Matter of Rosenthal v Kelly

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Matter of Rosenthal v Kelly 2012 NY Slip Op 33053(U) November 20, 2012 Supreme Court, New York County Docket Number: 104845/11 Judge: Lucy Billings 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. [* 1] SCANNED ON 1212612012 PRESENT: * u , t PART 44 Justice a MOTION DATE MOTION SEQ. NO. The following papers, nwrnbered 1 to bt 2, on this&top'y w were read Notice of MotionlOrder to Show Cause -Affidavits &tMd - Exhibits Replying Affidavits m h r* ' IW 5 ) . INO($). IW s ) . Answering Affidavits - Exhibits ~ I 2 . Upon the foregoing papers, it is ordered UNFILED JUDGMENT This judgment has not been entered by the County Clerk and notice of entry cannot be served based hereon. To obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk's Desk (Room I T , J.S.C. LUCY BBLLiNi:,,. 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... 3. CHECK IF APPROPRIATE: WIOTIOPI IS: ................................................ I$CASE DEPOSED RANTED SETTLE ORDER 1 DO MOT POST ? DENIED NOdl%&L DISPOSITION 0GRANTED INPART OTHER L SUBMIT ORDER 1 u FIDUCIARYAPPOINTMENT REFERENCE [* 2] I SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 In the Matter of the Application of JILL ROSENTHAL, Petit ioner Index No. 104845/2011 DECISION AND ORDER For a Judgment under Article 78 of the Civil Practice Law and Rules - against - RAYMOND KELLY, as Police Commissioner of the City of New York, and as Chairman of the Board of Trustees of the Police Pension Fund, Article 11, BOARD OF TRUSTEES of the P o l i c e Pension Fund, Article 11, NEW YORK CITY POLICE DEPARTMENT, and CITY OF NEW YORK, Respondents LUCY BILLINGS, J . S . C . I. : BACKGROUND Petitioner, a former New York City Police Officer, challenges the Police Pension Fund s denial of disability benefits for disabling somatization symptoms stemming from an injury in service in 2005. She injured her right hand, wrist, and shoulder and her neck March 15, 2005, while arresting a suspect; injured them again February 21, 2007, falling down stairs; and aggravated those injuries January 1, 2008, in an offduty motor vehicle collision. Petitioner applied f o r accident disability retirement (ADR) May 14, 2007. Respondent Kelly applied for petitioner s ordinary disability retirement. Respondents medical board considered surgical reports and rosenthl.137 1 [* 3] treatment notes from petitioner's treating physician and physical therapist and reports from respondents' examining physician. The medical board examined petitioner July 6, 2007, and February 1, 2008, and disapproved disability based on the lack of findings regarding an orthopedic impairment. The medical board reviewed petitioner's application again December 5, 2008, after a remand f r o m the Board of Trustees. Citing petitioner's ongoing pain, the medical board concluded t h a t petitioner suffered from a psychological somatization disorder related to multiple line of duty injuries beginning March 15, 2005, and could no longer perform a police officer's duties. The medical board unanimously recommended approval of ADR and disapproval of ordinary disability retirement. The Board of Trustees remanded petitioner's application again to the medical board to clarify whether the March 2005 injury caused physical disability. On April 10, 2009, the medical board found that the injuries March 15, 2005, did not cause physical disability, but triggered the pain symptoms that petitioner's subsequent injuries repeatedly aggravated, resulting in the somatization disorder, and recommended approval of ADR. On September 18, 2009, upon a remand for consideration of new evidence, the medical board found with reasonable medical certainty that petitioner met the American Psychiatric Association's criteria for somatization disorder. At proceedings December 9, 2009, the Board of Trustees found no nexus between the injuries petitioner first sustained and the somatization rosenthl.137 2 [* 4] \ disorder, found her symptoms entirely subjective, and denied ADR by a 6-6 vote. Petitioner commenced a prior proceeding in this court pursuant to C.P.L.R. Article 78, in which the court (Gische, J.) found the Board of Trustees' denial of ADR based on the lack of a causal relation between the line of duty injury and somatization disorder irrational. The court annulled respondents' determination as arbitrary and contrary to law and remanded the proceeding to respondents. On February 9, 2011, the Board of Trustees acknowledged that petitioner's somatization was disabling, but determined that petitioner's delay i n treatment f o r her March 2005 injuries until August 2005 and amendment of her line of duty injury report to include neck, elbow, and wrist injuries demonstrated that the March 2005 right hand