Matter of Warren v Board of Trustees of N.Y. Fire Dept. Art. 1-B Pension Fund

[*1] Matter of Warren v Board of Trustees of NY Fire Dept. Art. 1-B Pension Fund 2008 NY Slip Op 50773(U) [19 Misc 3d 1119(A)] Decided on March 25, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 25, 2008
Supreme Court, Kings County

In the Matter of the Application of, John Warren, 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.



25496/05

Bruce M. Balter, J.

Upon the foregoing papers, petitioner John Warren 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, [*2]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 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 February 27, 1982, petitioner became a firefighter with the New York City Fore Department. Petitioner was involved in cleanup activities which took place subsequent to the 9/11 terror attacks on the World Trade Center. He allegedly worked at the subject site beginning about 3 days after September 11, 2001 and continuing for at least six months thereafter on a regular basis. On September 10, 2002, petitioner submitted an application for accident disability retirement benefits based upon alleged impairments with respect to his left hand, left shoulder, back and left knee. He also checked a box next to the lung disability category. Petitioner stated in his application that an EMG of his left hand showed the return of nerve damage which caused numbness to his index finger and thumb and also averred that he would need another operation on this hand. He also stated that he had sustained a back injury that was "continuing to cause problems." With respect to his alleged shoulder impairment, he alleged that an operation had been performed on said shoulder and that he had limited movement "in motion above and in front movements." He did not describe the nature of his alleged lung ailment. On or about October 12, 2002, petitioner retired from the Fire Department with service retirement benefits from the subject pension fund.

On January 7, 2003, petitioner was examined by the Medical Board Committee of the Fire Department's Bureau of Health Services (the BHS Committee), which made the following findings concerning his medical condition:

[Petitioner] is a 48-year old man who has a history of bilateral carpal tunnel surgery in February and in May of 1998. He had recurrence of the pain in his left hand following a fall in March of 2002. An EMG on 4/10/02 showed evidence of left carpal tunnel syndrome. He continues to have weakness and tingling in his left hand. He wears a splint and he is considering surgery.

Also in March of 2002 he had left shoulder surgery with a subsequent diagnosis of impingement syndrome. He was seen by Dr. Hannafin and on 6/12/02 underwent left shoulder subacromial decompression. This has been followed by a course of physical therapy.

On examination today he continues to have pain and limited strength. On [*3]overhead elevation he has clicking in the shoulder. In addition he has decreased grip strength in his left hand.

In addition a CAT scan of the chest revealed multiple small, less than 5mm, nodules. This has been addressed by the pulmonologist and well be followed by serial CAT scans in the future.

The BHS Committee rendered a diagnosis of carpal tunnel syndrome left hand and impingement syndrome left shoulder post status subacromial decompression with persistent symptoms. It also recommended that petitioner be placed on light duty. On February 26, 2003, the Fire Commissioner submitted an application for petitioner to be processed for consideration of disability retirement benefits based upon the recommendation of the BHS committee.

In a letter dated August 20, 2003, Dr. Michael Frankenthaler, one of petitioner's treating physicians, addressed the issue of petitioner's lung nodules as follows:

[Petitioner] is currently under my medical care. He has had CT scans showing multiple small bilateral pulmonary nodules. They are of unknown etiology, although it is likely to be secondary to years of smoke and toxin exposure. These nodules must be followed to serially to ensure stability.

In a letter dated August 25, 2003, another one of plaintiff's treating physicians, Dr. Philip Wilken, stated the following, in relevant part, with respect to the condition of petitioner's health:

[Petitioner] . . . has a past medical history significant for some lung nodules, carpal tunnel syndrome, herniated lumbar discs, decreased hearing acuity, shortness of breath and knee pains particularly in the left knee. Numerous of these medical problems have been associated likely with work issues. The CT scans of his chest which he follows with Dr. Frankenthaler basically show inflammatory changes which without actual pathologic specimens is difficult to tell if they are cancer or other inflammatory changes. The other issues include carpal tunnel syndrome which appears to be diagnostic on the EMG. The patient also has a history of herniated lumbar discs for which he has seen Dr. Bhanusali. This again has likely been work related. The patient has also numerous pains in his knees particularly in the left knee and most recently is having some right knee pains.

