Matter of Fitzgerald v Board of Trustees of NY Fire Dept. Art. 1-B Pension Fund

[*1] Matter of Fitzgerald v Board of Trustees of NY Fire Dept. Art. 1-B Pension Fund 2008 NY Slip Op 50601(U) [19 Misc 3d 1108(A)] Decided on March 17, 2008 Supreme Court, Kings County Balter, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2008
Supreme Court, Kings County

In the Matter of the Application of, Brian Fitzgerald, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

against

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



19439/07

Bruce M. Balter, J.

Upon the foregoing papers, petitioner Brian Fitzgerald seeks a judgment, pursuant to Article 78 of the CPLR : (1) annulling the determination of the respondents herein which denied an accident disability pension to petitioner on the ground that said determination was arbitrary, capricious, unreasonable and unlawful; (2) directing respondents to retire petitioner with an accident disability pension or, in the alternative (3) directing a judicial trial of the factual and/or medical issues involved herein pursuant to CPLR 7804(h) or (4) directing the respondent Board of Trustees of the New York Fire Department Article 1-B Pension Fund (the Board of Trustees) to allow petitioner and/or his representatives to present such testimony as is necessary at a hearing.[FN1] Respondents the Board of Trustees, Nicholas Scopetta, Commissioner of the Fire Department of the City of New York and Chairman of the aforesaid Board and the City of New York oppose the instant petition, via a verified answer, on the ground that the determination of the Board of Trustees was not arbitrary and capricious as it relied upon [*2]the binding opinion of the 1-B Medical Board - the sole entity authorized to weigh the relevant medical evidence and to reconcile any conflicts with respect to same - which was sufficiently supported by some credible evidence.

On or about April 23, 2004, petitioner, a New York city firefighter who was employed in such title in city service since 1984, applied for a service incurred disability retirement pension based upon a lung disability that he allegedly suffered as the result of rescue and recovery operations he undertook at the site of the 9/11 terrorist attacks on the World Trade Center and on November 12, 2001 at the site of a plane crash in Belle Harbor, Queens. The reason stated for his inability to continue performing the duties of his title was that he had "failed methacholine challenge on 4/21/04 at NYU Medical Center. Test taken at request of Dr. Weiden FDNY Med. Officer."[FN2]

On or about May 3, 3004, petitioner was evaluated by the Fire Department's Medical Board Committee (BHS Committee).The BHS Committee made the following findings:

[Petitioner] is 50 years old with nearly 20 years of service to the New York City Fire Department. He denies any prior cardiopulmonary complaints pre-WTC dust exposure. He [was] never a smoker and denies any allergies. He was present at WTC during Day 3 and for multiple days thereafter. He developed a cough, nasal congestion, shortness of breath, wheezing, sore throat, acid reflux and eye irritation.

Off medications he was sent for methacholine challenge testing on 4/21/04 at NYU. Methacholine challenge showed normal flow rates (FEV-1 = 109% pred.) prior to administration of methacholine and greater than 20% drop in FEV-1 with methacholine followed by a bronchodilator response. Due to airway hyperreactivity and symptomatology, he was restarted on inhaled bronchodilators and inhaled corticosteroids.

Due to the presence of clinical asthma with wheezing, chest tightness and cough, as well as documented airway hyperreactivity, it is our feeling that he is unfit for firefighting activity. Future exposure to dust, noxious fumes and/or toxins may precipitate life-threatening bronchospasm and/or may worsen the progression of his underlying disease. His respiratory disability is permanent and related to his 9/11 WTC [*3]exposures.

The BHS Committee concluded that petitioner's diagnosis was clinical asthma with airway hyperreactivity and recommended that he be put on light duty.

On or about January 26, 2006, the 1-B Medical Board reviewed petitioner's application for accident disability pension benefits. The 1-B Medical Board made the following determination:

On 1/26/06, the 1-B Medical Board considered the case of [petitioner], a 52 year old in the employment of the Fire Department for 21 years. We noted that there was a Fire Commissioner's application on file, as well as an application by the member for accident disability retirement.

We reviewed the Fire Department Medical Board Committee report of 5/3/04, which found the member unfit for fire duty with a diagnosis of clinical asthma with airway hyperreactivity. We also reviewed the Methacholine Challenge report of 4/21/04, and the MD-9 record.

The 1-B Medical Board requests that the member undergo pulmonary function studies at NYU to include spirometry and lung volumes before and after bronchodilator, off any steroid[] containing medications for minimum of four weeks and remain off such medications until he is examined by the 1-B Medical Board.