injury did not cause her somatization disorder. The Board of Trustees also cited petitioner's 21 days of medical leave, eight before March 15, 2 0 0 5 , and 1 4 unrelated to line of duty injuries, which could have caused her somatic complaints. Upon another 6-6 vote, the Board of Trustees again granted ordinary disability retirement and denied ADR. In this second proceeding pursuant to C.P.L.R. Article 78, petitioner seeks to annul respondents' last determination, February 9, 2011, denying her ADR, as arbitrary and require respondents to grant her ADR or, alternatively, review h e r application again or grant h e r a hearing. rosenthl.l37 C.P.L.R. § 7803(3); 3 N.Y.C. Admin. Code § 13-252. [* 5] 11. APPLICABLE STANDARDS In reviewing respondents' determination regarding disability, the court must defer to respondents' determination of causation and uphold it if rationally based and not arbitrary, an abuse of discretion, or contrary to law. Borenstein v. New York City Employees' Retirement Maldonado v. Kelly, 86 A.D.3d v. Kelly, 84 A.D.3d 667 88 N.Y.2d 756, 760 (1996); Sys., 518, 519 (1st Dep't 2011); Claudio (1st Dep't 2011); Jefferson v. Kelly, 51 A.D.3d 536 (1st Dep't 2008). See Linden Airport Mqt. Corp. v . New York City Economic Dev. Corp., 71 A.D.3d 501, 502 (1st Dep't 2010); Valentin v. New York City Police Pension Fund, 16 A.D.3d 145 (1st Dep't 2005); City of New York v. O'Connor, 9 A.D.3d 328 (1st Dep't 2004). Physical or mental incapacity to perform city service qualifies a police officer for ordinary disability retirement. N.Y.C. Admin. Code § 13-251. If that incapacity is Ita natural and proximate result of an accidental injury received in such city-service while a member," the police officer is eligible for ADR. N.Y.C. Admin, Code § 13-252. See Dement.v. Kelly, 97 A.D.3d 223, 229 (1st Dep't 2012). The medical board's medical examination must establish disability. N.Y.C. Admin. Code §§ 13-251, 1 3 - 2 5 2 . Thus the medical board's fact finding process requires (1) determining whether the applicant is physically or mentally incapable of performing city work and ( 2 ) whether an "accidental" injury while in service proximately caused the applicant's disability to perform that w o r k . rosenthl.137 Meyer v. Board of Trustees of N.Y. City Fire 4 [* 6] Dept., Art. 1-B Pension Fund, 90 N.Y.2d 139, 144 (1997); Borenstein v. New York City Employees' Retirement at 760. Sys., 88 N.Y.2d The medical board's determination must be supported by substantial evidence, which must be credible, relevant evidence reasonably adequate to support a f a c t or conclusion. Jenninqs v. New York State Off. of Mental Health, 90 N.Y.2d 227, 239 (1997); Borenstein v. New York City Employees' Retirement SYS., 88 N.Y.2d at 760. See McCabe v. Hevesi, 38 A.D.3d 1035, 1036 (3d Dep't 2007). Credible evidence is evidence from a reliable source, which must reasonably tend to support the fact or conclusion for which the evidence is offered, as long as it is neither conjecture nor simply a conclusion itself. Mever v. Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 N.Y.2d at 147; Cusick v. Kerik, 305 A.D.2d 247, 248 (1st Dep't 2003). 111. RESPONDENTS' IRRATIONAL AND UNLAWFUL BASIS FOR DENYING PETITIONER ADR All evidence of petitioner's disability from somatization due to her injuries March 15, 2005, derives from respondents' medical board, which on September 18, 2009, found that petitioner met the criteria for a somatization disorder. Specifically, she exhibited a history of physical complaints beginning at 30 years of age, extending over several years, and resulting in treatment or in impairment of social, occupational, or other important functioning, and four pain symptoms: two gastrointestinal symptoms, one sexual symptom, and one pseudoneurological symptom. The medical board found petitioner experienced pain in her back, rosenthl.137 5 [* 7] neck, right shoulder, and right wrist; severe gastrointestinal symptoms of bloating, intolerance of dairy foods, nausea, vomiting, and diarrhea; long term sexual indifference; and a neurogenic bladder. None of these symptoms was attributable to a physical abnormality. The medical board's conclusions after examining petitioner constitute credible evidence. Keiss v. Kelly, 75 A . D . 