidavits Cross-Motion: Yes - Exhiblta... 1 E! No Pursuant to CPLR article 78, Petitioner seeks to annul Respondent's May 14, 2008 determination denying his application for accidental dlsability retirement (ADR) due to a heart condition. The Court is denying the petition because the [* 2] Medical Board properly considered the credible evldence before it when deciding that the Heart Bill presumption In General Municipal Law § 207-kdid not apply. (See attached Decision and Order.) fl [* 3] SUPREME COURT COUNTY OF NEW OF THE STATE OF m W YORK YORK: PART 50Y In the Matter of the Application of t JOSEPH TROTTA, Petitioner, t I For a Judgment under Article 78 of the New York Civil Practice Law and Rules t t t -against- t : Decision and Order Ind. No. 112218/08 t RAYMOND KELLY, as the Police Commissioner of the City of New York, and as Chairman of the Board of TrusteeB of the Police Pension Fund, Article 11, THE BOARD OF TRUSTEES of the Police Pension Fund, Article 11, NEW YORK CITY POLICE DEPARTMENT and THE CITY OF NEW YORK, Respondents. t t 1 \ t t t ,rs t t ?QQg FF 9 t t t -----------------------------------x Hon. James A . Y a t e a , J. In thiB CPLR article 78 proceeding, Petitioner seeks to annul Reapondent's May 14, 2008 determination denying his application f o r accidental disability retirement (ADR) due to a heart condition. Petitioner argues that the determination was arbitrary and capricious because it did not apply the presumption of General Municipal Law 5 207-k, a l s o known as the "Heart Bill." Background Joseph Trotta was a uniformed police officer of the New York City Police Department (NYPD) since June 7, 1968. On April 17, 2000, Mr. Trotta submitted an application for ADR pursuant to Administrative Code 8 13-252 and General Municipal Law § 207-k. Police Commissioner Kelly submitted an application for Ordinary Disability Retirement (ODR) on Mr. Trotta'B behalf. In hi@ ADR 1 [* 4] application, Mr. Trotta stated that he \ \ s u f f e r [ s ] from a h e a r t condition" ( s e e Resp. Verified A n s . , Nov. 12, 2008, exhibit 1). Mr. Trotta retired from the NYPD on May 6, 2000 with a Bernice retirement. On September 22, 2000, the Medical Board Police Pension Fund, Article I1 (Medical Board) examined Mr. Trotta and concluded that "although [Mr. Trotta] has complaints; that are consistent with anginal, the objective evidence . . . does not definitively support the diagnosis. He has a strong hiatory of smoking and chronic obatruction pulmonary diseaae may in part be contributory to [his] complaint of dyspnea'. " (See Reap. Verified A n a . , Nov. 12, 2008, exhibit 2 . ) Thus, the Medical Board denied the ADR and ODR applications.3 The Board of Trustees of the N e w York City Police Pension Fund (Board of Trustees) remanded the matter back to the Medical Board for further consideration on January 16, 2001. Accordingly, on June 16, 2006, the Medical Board reevaluated Mr. Trotta's case. It found that the new evidence' provided no I Angina is "[a] condition in which the heart does not get enough oxygen, reaulting in chest pain and a feeling of suffocation" (Gloasary, http://www.ehealthmd.com/library/heartfailure/HF glossary.htm1 [accessed Jan. 23, 20091). ' Dyspnea is a term used to describe difficulty breathing or a sensation of not getting enough air (see B r e a t h i n g D i f f i c u l t y , MedlinePlua: A Service of the U.S. National Library of Medicine, http://www.nlh.nih.gov/medlineplus/ency/article/ 003075.htrn [accessed Jan. 2 2 , 2 0 0 9 1 ) . 3 The Medical Board had conducted a complete review of Mr. Trotta's medical records, history, complaints, clinical findings and physical examination (see Resp. Verified A n s . , Nov. 12, 2008, exhibit 2 ) . 4 The new medical evidence consisted of five typed office notes. The first note waa dated January 2 , 2001 and stated that M r . Trotta "continues to have intermittent episodes of cheat discomfort, but i B clinically stable at this time" (id. at exhibit 12). The second note, dated A p r i l 20, 2001, stated that 'there was no intrinsic lung disease, but baaed on patient's symptoms, [Dr. Seymour Huberfeld] feels that coronary angiography is 2 [* 5] objective evidence of myocardial ischemia5, and therefore, it unanimously reaffirmed its September 22, 2 0 0 0 decision denying the ADR and ODR applications. On November 8 , 2006, the Board of Trustees considered Mr. Trotta's case f o r a second time, and remanded it back to the Medical Board on November 13, 2006. The Medical Board reevaluated Mr. Trotta's case on November 9, 2 0 0 7 , reviewed appropriate . . . [After