Matter of Rocco v Scoppetta

[*1] Matter of Rocco v Scoppetta 2007 NY Slip Op 51179(U) [15 Misc 3d 1146(A)] Decided on June 4, 2007 Supreme Court, Kings County Harkavy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 4, 2007
Supreme Court, Kings County

In the Matter of the Application of Anthony Rocco, Petitioner,

against

Nicholas Scoppetta,as the Fire Commissioner of the City of New York and as Chairman of the Board of Trustees of the New York City Fire Department Article 1-B Pension Fund, The Board of Trustees of the New York City Fire Department Article 1-B Pension Fund, and The City of New York, Respondents.



35129/06



Attorneys for Petitioners:Jeffrey L. Goldberg

2001 Marcus Avenue

Lake Success, New York 11042

(516) 775-9400

Attorneys for Respondents:Michael A. Cardozo

Corporation Counsel of the City of NY

100 Church Street

New York, NY 1000712

(212) 788-1197

Ira B. Harkavy, J.

Petitioner Anthony Rocco seeks a judgment, pursuant to CPLR Article 78, annulling the final determination of the respondents, the Board of Trustees of the New York City Fire Department Article 1-B Pension Fund, which denied petitioner's application for accident disability retirement from the Fire Department of the City of New York, on July 24, 2006. Respondents, the Board of Trustees, Nicholas Scoppetta and the City of New York, oppose the petition.

Background

Petitioner was appointed as a firefighter with the Fire Department of the City of New York (the Fire Department or FDNY) on November 22, 1980 and served continuously with the Fire Department until his retirement on December 20, 2002. As an employee of the Fire Department, petitioner was a member of, and contributed to, the Fire Department Article 1-B Pension Fund (the Pension Fund).

Respondent Nicholas Scoppetta is the Commissioner of the Fire Department and the Chairman of the Board of Trustees of the New York City Fire Department Article 1-B Pension Fund (the Board of Trustees). The Board of Trustees of the New York City Fire [*2]Department Article 1-B Pension Fund was established pursuant to Section 13-316 of the Administrative Code of the City of New York. It is designated by statute to oversee the New York City Fire Department Article 1-B Pension Fund (the Pension Fund) (see New York City Administrative Code § 13-316).

Over the course of his career, petitioner sustained a number of line of duty injuries. On November 5, 1987, petitioner sustained a bruise to his right elbow and a lower back strain after tripping on some debris. On September 15, 1989, petitioner experienced pain in his left shoulder while moving a charged hose line. On October 9, 1990, petitioner sustained a contusion to his right hand and experienced some lower back pain after performing a search and rescue and dragging a fire victim to safety. On October 30, 1990, petitioner sprained his lower back and left shoulder, and sustained some burns to his neck, while performing a rescue and pulling a fire victim to safety. On May 10, 1991, petitioner strained his shoulder and neck while handling a hoseline. On August 9, 1991, petitioner sprained his left shoulder while advancing a charged hoseline. On September 21, 1991, petitioner sustained contusions to his left knee and left shoulder when a car struck the fire truck in which he was riding. On September 29, 1992, petitioner sustained bruises and strained his back and groin, when an explosion caused a roll-down gate to fall on top of him. On January 25, 1994, petitioner strained his left shoulder when he tripped over rubbish and fell. On August 2, 1996, petitioner strained his neck, shoulders and back. On October 24, 1997, petitioner sustained a sprain/strain to his neck and back when he slipped on debris and fell down stairs while advancing in heavy smoke. On January 13, 1999, petitioner sustained a sprain/strain to his left shoulder when he slipped and fell on some ice while carrying a ladder. On September 27, 1999, petitioner sustained some injury to his neck, right shoulder and right elbow when he slipped on some debris while advancing a hoseline up a stairwell. On February 19, 2001, petitioner sustained some injury to his back and left shoulder, when he slipped and fell on some ice while entering a building. An MRI scan of petitioner's lumbosacral spine, conducted on February 27, 2001, revealed degenerative changes with disc bulge at L2-L3; central and left paracentral disc herniation at L5-S1; central disc herniation at L4-L5; and small left paracentral disc protrusion at L3-L4. On September 11, 2001, and for multiple days thereafter, petitioner was present at the World Trade Center and participated in rescue, recovery and clean-up operations. Petitioner claims, that a result of his participation in those efforts at the World Trade Center site, he developed a cough, nasal congestion, shortness of breath, wheezing, sore throat, acid reflux and eye irritation. Although the Fire Department has no record of petitioner having filed an on-duty accident report, petitioner claims that on November 22, 2002, he sustained some injury to his neck when he was struck on the side of the head and fell to the ground.