On November 12, 2003, petitioner was examined by the 1-B Medical Board consisting of three independent physicians, including a pulmonologist. The 1-B Medical Board issued the following report denying petitioner's application for disability benefits:

On 11/12/03, the 1-B Medical Board considered the case of [petitioner], a 48 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 [petitioner] for accident disability retirement. [*4]

We reviewed [the BHS Committee] report of 1/7/03, which found the [petitioner] unfit for fire duty with a diagnosis of carpal tunnel syndrome left hand, impingement syndrome left shoulder post subacromial decompression with persistent symptoms. We reviewed Dr. Wiekens [sic] report of 8/25/03, MRI report of lumbar spine, dated 2/19/03, MRI report of left knee, dated 9/11/02, Dr. Frankenthaler's report of 8/20/03, Dr. Hannafin's reports of 9/27/02, 8/30/02, MRI report of left shoulder, dated 4/23/02, operative report, dated 6/12/02, pathology report of 6/13/02, Dr. Rieger's report of 6/12/02, and Dr. Neustadt's reports of 4/10/02, 11/7/97, operative report of 3/6/98, Dr. Israelski's report of 11/24/97, CD-72 reports of 3/26/02, 10/3/96, 4/23/92, 11/10/90, 3/1/88 and the MD-9 record. In addition, the 1-B Medical Board examined the [petitioner's] left shoulder, left hand and wrist on 11/12/03.

Based upon all of the above, it was the unanimous opinion of the 1-B Medical Board that there was insufficient evidence of a disability to the left knee, left hand, wrist and lungs that would preclude full fire duty. Therefore, it is our unanimous recommendation that the applications for disability retirement be denied.

On or about January 27, 2004 a Methacholine challenge test was performed on petitioner and found to be positive. The Board of Trustees thereafter remanded the matter to the 1-B Medical Board to consider the findings related to such test. On March 3, 2004, a further Methacholine challenge test was performed on petitioner and the following report by Dr. Kenneth I. Berger was generated as a result of such test:

[Petitioner] is a 49 year old male fire fighter who is referred for a Methocholine bronchoprovocation study.

Baseline spirometry revealed a reduced FEV1/FVC ratio.

Following inhalation of increasing doses of nebulized Methacholine, there was a progressive fall in the FEV1 which returned to baseline follwoing beonchodilator administration.

IMPRESSION: Baseline sprirometry revealed obstructive dysfunction. There was evidence of bronchial hyper-reactivity during the Methacholine bronchoprovocation at time of test.

In a report dated April 23, 2004, Dr. Frankenthaler stated the following regarding petitioner's pulmonary condition:

[Petitioner] is a patient under my care. He had significant exposure at Ground Zero starting September 2001, he worked there for 6 months for up to several hours a day. He had coughing and dyspnea while working at Ground Zero. Since his exposure he has had persitant [sic] shortness of breath and chest tightness, especially upon exposure to [*5]respiratory irritants and exertion. He was also found to have multiple pulmonary granulomas on CT Scan that can be related to his job as a fire fighter.

[Petitioner] has had symptoms despite ongoing treatment with bronchodilators. He has had pulmonary function tests showing obstructive lung disease and 2 positive methacholine challenge tests.

While it is impossible to say with 100% certainty, [petitioner's] symptoms are likely to be secondary to his exposure at Ground Zero and are likely to be permanent. His medical conditions make [petitioner] unable to perform his duties as a firefighter.

On April 8, 2004, the 1-B Medical Board reviewed the January 27, 2004 Methacholine Challenge as directed by the Board of Trustees and issued the following report based upon such review:

On 4/8/04, the 1-B Medical Board again considered the case of [petitioner]. This case was last reviewed on 11/12/03, at which time the member was denied disability retirement. This case was remanded back to the 1-B Medical Board from the Board of Trustees meeting on 1/29/04, for review of the Methacholine test, dated 1/27/04.

We reviewed the Methacholine Challenge test of 1/27/04 which is positive, however, without being in the context of a chronic or current respiratory symptoms we do not consider this a permanent disability.