discussion, the patient] will conaider the alternatives." (Id.) The third note, dated April 23, 2001, considered Mr. Trotta's condition as stable. Mr. Trottala blood pressure was measured at 124/80. The physical examination revealed no evidence of bruits, thyromegaly, or adenopathy in the neck. Mr. Trotta's chest was clear to auscultation and percussion, and his heart examination showed no murmurs, r u b s , gallops, heaves or thrills ("an abnormal tremor accompanying a vascular or cardiac murmur f e l t on palpation" (see Taber's Medical Cyclopedic Dictionary [ 2 0 0 2 ] ) ) . Examination of Mr. Trotta's abdomen was normal, and examination of his extremities revealed no clubbing (abnormal enlargement of the fingertips, usually aesociated with cyanotic heart disease (see H e a l t h G u i d e , New York TlrneB, http://health.nytimes.com/health/guides/diaease/cyanotic-hea~t-di sease/overview.html [accessed Jan. 23, ZOOS])), cyanosis (bluish discoloration of extremities commonly observed in patients with reduced cardiac output (see Taber'a, s u p r a ) ) , or edema, and his pulses were at 2 + . (Resp. Verified h e . , Nov. 12, 2008, exhibit 12.) The fourth note, dated March 14, 2001, describe8 an exercise stress test with thallium indicating normal myocardial perfusion (blood flow to t h e heart's wallB and muscles ( s e e Myocardial Perfusion, http://www.cardio.com/sitel36.php [Cardiovascular Inst of South, accessed Jan. 23, 2 0 0 9 1 ) ) , and no evidence of obstructive coronary artery diaease. ' gated SPECT image wae A performed at rest and revealed normal left ventricular function." (ReBp. Verified A n a . , Nov. 12, 2008, exhibit 12.) Finally, the fifth note, dated June 14, 2006, states that M r . Trotta has " [n]o significant past medical history" ( I d . . 5 Ischemia is a decreased supply of oxygenated blood to a body organ or part, often marked by pain and organ dysfunction, as in iBchemic heart disease (see Taber's, s u p r a ) . 3 [* 6] additional evidence6, and unanimously reaffirmed its denial of the ADR and ODR applications. On May 14, 2008, the Board of Trustees considered Mr. Trotta's case for the third time and voted to adopt the Medical Board's recommendation. Thereafter, on September 8, 2008, Mr. Trotta commenced this Article 78 proceeding, challenging only the ADR denial (see Pet. Notice of Petition, Sept. 8, 2008, at 1-2). The Court, therefore, is only addressing whether Respondent properly denied Petitioner's ADR application. Dincumion Generally, the applicant f o r ADR benefits has the burden of establishing both that he is disabled and that his disability reaulted from an accidental injury received in city service (see e . g . Matter of Danyi v B o a r d of Trustees of N . Y . City Employees' Retirement Sys., 176 AD2d 451, 451 [ l s t Dept 19911). The Heart Bill, however, entitles a police officer disabled due to heart disease to an evidentiary presumption that the disabling heart condition resulted from an accidental injury, and that the injury was received while performing official duties ( e e e Uniformed Firefighters A s s n . , Local 94, IAFF, AFL-CIO v Beekman, 5 2 NY2d 463, 472-473 [1981]). But, the Heart Bill presumption appliea only if it is demonstrated that a heart condition caused the disabling condition in the f i r s t instance (see Appleby v Herkommer, 165 AD2d 727, 728 [lst Dept 19901). The award of ADR benefits is a two-step process. First, the Medical Board "must certify whether the applicant is actually 'physically or mentally incapacitated f o r the performance of city-service Second, if the Medical Board finds the applicant disabled, it must recommend whether the diaability was a 'natural and proximate result of an accidental injury." (Matter of Borenstein v N . Y . C i t y Employeee' Retirement Sys., 88 NY2d 756, 760-761 [1996], citing NYC Administrative Code §13-168 [a]. ) The I /I 6 The new evidence was a nuclear stress teat performed on October 13, 2 0 0 6 , and interpreted on October 16, 2006. The test revealed that: (1) Mr. Trotta achieved the maximum predicted heart rate for his age, (2) his cardiogram was essentially negative, and (3) although Mr. Trotta may have mild inferior ischemia, his left ventricle functioned normally. (See Reap. Verified A n a . , Nov. 12, 2008, exhibit 16.) On November 9, 2007, the Medical Board also interviewed Mr, Trotta and conducted another physical examination. Although Mr. Trotta complained of chest pains, "[elxamination of the heart was negative." (Id. at exhibit 15 1 5-6.) 