On or about April 6, 2006, after petitioner completed the pulmonary function studies, the I-B Medical Board again considered petitioner's application and made the following findings:

On 4/6/08, the 1-B Medical Board again considered the case of [petitioner]. This case was last reviewed on 1/26/06, at which time the member was referred to NYU Rusk Institute for pulmonary function studies.

The 1-B Medical Board reviewed the pulmonary function studies performed on 3/1/06, at NYU at our request. These studies are normal. However, he had resumed his steroid medication a week prior to performing the test. Examination today demonstrates some wheezing with forced expiration.

It is the feeling of the 1-B Medical Board that he repeat pulmonary function studies after being off all respiratory medications for a minimum of 4 weeks and that he use [a] bronchodilator only when absolutely necessary. We will re-examine the member after repeat pulmonary function studies and request that he does not go back on regular respiratory medication until he is examined by us.

The interpretation by Dr. Kenneth I. Berger, the Medical Director of the Pulmonary Function Laboratory at NYU Medical Center, appended to subject pulmonary [*4]studies, states the following:

[Petitioner] is a 52 year old male fire fighter who is referred for evaluation.

Lung volumes are within normal limits.

Spirometry demonstrates a normal vital capacity and a normal FEV1. The FEV1/FVC ratio is within normal limits. Expiratory airflows are mildly reduced at mid and low lung volumes.

Following bronchodilator administration there was improvement in the mid expiratory airflows.

Pulmonary diffusing capacity is within normal limits.

IMPRESSION: Although the FEV1 was within normal limits, there is a suggestion of airflow obstruction as marked by reduced airflows at med and low lung volumes. These findings improved following bronchodilator administration. The significance of these findings are [sic] unclear and require clinical correlation.

On or about May 25, 2006, the 1-B Medical Board again considered petitioner's application and made the following determination:

On 5/25/06 the 1-B Medical Board again considered the case of [petitioner]. This case was last reviewed on 4/6/06, at which time the member was referred to NYU Rusk Institute for repeat pulmonary function studies.

The 1-B Medical Board has reviewed the member's application and notes that pulmonary function studies performed at our request on May 8, 2006, were essentially normal. Interview demonstrates the member has a nocturnal cough and a history of reflux. Auscultation today is normal.

It is the opinion of the 1-B Medical Board that the member has laryngitis as a cause of his nocturnal cough, which is related to gastric reflux, which we do not consider a permanent condition. His application for the Lung Bill is therefore denied.

On or about September 29, 2006, the Board of Trustees considered petitioner's application. During the meeting, the Board of Trustees remanded the matter back to the 1-B Medical Board to consider a new Methacholine Challenge test performed at NYU on August 2, 2006. On November 9, 2006, the 1-B Medical Board again considered petitioner's application and made the following determination:

On 11/9/06, the 1-B Medical Board again considered the case of [petitioner]. The case was reviewed on 5/25/06, at which time the member was denied disability retirement.

The 1-B Medical Board notes a remand by the Board of Trustees regarding a [*5]Methacholine Challenge test performed at NYU, dated August 2, 2006. Review of this test demonstrates normal baseline airflows and a negative response. There is a nonspecific response to a high dose of Methacholine, which is not indicative of a positive Methacholine test.

It is the opinion of the 1-B Medical Board that we reaffirm our opinion dated May 25, 2006, that the application for the Lung Bill be denied.

Thereafter, the Board of Trustees considered petitioner's application and adopted the 1-B Medical Board's recommendation to deny petitioner an accident disability retirement. By letter dated January 31, 2007, petitioner was notified that application had been denied. On or about June 1, 2007, the petitioner commenced the instant Article 78 proceeding seeking a judgment annulling and vacating said determination and directing the respondents to retire him with an accident disability pension.