3 d 416, 417 (1st Dep't 2010); Khurana v. Kelly, 73 A.D.3d 497 (1st Dep't 2010); Goffred v, Kelly, 13 A.D.3d 72 (1st Dep't 2004). While the Board of Trustees found petitioner's March 2005 right hand injury was treated, allowing her to return to work, that treatment and return to work are consistent with a somatization disorder, particularly when considered with petitioner's numerous subsequent absences for several days to a week and the symptoms' spread to her right a r m and her neck. Since somatization is based on the cumulative effect of injuries, actual or perceived, to the point of becoming disabling, the gap between petitioner's March 2005 injury and her treatment in August 2005 is not a rational basis f o r concluding that the Somatization disorder did not arise from her March 2005 injury. Petitioner's perception of her injuries as physical, instead of psychological, and her consequent failure to seek psychiatric care reasonably explain the lack of an earlier diagnosis of somatization, Instead, petitioner believed she was suffering from a disabling orthopedic impairment and therefore sought treatment for an orthopedic condition, which was not in fact disabling. rosenthl.137 6 [* 8] -. The absence of any medical history of the disabling Somatization before March 15, 2005, moreover, is a relevant, albeit not dispositive, factor in determining causation. Meyer v. Board of Trustees of N.Y. City Fire Dept., Art. I-B Pension Fund, 90 N.Y.2d at 146; Tobin v. Steisel, 64 N.Y.2d 254, 257, 259 (1985). Petitioner's amendment of h e r disability retirement application to include additional injuries is likewise consistent with a somatization disorder. In short, the Board of Trustees denied ADR to petitioner based on a mere conclusion as to lack of causation. Therefore the denial is unsupported by credible evidence, Macri v. Kellv, 92 A.D.3d 53, 61 (1st Dep't 2011); f a i l s to set forth any reasons f o r t h e conclusion, see Goodacre v . Kelly, 96 A.D.3d 625, 626 (1st Dep't 2012); Keiss v. Kelly, 75 A . D . 3 d at 417; and lacks a rational basis. Dement v. Kelly, 97 A.D.3d at 230. See Meyer v . Board of Trustees of N.Y. City Fire Dept., Art. 1- ¬3Pension Fund, 90 N.Y.2d at 147; Asnelli v. Kellv, 96 A.D.3d 471, 472 (1st Dep't 2012). N o r is the Board of Trustees' sheer speculation, that petitioner's medical leave could have caused h e r somatization disorder, a basis to reject h e r application for ADR. Baranowski v. Kelly, 95 A.D.3d 746 (1st Dep't 2012); Cusick v. Kerik, 305 A.D.2d at 253. See Maldonado v. Kelly, 86 A.D.3d at 519. The medical leave equally could be viewed as supporting petitioner's somatization. rosenthl.137 7 [* 9] IV. DISPOSITION The Board of Trustees adopt their determinations by a simple majority of votes. N.Y.C. Admin. Code § 216(b); Caruso v. New York City Police Dept. Pension Funds, Arts. 1 573 ( 1 9 8 8 ) . & 2, 72 N.y.2d 5 6 8 , A tie vote on ADR claims constitutes a denial of the ADR claim and therefore a determination of only ordinary disability retirement. Caruso v. New York City Police Dept. Pension Funds, Arts. 1 & 2, 72 N.Y.2d at 573; Canfora v . Board of Trustees of Police Pension Fund of Police Dept. of City of N * y . Art. PI, 60 N.Y.2d 347, 351-52 (1983); Kenney v . New York City Tr. Auth., 275 A.D.2d 639, 640 (1st Dep't 2000). Since a denial of ADR by a deadlocked vote does not produce any more of a factual determination to be reviewed than a majority vote that simply accepts the medical board's finding, the deadlock does not provide a ground for the court to act as the tiebreaker and reverse the ADR denial. Meyer v. Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 N.Y.2d at 144-45; Canfora v. Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. 11, 60 N.Y.2d at 352; Maldonado v. Kelly, 86 A . D . 3 d at 518 n.2. The court may, however, reverse respondents' denial of ADR if the evidence demonstrates that petitioner's injury on duty caused her disability as a matter of law. Dement v. Kelly, 97 A.D.3d at 232. See Mever v. Board of Trustees of N.Y. Citv Fire DePt., Art. 1-B Pension Fund, 90 N.Y.2d at 145; Canfora v. Board of Trustees of Police Pension Fund of Police Dept. of City of rosenthl.137 8 [* 10] Art. TI, 60 N . Y . 2 . d N.Y., a t 3 5 2 ; Aqnelli v. Kelly, 96 A.D.3d at 472. Although there is evidence in the record that does not address petitioner's somatization disorder, no evidence contradicts the somatization diagnosis o r that it arose from her injury March 15, 2005. On this record, the credible evidence establishes that petitioner's line of duty injuries March 15, 2005, caused h e r diagnosed somatization disorder, which disables her from performing police work, and that respondents' denial of her application for accident disability retirement is not supported by a rational basis or c r e d i b l e evidence. (4). C.P.L,R. § 7803(3) and Therefore the court remands this proceeding to respondents to award petitioner accident disability retirement. C.P.L.R. 7806; Dement v . K e l l y , 97 A . D . 3 d at 232-33; § Baranowski v. Kelly, 95 A.D.3d 746; Cusick v . K e r i k , 3 0 5 A.D.2d a t 247, 253. This decision constitutes t h e court's order and judgment granting the petit ion. DATED: N o v e m b e r 20, 2012 L q f M - s LUCY BILLINGS, J.S.C. rosenthl.137 9

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