On December 18, 2002, petitioner submitted an application for Service Incurred Accident Disability Retirement (Accident Disability Retirement) benefits due to injuries he allegedly incurred in the line of duty. In his application, petitioner claimed to have [*3]become disabled due to injuries to his left shoulder, upper back, lower back and neck, and due to a loss of lung capacity which resulted from his work at the World Trade Center site. In response to petitioner's application, Commissioner Scoppetta filed an application on petitioner's behalf for Ordinary Disability Retirement, also referred to as Non-Service Incurred Disability Retirement.On March 27, 2003, petitioner was examined by the Fire Department's Medical Board Committee (the FDNY Medical Board). The FDNY Medical Board is composed of three doctors, who are employed by the Fire Department and who are to make determinations regarding the duty status of firefighters. The FDNY Medical Board concluded that petitioner was unfit for firefighting duty due to clinical asthma with airway hyper-reactivity, cervical disc disease, lumbrosacral disc disease, and left shoulder tendinitis. Tthe FDNY Medical Board further opined that petitioner suffered from a partial permanent disability, and recommended that petitioner only be assigned to perform light duty. In stating its conclusions, the FDNY Medical Board opined that "[f]uture exposure to dust, noxious fumes and/or toxins may precipitate life-threatening bronchospasm and/or may worsen the progression of his underlying disease."

On or about September 23, 2004, petitioner's case was considered for the first time by the Pension Fund's Medical Board (the Pension Fund Medical Board or the Medical Board). The Pension Fund Medical Board is composed of three doctors who are independent of, and not employed by, the Fire Department. The Pension Fund Medical Board is composed of different doctors than the FDNY Medical Board, and has different responsibilities. The Pension Fund Medical Board reviews an applicants medical records and other evidence. It may conduct its own examination and interview with an applicant, and it may make its own referrals for examinations and other reports. . The Pension Fund Medical Board then makes a determination as to whether an applicant is disabled for purposes of pension eligibility, and submits a report for the consideration of the Board of Trustees with its recommendation. The Pension Fund Medical Board is the only entity authorized by statute to make a determination as to whether an applicant is disabled for the purposes of pension eligibility.

The Pension Fund Medical Board reviewed the report of the FDNY Medical Board and considered the conclusion of the FDNY Medical Board that petitioner was unfit for firefighting duty due to clinical asthma with airway hyper-reactivity, cervical disc disease, lumbrosacral disc disease, and left shoulder tendinitis. The Pension Fund Medical Board also conducted their own interview and physical examination of petitioner, and reviewed FDNY Member Injury Reports and various medical reports and records.

Based on its interview and physical examination of petitioner, and its review of the available medical evidence, the Pension Fund Medical Board concluded that there was insufficient evidence of a left shoulder disability to warrant the grant of an accident disability pension. With respect to petitioner's claim of diminished lung capacity, the Pension Fund Medical Board requested that petitioner undergo complete pulmonary function studies and then return for re-evaluation by the Board. [*4]

On November 2, 2004, petitioner underwent pulmonary function testing at the New York University Pulmonary Function Laboratory.