Based on the above, it is the opinion of the 1-B Medical Board that there is insufficient evidence of a chronic respiratory condition warranting awarding a Lung Bill. Therefore, it is our unanimous recommendation that the application for disability be denied.

On May 27, 2004, the Board of Trustees remanded the matter again so that the 1-B Medical Board could review the March 3, 2004 Methacholine Challenge test and the April 23, 2004 report of Dr. Frankenthaler.

On May 27, 2004, petitioner was examined by Dr. Michael A. Bauer, a pulmonologist. Upon examination of his chest, petitioner was found to have "[g]ood respiratory effort. Symmetric excursions. No wall masses or tenderness. Percussion is clear. Auscultation shows clear sounds. No crackles, wheezes, or rhonchi." With respect to ancillary studies, Dr. Bauer noted that "[c]hest x-ray shows suggestion of hyperinflation, prominent pulmonary or parenchymal infiltrates are apparent. Spirometry today is normal. Vital capacity is 6.10 liters, 108 percent of predicted; FEV 14.49 liters, 99 percent of predicted." Dr. Bauer reported his overall impression of the petitioner's pulmonary condition as follows:

1. A 49-year-old retired firefighter with current documentation of reactive airways disease. The patient has had positive methacholine challenge tests x2. He seems to be [*6]doing well on Advair Diskus inhaler, and I have recommended that we continue this on an indefinite basis. His current strength is 100/50 one puff twice a day. He is given some samples, and states that he has lots of refill prescriptions at home. Also will continue to use [A]lbuterol 2 puffs as needed for rescue . . . . I would like to see the patient for followup assessment in 6 months; we will repeat spirometry again at that time. He should continue to use his Advair indefinitely until that visit, and he will call me should there be any change in symptoms at all. I agree with his prior pulmonologist that there seems to be a definite temporal relation of onset of symptoms as well as positive methacholine challenge to exposures at Ground Zero following the 9-11 attack.

2. Benign pulmonary nodules. These appear radiographically stable, and no indications for further follow-up at this time.

On November 4, 2004, the 1-B Medical Board, upon review of the Methacholine test performed on March 3, 2004 and the report of Dr. Frankenthaler dated April 23, 2004, determined that it would once again interview and examine petitioner and requested that "he be off medications the day of the examination."

On December 2, 2004 the 1-B Medical Board considered petitioner's case subsequent to its interview and examination of him and issued the following report:

On 12/2/04, the 1-B Medical Board again considered the case of [petitioner]. The case was last reviewed on 11/4/04, at which time the member was deferred.

The 1-B Medical Board interviewed and examined the member remanded back from the Board of Trustees for a lung condition. The member notes that he is on Advair regularly, and Albuterol rescue inhaler rarely. He claims to have persistent cough and shortness of breath. Examination reveals his lungs to be clear today.

It is the opinion of the 1-B medical Board that he undergo complete pulmonary function studies at NYU to include spirometry before and after bronchodilator, lung volumes and diffusion capacity off Advair and other steroids for a period of at least four weeks and that he be re-examined before resuming his medication. It should be noted that he was off Advair for one day prior to this examination, however, he had been on it continuously before that.

On January 7, 2005, complete pulmonary function tests were performed at the NYU Rusk Pulmonary Function Laboratory. Based upon such testing, Dr. Berger, the Medical Director of said laboratory, generated a report which states, in relevant part, as follows:

[Petitioner] is a 49 year old male fire fighter who is referred for evaluation.

Lung volumes are within normal limits. [*7]

The FEV1/FVC ratio is reduced.

Following bronchodilator administration there was improvement in expiratory airflow function.

Pulmonary diffusing capacity is within normal limits.

IMPRESSION: Obstructive airway dysfunction with a positive response to bronchodilator administration at the time of study.

On March 24, 2005, the 1-B Medical Board considered petitioner's case and issued the following report:

On 3/24/05, the 1-B Medical Board again considered the case of [petitioner]. This case was last reviewed on 12/2/04, at which time the [petitioner] was referred to NYU Rusk Institute for complete pulmonary function studies.