4 [* 7] Board of Trustees undertakes the second atep only if the Medical Board finds the applicant dieabled. Since the Medical Board did not find Mr. Trotta disabled here, the Board of Trustees did not reach the second step. Thus, the iasue of caueality to an accidental injury received in city service is not an iesue before thiB Court. The threshold question of whether an applicant has the i n j u r y claimed, and whether that injury incapacitates the applicant from city service performance, is solely for the Medical Board, and its determination is binding on the Board of Trustee0 (see Borenstein, 8 8 W2d at 7 6 0 ("If the Medical Board certifies that t h e applicant is not medically diaabled for duty, the Board of Trustees must accept that determination and deny applicant's claim")). 't is well settled that t h e courts cannot I weigh the medical evidence or substitute their own judgment for that of t h e Medical Board" (Matter of Santoro v Board of T r u s t e e s of N.Y. City Fire Dept. Art.1-B Pension F u n d , 217 AD2d 660, 660 [2d Dept 1 9 9 5 1 ) . "The Medical Board's determination is conclusive if it is supported by any credible evidence and is not irrational" (Matter of I n g u a n t a v B d . of T r u s t e e s of N. Y . City Fire Dept. A r t . l - B Pension Fund, 302 AD2d 527, 527 [2d Dept 20031; see a l ~ Matter o of Meyer v Board of T r u s t e e s of N. Y. City Fire Dept. Art. 3 - B Pension Fund, 9 0 NY2d 139, 145 [19971; B o r e n s t e h , 8 8 NY2d at 7 6 0 ("In an article 7 8 proceeding challenging the disability determination, the Medical Board's finding will be sustained unless it lacks a rational basis, or is arbitrary or capricious"); Matter of Schwarzrock v Bd. of TrUBtee8 of N . Y . C i t y Fire Dept., Art. 1 - B Pension Fund, 238 aD2d 596, 597 [2d Dept 1 9 9 7 1 ) . Courts have held that the Medical Board's review of an applicant's submitted medical recorda and an examination of applicant constitute credible evidence, and that the Medical Board'e determination of disability was, therefore, neither arbitrary nor capricioue (Bee e . g . Borenstein, 88 NY2d at 760761; see a l s o Matter of D r e w v N . Y . City Employee's Retirement Sys., 3 0 5 AD2d 408, 409 [2d Dept 20031 ; I n g u a n t a , 302 AD2d a t 527). H e r e , the Medical Board performed two physical examinations of Mr. Trotta. In addition, the record demonstrates that t h e Medical Board considered all the medical evidence, including that submitted by Mr. Trotta revealing overall normal resulta.7 7 Dr. Stanley Shepko, Mr. Trotta's own physician, opined that although there was some borderline enlargement of t h e left 5 [* 8] Although t h e medical conclusions of Mr. Trotta's treating physicians differed somewhat from those of the Medical Board, "the resolution of such conflictB is the sole province of the Medical Board" ( D r e w , 305 AD2d at 409; Bee Borenstein, 88 m 2 d at 761; Tobin, 64 NY2d at 258-259; Matter of Cassidy v Ward, 169 AD2d 482, 483 [lst Dept 19911). Baaed upon the credible evidence before the Medical Board, its determination was not irrational (see Meyer, 90 NY2d at 149-150; Borenstein, 88 NY2d at 760; Matter of Barnett v E d . of Trustees of N. Y. C i t y F i r e Dept., Art. 1 - B PenBion Fund, 264 A.D.2d 840, 841 [2d Dept 19991). Accordingly, the Board of Trustees properly denied Mr. Trottala application for accident disability retirement. This constitutes the Decision and Order of the Cour Dated: January 26, 2009 - 1 -"-I I / ventricle ( b u t see id. at exhibit 1 4 a n d 1 5 7 4 (noting that nuclear stress test performed on Oct.'-16,2008 found normal 1 ft ventricle size and thickness)), Mr. Trotta's cardiac contractility was within normal limits. Further, Dr. Shepko opined that the Doppler examination revealed no significant stenosis (abnormal condition characterized by constriction or narrowing of a passage or orifice (see Taber's, s u p r a ) ) , or insufficiency of Mr. Trotta'a four heart valves. (See Resp. Verified A n s . , Nov. 12, 2008, exhibit 4 and 2 7 3.) T h e Medical Board did not give as much weight to t w o of Mr. Trotta'a other personal physicians, Dr. Morton W. Levine and Dr. Grigory Klinger. In a report dated May 9, 2009, Dr. Levine essentially relies on Mr. Trotta's subjective complaints but fails to provide any objective medical evidence of heart disability ( s e e id. at exhibit 5). Similarly, Dr. Klinger reliea on subjective complaints, noting that Mr. Trotta's history continues to be "typical f o r angina, despite h i s negative workup to date" (id. at exhibit 12 [emphaaia added]). 6

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