Matter of Krill v Kelly
Annotate this CaseDecided on August 7, 2006
Supreme Court, New York County
In the Matter of the Application of Helen Ann Krill, 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.
4247/03
Lewis Bart Stone, J.
Petitioner Helen Ann Krill ("Krill"), a former New York City Police Department ("NYPD") officer, commenced this proceeding pursuant to Civil Practice Laws and Rules ("CPLR") Article 78 to review the determination of respondent Board of Trustees of the Police Pension Fund ("Trustees") which affirmed, by a 6-6 vote, the recommendation of Medical Board of the Police Pension Fund, ("Board") to deny Krill's application for Accidental Disability Retirement ("ADR") and granted the application of respondent Police Commissioner of the City of New York ("Commissioner") that Krill be retired with Ordinary Disability Retirement ("ODR").
Krill alleges the Board's decision was arbitrary and capricious decision and in violation of law and seeks to annul the Board's decision and an order directing the Board to retire her with an ADR pension, or alternatively to direct a trial on the merits or remand the matter to the Trustees for reconsideration.
FINDINGS OF FACT
Krill was a NYPD police officer from January 3, 1983 until she retired. She [*2]was a member of the Police Pension Fund at the time of her retirement and was entitled to a pension for her services. The dispute here relates to what type of pension Krill was entitled to as the difference between what she seeks (ADR) and what the Trustees awarded (ODR) is the difference between half pay and three quarters pay.
Krill's application for ADR status claimed an injury to her right knee which occurred on September 18, 2001 as a disabling line of duty injury. On such date she fell while walking to escort three bus loads of food to lower Manhattan in the wake of the World Trade Center disaster and was injured . An application for ODR was also submitted on her behalf at that time at the direction of the Commissioner who believed that she was disabled in fact, but not because of such injury. The Board reviewed both applications on four different occasions conducting its own examinations and reviewing reports submitted by Krill from her own treating physicians. The Board initially denied both applications finding that Krill was not disabled, but subsequently reversed itself and unanimously recommended ODR but again denied Krill's request for ADR. The Board's final recommendation was affirmed by a 6-6 tie vote of the Trustees. Thereafter, Krill commenced this proceeding to review such determination.
Krill claimed that she twisted her knee and fell when she caught her foot between two sidewalk cobblestones but she also stated that she was walking on a cobblestone sidewalk without anything in her hands when "somehow her leg came out from under her." Another police officer, Ralph Gorsner, said he observed her "unexpectedly trip on an uneven cobblestone" yet also said "it was extremely difficult for P.O. Krill to see where flat pavement ended and the uneven and loose cobblestones began." After the fall, she was taken to NYU Downtown Hospital where she was treated and released.
On November 15, 2002, the Board initially reviewed Krill's file including medical reports and x-rays from the emergency room of NYU Downtown Hospital as well as reports from Dr. Toledano, her own orthopedic surgeon. Toledano reported that x-rays of Krill's knee revealed no evidence of any fracture or dislocation and that she suffered from "a sprain of the right knee of a mild degree without evidence of any functional deficit." The Board also reviewed a report by Dr. Axelrod, the police surgeon, who advised Krill to lose weight [FN1] but found no "effusion" or instability. The Board also physically examined Krill and concluded that she was "morbidly obese and severely deconditioned" and found signs of clinical depression. Following this review and examination, the Board determined that there were "no significant [*3]physical findings that would preclude her from performing the duties of a police officer" and recommended disapproval of both the ADR and ODR applications.
Krill appealed to the Trustees who remanded her case based upon "new evidence"which included a report from Dr. Zolan, an orthopedic surgeon, dated April 2, 2003, who reported "postoperative post-traumatic arthropathy of the knee with restriction of movement, pain and an altered gait pattern." Zolan felt that Krill's condition was permanent and would prevent her from performing her duties as a police officer. The Board reviewed Zolan's report on October 8, 2004 and also reviewed a report from Dr. Goldstein, an orthopedic surgeon, who also found Krill to have suffered a permanent injury and stated that Krill had "right knee osteoarthritis and tendonitis" and in a progress note found that she had right knee osteoarthritis and synovitis. The Board was aware by that time that Krill also had undergone arthroscopic surgery of her right knee, including "partial medial and lateral meniscectomy and a chondroplasty," and also reviewed her MRI and x-ray reports which revealed "a complex tear of the posterior horn of the medial meniscus, a moderate sized joint effusion, and tricompartmental degenerative arthritis." At the Board's interview and examination of Krill on October 8, 2004, she complained of constant pain and sensitivity in her knee. The examination found a "slightly antalgic gait" on the right and that Krill was able to squat only 40 degrees. The examination also revealed a number of restrictions on rotation and movement in Krill's right hip and thigh. The Board, concluding that Krill's physical examination showed a "significant flexion contracture," unanimously recommended deferring their decision pending receipt of further evidence to evaluate Krill's hips and the degree of osteoarthritis present in her knees.