The 1-B Medical Board has reviewed the pulmonary function studies from NYU Rusk, dated 1/7/05, and notes that they are entirely normal. The member was interviewed and examined previously and it is our feeling that he does not have a respiratory condition that would preclude full fire duty. Therefore, it is our recommendation that the application for disability retirement be denied.

On April 25, 2005, the Board of Trustees adopted the recommendation of the 1-B Medical Board and denied petitioner accident disability retirement benefits.

On August 18, 2005, the petitioner commenced an Article 78 proceeding challenging the denial of his application for accident disability by the Board of Trustees. In a decision and judgment dated March 27, 2006, the court ordered a trial, pursuant to CPLR 7804(h) to determine medical and factual issues raised by the petition. In a decision and judgment dated March 29, 2006, the court reaffirmed its March 27, 2006 decision to hold such trial.

On April 3, 2006, the parties entered into a written stipulation that: (1) the Article 78 proceeding be marked off the calendar; (2) respondents would withdraw an Order to Show Cause pending before the Appellate Division, Second Department seeking to appeal the judge's prior orders and (3) petitioner's application for accident disability retirement benefits would be remanded back to the 1-B Medical Board for further consideration.

On September 7, 2006, the 1-B Medical Board reconsidered petitioner's application for accident disability benefits and issued a report, which states, in relevant, part that:

On examination of [petitioner] on 12/02/04 there were no objective findings of active asthma. We requested that he undergo repeat PFTs at the Rusk lab after remaining [*8]off of all steroid containing medications for a minimum of 4 weeks and that he be re-examined by the 1-B Board before resuming his medications. We requested this because he was under the influence of steroid medication (Advair) at the time of our examination on this date.

The applicant did not appear for examination by the 1-B Board on 3/24/2005. We reviewed a letter from Dr. Michael A. Bauer dated 7/29/2004. It stated that [petitioner's] pulmonary exam was unremarkable while on his medications; however, there was no mention of an attempt to withhold his medications to determine of he continued to manifest findings of persistent airways inflammation. The 1-B Medical Board needs such information to make a judgment about a permanent pulmonary disability in this case.

We based our final determination in this case on the available evidence at the time which included PFTs performed on 1/07/2005. This study demonstrated normal airflows at normal lung volumes. The technician's note stated that the [petitioner] stated that he had been off Advair and Albuterol for the month prior to this test. If [petitioner] has a persistent form of asthma we could have expected some significant abnormality of his PFTs after being off these medications for a full month. We concluded that [petitioner] has mild intermittent asthma.

We, therefore, sustain our previous decision in the case of [petitioner] that there is insufficient evidence for a permanent pulmonary disability.

In reaching their determination, the 1-B Medical Board also explained their interpretation of pulmonary function tests and various attendant diagnoses as follows:

The diagnosis of asthma and its severity is determined by the applicant's history, examination, response to anti-asthma medication(s) and pulmonary function tests. Methacholine testing is indicated in the infrequent instance where the diagnosis is in question. A positive Methacholine test by itself does not always indicate the presence of asthma. (endnote omitted). If such were the case then it would reasonably be expected that such testing would be performed on all individuals applying to enter the firefighting profession, which is not the case.

A positive Methacholine test can be seen in some individuals who are not asthmatic but have either allergic rhinitis, chronic obstructive pulmonary disease (COPD), congestive heart failure (CHF), cystic fibrosis, or bronchitis (endnote omitted). The biologic response in humans to Methacholine does not mimic or even predict a similar response to the multitude of specific particulate and inhalational substances encountered in fire fighting.

* * *[*9]

Asthma, when active, is associated with inflammatory changes of the airways. (endnote omitted). Objective findings consistent with active inflammation of the airways include typical positive findings on physical examination of the applicant and/or significantly decreased airflows demonstrated by PFTs.

We consider firefighting potentially deleterious to individuals with concurrent active inflammation if their airways. On the other hand, there is no evidence that individuals with mild intermittent asthma have airway inflammation in between episodes or that they are more susceptible to the effects of smoke and other inhaled substances encountered during fire fighting during these quiescent periods than are individuals without asthma (endnote omitted).