On February 3, 2005, the Pension Fund Medical Board reconsidered petitioner's application. The Board reviewed the results of the pulmonary function testing performed at NYU and found the results to be normal. The Pension Fund Medical Board concluded that there was insufficient evidence to find that petitioner was disabled due to his respiratory condition. In regard to petitioner's claim regarding injuries to his spine, the Pension Fund Medical Board deferred a final determination and requested that petitioner undergo an examination by its neurosurgical consultant, Dr. Richard Raynor.

On March 22, 2005, Dr. Raynor examined petitioner and reviewed MRIs of petitioner's lumbar and cervical spine from December 4, 2002.

On May 5, 2005, the Pension Fund Medical Board considered petitioner's application for the third time. After reviewing Dr. Raynor's findings of a normal exam, the Medical Board concluded that there was insufficient evidence to find that petitioner suffered from a disability of the spine which would which would prevent him from performing full fire duty. The Medical Board also reviewed an operative report regarding an operation petitioner had to his left shoulder on January 10, 2005, and requested that petitioner undergo an examination by its orthopedic consultant, Dr. Basil Dalavagas.

On July 14, 2005, Dr. Dalavagas examined petitioner and reviewed x-rays of the left shoulder and the January 10, 2005 operative report.

On August 18, 2005, the Pension Fund Medical Board considered petitioner's application for the fourth time. After reviewing Dr. Dalavagas' findings of a normal exam, the Pension Fund Medical Board concluded that there was insufficient evidence to find that petitioner suffered from a disability of the shoulder which would which would prevent him from performing full fire duty. The Medical Board went on to recommend that petitioner's application for disability retirement be denied.

On October 28, 2005, the Board of Trustees considered petitioner's case for the first time and remanded the application to the Pension Fund Medical Board to review a September 9, 2005 report by Dr. Daniel E. Wilen, a private orthopedist who repeatedly evaluated petitioner's shoulder, neck and back injuries, and an MRI report by Dr. Stephen Hershowitz, dated May 20, 2004.

On December 29, 2005, the Pension Fund Medical Board considered petitioner's application for the fifth time. The Board concluded that the reports of Dr. Hershkowitz and Dr. Wilen did not require any change in its prior determinations or recommendation to the Board of Trustees.

On January 25, 2006, the Board of Trustees considered petitioner's case for the second time and adopted the recommendation of the Pension Fund Medical Board to deny petitioner's application.

On February 27, 2006, the Board of Trustees considered petitioner's application for [*5]accident disability retirement for the third time. Petitioner submitted a great deal of new medical evidence to the Board, including reports from Dr. Wilen, who repeatedly opined that petitioner was disabled due to those injuries, and reports from Dr. Phillip J. Cosentino, a private pulmonalogist, who repeatedly evaluated petitioner and repeatedly opined that petitioner suffered from inflammatory reactive airway disease and/or bronchial asthma and sever dyspnea due to his work at the World Trade Center site, as well as various other items of medical evidence which seemingly support petitioner's application for disability retirement. The Board rescinded its prior denial of petitioner's application and remanded the application to the Pension Fund Medical Board for consideration of the new evidence.

On June 15, 2006, the Pension Fund Medical Board reviewed petitioner's application for the sixth time. As directed by the Board of Trustees, the Pension Fund Medical Board reviewed Dr. Wilen's report dated April 21, 2006; Dr. Cosentino's pulmonary function report dated March 21, 2006; office notes of Dr. Cosentino and his partner, Dr. Tarantola, from November 26, 2002 through March 24, 2006; Dr. Cosentino's report dated March 30, 2006; sleep studies dated October 5, 2005 and January 23, 2006; Dr Wilen's report dated September 9, 2005; a World Trade Center health effects related evaluation by Mount Sinai Hospital dated August 16, 2005; Dr. Wilen's report dated May 20, 2005; a physical therapy report by Nova-Care P.T. Clinic dated April 25, 2005; a operative report by Victory Memorial Hospital dated January 10, 2005; Dr. Cosentino's pulmonary function test report dated September 7, 2004; a Methacholine Challenge test report dated October 6, 2003; Dr. Wilen's report dated November 23, 2002; a Dr. Tsatskis' examination reports and EMG reports dated January 7, 2003 and January 14, 2003; a Methacholine Challenge test report dated December 17, 2002, and a FDNY Member Injury Report dated September 29, 1992. After reviewing all of the aforementioned, the Pension Fund Medical Board reaffirmed its prior recommendation to deny petitioner's application.