The Board conducted a third review of Krill's application on November 12, 2004, reviewing both x-ray film and x-ray reports taken on October 11, 2004. After this third review, the Board found Krill to be disabled but stated that their findings were consistent with "a long-standing degenerative process" and that her disability was "ordinary in nature and not secondary to a line of duty injury." Based on these findings, the Board unanimously recommended approval of the Commissioner's application for ODR and disapproval of Krill's application for ADR. Krill appealed this recommendation to the Trustees.
On March 9, 2005 the Trustees again remanded Krill's case to the Medical Board to reevaluate her application for ADR in light of new evidence, an MRI conducted on January 24, 2005 which revealed "tricompartment osteoarthritis with spurring of a mild to moderate nature, a tear of the posterior horn and body of the medial meniscus...as well as pre-patella bursitis and a small loose body in the [*4]posterior medial compartment" and letters from Drs. Springer and Schwartz. Springer believed Krill would require an additional arthroscopy of the right knee and that she might one day require joint replacement. Schwartz also recommended an arthroscopic procedure and stated that the recurrent tearing of Krill's meniscus was related to the injury she sustained on September 18, 2001. The Board reviewed this new evidence on June 24, 2005 and interviewed and again physically examined Krill on June 24, 2005 during which the Board found "persistent symptoms of right knee pain." The Board also questioned Krill at length about the September 18, 2001 incident. The Board noted that Krill "was not in the process of pursuing anyone or performing anything other than the incidental activity of walking down the street." The Board, after finding that this incident was neither an "accident" nor the cause of the osteoarthritis in Krill's knee, reaffirmed its determination that Krill was disabled and also noted that a number of her symptoms were reflective of a chronic degenerative process of the knee, finding that Krill had shown symptoms consistent with a progressive degenerative process of the knee unrelated to her September 18, 2001 injury. Based on this review, the Board unanimously reaffirmed its earlier decision that Krill was entitled only ODR and not ADR.
This reaffirmed decision was submitted to the Trustees, which by a 6-6 vote on November 9, 2005, affirmed the recommendations of the Board. It is such determination which Krill seeks to review in this Petition.
CONCLUSIONS OF LAW
The qualifications for ADR and ODR for police officers are set forth in New York City Administrative Code § 13-252 and 13-251, respectively. The statutory scheme entitles a police officer to ADR if she is "physically or mentally incapacitated for the performance of city service as a natural and proximate result of an accidental injury received in such city-service...and that such disability was not the result of willful negligence...." Code § 13-252. For an officer to become entitled to ADR, the Trustees must determine not only that she was unfit for duty and was injured in a line-of-duty accident, but also that such accident proximately caused the disability. Drayson v. Board, 37 AD2d 378, 380 (1st Dept. 1971). Although the Trustees make this determination, they rely on the Medical Board's recommendations to determine all medical issues.
In the usual Article 78 proceeding, the review of the Board's decision is limited to whether their decision was supported by "some credible evidence" and was not arbitrary and capricious. Drayson, supra at 380. See also Borenstein v. New York [*5]City Employees' Retirement System, 88 NY2d 756, 760 (1996).[FN2] This standard is set as courts cannot "weigh the medical evidence or substitute their own judgment for that of the Medical Board." Borenstein, supra at 761 (citing Brady v. City of New York, 22 NY2d 601; Appleby v. Herkommer, 165 AD2d 727 (1st Dept. 1990)). Ordinarily, the decision of the Trustees as to the cause of an officer's disability "will not be disturbed unless its factual findings are not supported by substantial evidence or its final determination and ruling is arbitrary and capricious." Canfora, supra at 351. However, where, as in this case, the Trustees deny ADR but grant ODR pursuant to a 6-6 tie vote, the standard of judicial review must be different as the Trustees have made no findings. Denial of ADR in consequence of a tie vote "can only be set aside if the courts conclude that the retiree is entitled to [ADR] as a matter of law." Meyer v. Board of Trustees, 90 NY2d 139, 145 (1997). Thus, the Court may not set aside the denial of ADR unless the Court can conclude as a matter of law that disability was the natural and proximate result of a service-related accident [FN3]. No such conclusion can be drawn here.
The Court of Appeals has effectively set up a three part test to determine whether a disability exists and what kind of pension is available as a result.
In this case, Krill's application and the Commissioner's counter application was considered on the first of these issues - whether Krill was disabled as that term applies. After initial findings that she was not, were reconsidered and reversed, she was found to be disabled. Neither party disputes this finding and thus it is unnecessary for this Court to address such issue, and accordingly, Krill is entitled at least to an ODR pension.