"Whether a firefighter is disabled is determined by the Medical Board of the New York City Fire Department, Article 1-B Pension Fund [and its] determination that a firefighter is not disabled for duty is conclusive if it is supported by some credible evidence and is not irrational" (Matter of Campbell v Board of Trustees of New York City Fire Dept., Article 1-B Pension Fund, 47 AD3d 926, 927 [2008]). "[W]here conflicting medical evidence and medical reports are presented to the Medical Board, it is solely within its province to resolve such conflicts" (Clarke v Board of Trustees of New York City fire Dept., Article 1-B Pension Fund, 46 AD3d 559, 560 [2007]). Accordingly, "[t]he court cannot weigh the medical evidence and substitute its own judgment for that of the Medical Board" (id.). With respect to the "credible evidence" standard, " credible evidence is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered'" (Matter of Vidal v Board of Trustees of the New York City Fire Dept., Article 1-B Pension Fund, 32 AD3d 399, 399 [2006], quoting Matter of Meyer v Board of Trustees of NY City fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 147 [1997]). Therefore, "[a]n articulated, rational and fact-based medical opinion" constitutes credible evidence, whereas mere conjecture or unsupported suspicion does not (see Matter of Meyer, 90 NY2d at 147). Moreover, given the 1-B Medical Board's sole authority to make the ultimate disability determination with respect to a firefighter's application for same, a contrary conclusion as to disability by the BHS Committee does not, in and of itself, render the 1-B Medical Board's determination arbitrary and capricious (see generally Matter of Nemecek v Board of Trustees of the New York City Fire Dept., Article 1-B Pension Fund, 99 AD2d 954, 954-955 [1984]).

In the instant case, the court finds that the determination of the 1-B Medical Board at issue relies upon some credible evidence and, therefore, is not subject to judicial modification or remand. In reaching its determination, the 1-B Medical Board reviewed the BHS Committee determination finding that petitioner suffered from clinical asthma with airway hyperreactivity and the Methacholine test relied upon by the BHS Committee [*6]in reaching such determination, pulmonary function studies that it directed petitioner to undergo at NYU Medical Center, an additional Methacholine test administered to petitioner on August 2, 2006 and its own interviews with, and examination of, petitioner. Based upon such evidence, the 1-B Medical Board concluded that petitioner was suffering from laryngitis occasioned by gastric reflux, a condition that did not qualify under the Lung Bill as a basis for petitioner's receipt of accident disability benefits.

In support of his petition, petitioner argues at length that the 1-B Medical Board failed to address the implications of the asthma diagnosis rendered by the BHS Committee for his continued employment as a firefighter on active duty. He also refers to various medical articles and related literature which detail potential "triggering" agents for asthma, the general symptomology of the disease, and the limitations such symptoms may impose upon an individual with respect to his or her recommended activity and exercise levels. However, the court notes that the 1-B Medical Board, unlike the BHS Committee, did not diagnose or otherwise acknowledge that petitioner suffers from any form of asthma. Rather, the 1-B Medical Board, based upon its review of the relevant tests and its own interview and examination of the petitioner, concluded that petitioner was not suffering from a lung ailment recognized under the Lung Bill. Instead, the 1-B Medical Board concluded that plaintiff had laryngitis caused by gastric reflux. The credible evidence supporting such conclusion was the 1-B Medical Board's findings that the pulmonary function studies and a Methocholine test performed on August 2, 2006 were not positive for any appreciable lung function impairment as well as the patient's reported history of a nocturnal cough and gastric reflux. In addition, although the 1-B Medical Board found, during its initial examination of petitioner, that petitioner exhibited some wheezing upon forced expiration, it also found petitioner's auscultation to be normal upon a subsequent examination. Moreover, there is no indication that the medical literature relied upon by petitioner was ever utilized by the 1-B Medical Board with respect to petitioner as petitioner never was diagnosed with asthma by the 1-B Medical Board. Moreover, where, as here, the 1-B Medical Board has elucidated some credible evidence for its conclusion, the court is precluded from second guessing the 1-B Medical Board's determination and substituting its own judgment in place of such determination. In addition, the mere difference in opinion between the 1-B Medical Board and the BHS Committee as to the nature of petitioner's condition is not sufficient to set aside the determination of the Medical Board given the well established principle that the 1-B Medical Board is the sole entity authorized to resolve conflicts in the relevant medical evidence.[FN3] [*7]

Petitioner also relies upon Tesoriero v Board of Trustees of the New York Fire Dept. Article 1-B Pension Fund (17 Misc 3d 497 [2007]), which concerns the remand of a case by the Supreme Court, Kings County to the 1-B Medical Board where said board had concluded that the petitioner suffered from mild intermittent asthma, but failed to explain why such condition did not qualify as a disabling lung ailment pursuant to the Lung Bill given the duties and responsibilities of a firefighter on active duty. The court in that case based its remand upon the following reasoning:

On the record . . . this court finds that the Medical Board's determination is not credible since its scant six-sentence determination is devoid of any articulated basis for concluding that mild intermittent asthma' is not a disabling condition for a firefighter. Such findings are wholly conclusory without any explanation of the characteristics of mild intermittent asthma,' the performance requirements for a firefighter, or an assessment of any risk that mild intermittent asthma,' may pose to the safety of the petitioner and his colleagues while performing his duties as a firefighter. Moreover, the report fails to identify any specific medical literature or other documentation which supports the Medical Board's claim of non-disability, nor does the Medical Board explain the apparent inconsistency within its expert's reports, i.e., that petitioner has obstructive airway dysfunction' and bronchial hyper-reactivity, that pulmonary studies are essentially normal' with small airway dysfunction,' and that petitioner has mild intermittent asthma" although he is not disabled. Therefore , while the Medical Board's report is binding upon the Board of Trustees, since the Medical Board's report is not credible, it is insufficient.

(id. at 503).

Unlike the Tesoriero case, however, the instant case concerns a determination by the Medical Board that petitioner was merely suffering from laryngitis caused by gastric reflux based upon his symptoms (nocturnal coughing), medical history (gastric reflux), the Medical Board's examination which found mild wheezing on one occasion but normal auscultation on another and the 1-B Medical Board's review of pulmonary studies and a Methocholine test, all of which were essentially normal in the Medical Board's view. This matter does not, therefore, concern a finding by the 1-B Medical Board whereby the board determines that plaintiff does suffer from a demonstrable and diagnosable lung impairment, such as asthma, but then, without explanation, concludes that such impairment is not disabling with respect to the firefighter's general duties. Accordingly, given that the court is constrained to apply a narrow standard of review and to sustain the [*8]1-B Medical Board's determination if such determination is based upon any credible evidence and is not irrational, it is foreclosed, in this instance, from substituting its own judgment for that of the 1-B Medical Board and must defer to the expertise of same (see Ruzicka v Board of Trustees of New York City Fire Dept. Article 1-B Pension Fund, 283 AD2d 581 [2001]).[FN4]

As a result, the petition is denied and the instant article 78 proceeding is dismissed.[FN5]

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

E N T E R,

J .S. C. Footnotes

Footnote 1: Petitioner also seeks to conduct discovery if a trial is granted by this court.

Footnote 2: Petitioner seeks accident disability benefits pursuant to New York City Administrative Code § 13-354 which states:

Notwithstanding any other provisions of this code to the contrary, any condition of impairment of health caused by diseases of the lung, resulting in total or partial disability or death to a member of the uniformed force, who successfully passed a physical examination on entry into the service of such department, which examination failed to reveal any evidence of such condition, shall be presumptive evidence that is was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.

Footnote 3: In addition, although New York City Administrative Code § 13-168 mandates that any condition or impairment of health, including such conditions as, inter alia, conjunctivitis, rhinitis, sinusitis, pharyngitis, laryngitis, vocal cord disease, upper airway hyperactivity, tracheo-bronchitis, bronchitis, asthma, reactive airway dysfunction syndrome, pneumonitis, esophagitis and reflux disease, resulting in disability to a member in city-service who participated in World Trade Center rescue, recovery or cleanup operations for a minimum of forty hours shall be presumptive evidence that such disability was incurred in the performance and discharge of duty, said presumption does not encompass any additional presumption that the conditions listed thereunder automatically qualify as disabling conditions under either the Lung Bill or any other provision authorizing the retirement of a firefighter with accident disability benefits.

Footnote 4: The court is mindful that other recent cases have emerged from the Supreme Court in Kings County concerning the remand to the 1-B Medical Board of accident disability retirement determinations which denied such benefits to firefighters whose disability claims were based upon lung ailments allegedly sustained by them as a result of their rescue and recovery operations at the World Trade Center site on September 11, 2001 and thereafter, where such determinations were found to be unduly conclusory and contradictory with respect to the medical evidence adduced (see e.g. Matter of Rocco v Scopetta, 15 Misc 3d 1146 (A) [2007]; Matter of Marley, 15 Misc 3d 1068 [2007]). The court notes, however, that such cases largely turn upon the specific medical facts identified therein and, to the extent such cases appear to expand the standard of review of the court beyond the "any credible evidence" rule recognized by the Appellate Division and Court of Appeals and to encourage a more searching and critical review of the medical evidence by the court, this court declines to join in such expansion absent specific binding precedent establishing same.

Footnote 5: Given the dismissal of the petition, the petitioner's request for a trial pursuant to CPLR 7804(h) is denied as moot.