Finally, on July 24, 2006, the Board of Trustees considered petitioner application for accident disability retirement for the fourth time. The Board of Trustees again noted its adoption of the recommendation of the Pension Fund Medical Board and denied petitioner's application.

On or about November 17, 2006, petitioner commenced the instant proceeding pursuant to CPLR Article 78. Respondents joined issue with the service of their Answer on or about April 6, 2007.

Discussion

It is axiomatic that in an Article 78 proceeding the court's function is to determine whether the action of an administrative agency had a rational basis or was arbitrary and capricious (see e.g. Pell v Bd. of Educ., 34 NY2d 222, 230-231 [1974]). "Arbitrary action is without sound basis in reason and is generally taken without regard to the fact" (Pell, 34 NY2d at 231). A rational basis exists where the determination is " [supported] by [*6]proof sufficient to satisfy a reasonable [person], of all the facts necessary to be proved in order to authorize the determination'" (Ador Realty, LLC v DHCR, 25 AD3d 128, 139-14 [2005] quoting Pell, 34 NY2d 231).

In regards to an application for accident disability retirement, if a member of the Fire Department is rendered incapable of full duty firefighting as a result of his performance and discharge of his duties, he is entitled to an accident disability pension (see generally Admin Code §§ 13-353). The New York City Administrative Code provides that a firefighter is entitled to accident disability retirement if he or she can demonstrate that he or 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" (Administrative Code § 13-353; see also Matter of Meyer v Board of Trustees of the NY City Fire Dept., Art. 1-B Pension Fund, 139, 144 [1997]). Generally, the burden rests with the applicant to demonstrate that they are disabled from firefighting service and entitled to a disability retirement (see e.g. Matter of Nemecek v Board of Trustees of the NY City Fire Dept., Art. 1-B Pension Fund, 99 AD2d 954, 955 [1984]). Furthermore, in regards to accident disability retirement, Administrative Code § 13-354 creates a presumption that "any condition of impairment of health caused by diseases of the lung," which results in "total or partial disability or death" to a firefighter, was incurred in the line-of-duty. Similarly, Administrative Code § 13-353.1 creates a presumption which specifically applies to firefighters who participated in operations at the World Trade Center site, and who suffered impairments to their health as a consequence of that work. The World Trade Center presumption specifically includes, inter alia, bronchitis, asthma and hyper-reactive airway dysfunction syndrome (see Administrative Code § 13-353.1 [1] [c]).

Once an application for accident disability retirement is made, the applicant is examined by the Pension Fund Medical Board, which then makes a recommendation to the Board of Trustees for a final determination on the application (see generally Admin Code §§ 13-323, 13-353). The question of whether an applicant suffers from the claimed injury, and whether the claimed injury incapacitates the applicant from the performance of city-service is solely for the Medical Board (see e.g. Kuczinski v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 8 AD3d 283 [2004]; Matter of Drew v N,Y. City Employees' Retirement Sys., 305 AD2d 408, 409 [2003]; Matter of Meyer, 90 NY2d at 145; Matter of Borenstein v NY Employees' Retir. Sys., 88 NY2d 756, 760-761 [1996] revg 218 AD2d 523 [1995]). The determination of the Medical Board is conclusive if it is supported by some credible evidence and is not irrational (Matter of Rodriguez v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 3 AD3d 501 [2004], citing Matter of Meyer, 90 NY2d at 145, Matter of Drew v NY City Employees' Retirement Sys., 305 AD2d 408, 409 [2003]). The Board of Trustees cannot make an independent determination regarding disability (Matter of Borenstein, 88 NY2d at 759; accord Matter of Meyer, 90 NY2d 139). [*7]