The next level of inquiry is whether Krill's disability was as a result of an accident while she was he employed as a police officer. The test has two parts. The fact that Krill fell while she was working as a police officer and was injured as a result of such fall is not enough for her to be entitled to ADR. To be entitled to ADR, the fall must have both been an accident and the cause of the disability. The record [*6]shows that neither of these issues are clear. While there is evidence that Krill caught her foot between cobblestones and fell, thus supporting a finding of a "precipitating accidental event," there was also evidence, from Krill's own statement, that her knee gave way or collapsed, which would have made the injury one "sustained while performing routine duties, but not resulting from unexpected event,"[FN4] where ADR would be unavailable. See Lichenstein v. Board of Trustees, 57 NY2d 1010 (1982).
Krill's case does not turn solely on the question as to whether the injury was an "accident" or not, but also on whether the November 18, 2003 knee injury was the proximate cause of her disability. While not so explicitly stated, the gravemen of the Board's findings were that such knee injury was not the proximate cause of her disability; instead the cause of her disability was effectively found by them to be the natural and progressive deterioration of her knee joints due to her "luck of the draw" condition, her aging (she was 48 at the time of the incident) and the strain on her joints due to her being morbidly overweight and under exercised.
Under these circumstances, the scope of the review by this Court is controlled by Canfora v. Board, 60 NY2d 347 (1983), which stated:
Where, as in the present instance, however, the decision of the board of trustees to deny accidental disability benefits but to grant ordinary disability benefits is reached in consequent of 6 to 6 tie votes, the standard of judicial review is necessarily different. There has been no factual determination by the board to be subjected to review under the normal substantial evidence standard. Rather, the disposition has been based on a procedural practice, first condoned in Matter of City of New York v. Schoeck, 294 NY 559, 63 N.E.2d 104, supra and since 1945 observed, if not honored, by continuous use and general acceptance.
Inasmuch as the fact of disability is not in dispute (the finding of disability by the medical board being binding on the board of trustees [Administrative Code, §§B18-42.0, B18-43.0]), the retired member is entitled at least to ordinary retirement benefits. (Matter of City of New York v. Schoeck, 294 NY 559, 63 N.E.2d 104, supra.) The denial of accidental disability benefits in consequence of the tie vote can be set aside on judicial review only if the courts conclude that the retiree is entitled to the greater benefits as a matter of law. Unless it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident, the decision of the board of trustees denying accidental disability benefits as a consequent of a tie vote must stand. [*7]
Here, the Board determined that Krill's knee injuries constituted a disability preventing her from performance of her police duties but found that her disability was consistent with a progressive degenerative process of the knee unrelated to any line of duty injury. The record reveals sufficient credible evidence to support this conclusion, to prevent this court from concluding that the disability was the natural and proximate result of the September 18, 2004 fall, even if it found such fall to have been a "service-related accident." The Board evaluated Krill's case on four separate occasions, each time reviewing new evidence. While the Board initially recommended disapproval of both ADR and ODR, after reviewing new evidence of Krill's disability showing degenerative osteoarthritis of the right knee, the Board recommended ODR. The Board noted that its findings were all consistent with a degenerative process and not secondary to the line of duty injury, after reviewing reports and letters from Krill's doctors and conducting its own examination.
While, as Krill has argued, the courts have set aside determinations not to grant ADR by a tie vote, the issue presented in such cases was whether the event which precipitated the disability was or was not an accident as a matter of law. Here, this Court need not address whether the fall was an accident or not as the decision of the Medical Board is fully sustainable on the independent basis of its medical finding that her September 18, 2001 accident was not a proximate cause of her disability. Accordingly, as Krill must sustain both a finding of an accident and proximate cause, to prevail, her petition must be dismissed. Each remedy sought by her is predicated on the vacation of the decision of the Trustees and the Board; as this Court has no basis to vacate such decision, no remedy is available to Krill.
This constitutes the Decision and Order of this Court.
DATED:AUGUST 7, 2006
NEW YORK, NEW YORK
________________________
Hon. Lewis Bart Stone
Justice of the Supreme Court
Footnotes
Footnote 1: The record shows that on April 2, 2003, Krill, who was 5'8" tall weighed 307 pounds.
Footnote 2:The statutory schemes covering the Police Pension, the Fire Department's Pension, and the New York City Employees' Retirement System (NYCERS) are extremely similar and Courts have regularly employed the case law interchangeably.
Footnote 3:This standard has been repeatedly accepted by the Court of Appeals since City of New York v. Schoeck, 294 NY 559, 569 (1945), and is thus clearly required by law. However, the Court notes that this practice presents the anomalous result wherein an applicant whose request is denied pursuant to a 13-0 vote might have a greater access to court review than one who was denied on a 6-6 tie.
Footnote 4: See McCambridge v. McGuire, 62 NY2d 563 (1984).
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