When the Medical Board is presented with conflicting medical evidence and opinion, it is the province of the Medical Board to reconcile such conflicts (see e,g, Matter of Vasola v Board of Trustees of the NY City Fire Dept., Art. 1-B Pension Fund, 37 AD3d 478, 478 [2007]; Matter of Kuczinski, 8 AD3d at 283; Matter of Drew, 305 AD2d at 409; Matter of Bartsch v Board of Trustees of NY City Fire Dept, 142 AD2d 577 [1988]; Matter of Borenstein, 88 NY2d at 760). While the expert opinion of the Medical Board is to be generally afforded great deference, the credible evidence standard requires that the Medical Board articulate a a rational, fact-based explanation for its opinion, based upon the objective medical evidence (see e.g. Matter of Meyer, 90 NY2d at 148). A determination of the Pension Fund Medical Board can not be said to be rational where the medical issues presented by the applicant are not adequately addressed by the Medical Board or where the medical findings do not sustain the determination of the Medical Board (see Matter of Rodriguez, 3 AD3d at 501-502). The Pension Fund Medical Board is obligated to explain it's determination and provide some basis for judicial review (Marley v Board of Trustees of the NY Fire Dept Art. 1-b Pension Fund, NYLJ, May 1, 2007, at 22, col 3 [Sup Ct, Kings County, Battaglia, J.], citing Perkins v Board of Trustees of the New York Fire Dept. Art 1-b Pension Fund, 59 AD2d 696, 697 [1977]).

In the instant matter, petitioner contends, inter alia, that the determinations of the Board of Trustees and the Pension Fund Medical Board were not based on competent or substantial evidence, and contrary to competent evidence which established that petitioner is disabled by reason of injuries incurred in the line of duty.

The court finds that the determinations of the Medical Board and the Board of Trustees in the instant matter should be set aside, and that the matter should be remanded for their further consideration. Taken together, the reviews of the Medical Board can only be viewed as conclusory. An examination of the records leads this court to conclude that the Medical Board considered only those tests and reports that supported its denial and ignored those tests and reports that contradicted its position without explanation. Accordingly, the reviews are insufficient to establish that the Medical Board's recommendations and the Board of Trustee's determinations were based on credible evidence. Furthermore, the Medical Board failed to set forth its reasoning as to why the evidence which supports its determination was more conclusive that the evidence to the contrary.

The Board of Trustees, in turn, failed to address the contradictory evidence submitted by petitioner and failed to question the Pension Fund Medical Board in appropriate detail in regard to the conflicting medical evidence.

Of all of the various reviews by the Medical Board, the Medical Board offered no explanation for its recommendations. The reviews simply cite the reports and tests they considered and give a recommendation as to disability. When faced with seemingly contradictory evidence, the Board would refer petitioner for another examination and evaluation, and then base its recommendation to the Board of Trustees on the results of [*8]that examination without any discussion of the previously accumulated medical evidence.

In their September 23, 2004 report, the Medical Board simply listed the medical evidence it considered, stated a conclusory finding as to petitioner's alleged shoulder disability without explanation, and requested a further evaluation of petitioner's alleged respiratory disability by their own expert. In their February 3, 2005 report, the Medical Board simply stated that their requested evaluation of petitioner's alleged respiratory disability was normal, stated a conclusory finding as to petitioner's alleged respiratory disability without explanation, and requested a further evaluation of petitioner's alleged spinal disability by their own expert.[FN1] In their May 5, 2005 report, the Medical Board simply stated that their requested evaluation of petitioner's alleged spinal disability was normal, stated a conclusory finding as to petitioner's alleged spinal disability, and, because of some evidence that petitioner had surgery to his shoulder on January 10, 2005, requested a further evaluation regarding petitioner's shoulder. In their August 18, 2005 report, the Medical Board simply stated that their requested evaluation of petitioner's shoulder was normal, and stated a conclusory finding that petitioner suffered from no disability to his shoulder, spine or lungs, without explanation. On December 29, 2005, after petitioner's case was remanded back to the Medical Board by the Board of Trustees for the review of a report from petitioner's orthopedist and an MRI report, the Medical Board simply stated that they noted the reports and, without out explanation, that the reports did not effect their prior determination. On June 15, 2006, after petitioner's case was remanded to the Medical Board by the Board of Trustees on February 27, 2006, to consider a great deal of additional medical evidence, the Medical Board simply listed the approximately twenty-one additional items of medical evidence and stated, without explanation, that the additional evidence did not effect its prior determination.

Perhaps most significantly, the Pension Fund Medical Board noted the determinations of the FDNY Medical Board, and eventually stated a conclusion to the contrary without any explanation as to why it found the determinations of the FDNY Medical Board lacking. The court notes, specifically in regards to petitioner's alleged respiratory disability, that the FDNY Medical Board found that petitioner suffered from, inter alia, clinical asthma and airway hyperactivity, and opined that he is unfit for firefighting activity. They further opined that any future exposure to dust, noxious fumes and/or other toxins could precipitate life-threatening bronchospasm and/or worsen the progression of petitioner's underlying disease. [*9]

Furthermore, many studies have been done and/or are ongoing regarding the health of those who were present at the World Trade Center site on September 11, 2001, and those who labored at the site in the days and weeks afterwards. Dr. David Preznant, a member of the FDNY Medical Board Committee which initially found petitioner to be disabled, is himself nationally recognized as an authority on the health consequences of the World Trade Center disaster (see petitioner's Reply Memorandum of Law, Appendix C). There is little doubt that many, if not all, of those who were present at the World Trade Center site on September 11, 2001 and who labored there afterwards have suffered from negative repercussions to their health as a result of their spent there (see e.g. Lite, Big Rise in Lung Ailments for WTC Bravest, New York Daily News, May 8, 2007). There has also been a great deal of litigation, both CPLR Article 78 proceedings and other sorts of litigation, regarding the negative health consequences of those who labored at the World Trade Center site and legislation to secure benefits for those who labored at the site and the families of those who dies as a consequence of their labor at the site. Petitioner in this action was a first responder to the World Trade Center on September 11, 2001, and participated in the rescue, recovery and clean-up operations in the days immediately following. Respondents have never contested that fact. For that reason alone, this court would find sufficient cause to remand this matter for further review and explanation as to why petitioner is not qualified for an accident disability pension.Accordingly, the Court finds that the denial of petitioner's Accident Disability Retirement application was deficient and that respondents did not sufficiently discuss or articulate their reasoning as is required by law. For the court to find that the determination of the Pension Fund Medical Board was based upon credible evidence, the Pension Fund Medical Board must do more than simply identify reports and tests and state its conclusion. Further, where there is seemingly conflicting medical evidence, the Medical Board must address that evidence and explain why the evidence it discounts is not valid, and why the evidence it relies upon is more persuasive. To the extent that certain medical evidence seems to contradict the conclusion of the Medical Board, if the Board believed those opinions and diagnoses were incorrect, the Medical Board was obligated to explain why. Without such, the court can not say the recommendation of the Medical Board and the determination of the Board of Trustees was based on credible evidence.

The Court accordingly finds sufficient cause to set aside the determination of the Board of Trustees, and to remand this matter for new findings by the Pension Fund Medical Board and further consideration by the Board of Trustees in light of the conflicting medical evidence.

This constitutes the Decision, Opinion and Order of this Court.

Dated: June 4, 2007

ENTER, [*10]

_________________________

IRA B. HARKAVY

J.S.C. Footnotes

Footnote 1: The Court also notes that the further evaluation of petitioner's alleged respiratory disability, which was performed by the Medical Board's own experts at New York University's Rusk Institute on November 2, 2004, and submitted into evidence by both sides, seems devoid of any of the usual analysis or conclusions (compare Ryan v Scoppetta, Sup Ct, Kings County, May 31, 2005, Ruchelsman, J. Index No. 35500/05).