* * *

If, in our opinion, the applicant has significant, credible respiratory symptoms plus objective findings of active asthma while receiving little or no respiratory medication and in the absence of an acute respiratory infection or inhalational exposure, we will consider the applicant disabled by persistent asthma and award the Lung Bill.[FN2]

* * *

In general, the 1-B Board uses all the available information in making its decisions regarding Lung Bill applications. In some cases the PFT results alone are sufficient to make a decision to grant the Lung Bill; however, all available information is assessed. In some cases we grant the Bill even when the PFTs are essentially normal because the applicant clearly has a respiratory disability as determined by our evaluation of the history and/or the examination.

The laboratory director (at NYU Rusk Institute) frequently interprets certain abnormalities found on PFTs as "obstructive airway dysfunction at mid and low lung volumes", also referred to as small airways dysfunction, when airflows at normal lung volume, as indicated by the FEV-1 (forced expiratory volume in the first second) and FVC (forced vital capacity), are normal. This observation is commonly made by pulmonologists in interpreting PFTs. It does not, in itself, mean that the member has [*10]disabling chronic obstructive pulmonary disease (COPD) which limits his or her functional capacity nor does it prognosticate that such will eventually be the case. The interpretation is often misleading to a layperson.

In the 1970s, the technical ability to graphically represent maximal breathing effort led to the use of some additional measurements with PFTs. These new numbers were referred to as assessing "small airway function." It was initially hoped that abnormalities with these measurements would discriminate those who would eventually develop COPD from normals. The term "obstructive small airways dysfunction" became popular at that time. Subsequent long-term studies of people with these findings have revealed that there was poor predictability for COPD associated with them.

Thus, the 1-B Board does not consider the isolated presence of small airway dysfunction adequate evidence for a respiratory disability regardless of the use of the term "obstruction" in these cases by the interpreter [of the subject tests].

On the basis of the aforesaid determination of the 1-B Medical Board that petitioner was not entitled to accident disability retirement benefits, the Board of Trustees also denied petitioner such benefits by letter dated October 27, 2006. Subsequently, the petitioner commenced the instant article 78 proceeding seeking a judgment annulling and vacating such determination and granting him the subject accident disability benefits.

"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 [*11]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 that petitioner was not entitled to an accident disability retirement, the 1-B Medical Board considered petitioner's application for same six times, interviewed and examined petitioner, reviewed the pulmonary function and methacholine testing underwent by petitioner and also reviewed the reports of petitioner's treating physicians. In its final report, dated September 7, 2006, the 1-B Medical Board explained, in detail, the tests and other criteria utilized by it in determining whether a lung ailment claimed by a firefighter is disabling for purposes of accident disability retirement benefits and described the process by which it applied such information to petitioner's particular case. Although petitioner argues at length that the subject conclusion of the 1-B Medical Board is based upon its misapplication and misapprehension of the medical evidence, as well as some of the medical literature upon which, in part, it relies, the court is precluded from second guessing the weighing of evidence by the 1-B Medical Board or its resolution of conflicting medical information. Rather, if some credible evidence exists which supports the decision of the 1-B Medical Board, the court is constrained to defer to said determination. Here, the Board performed their own examinations of plaintiff during which he did not demonstrate any active signs of asthma and also interpreted the lung function testing underwent by petitioner to be largely normal with some minor levels of impairment (such as obstructive small airways dysfunction) which were explained as non-disabling by the 1-B Medical Board pursuant to its review of the relevant medical evidence and literature it considered in the course of its deliberative process. Accordingly, given that the court is constrained to apply a narrow standard of review and to sustain the 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]).[FN3] [*12]

As a result, the petition is denied and the instant article 78 proceeding is dismissed.[FN4]

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 with respect to issues relevant to the subject determination of the 1-B Medical Board in the event the matter is remanded by the court to the 1-B Medical Board or if the court grants petitioner's request for a trial.

Footnote 2: New York City Administrative Code § 13-354, also known as the "Lung Bill," 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: The court is mindful that several recent accident disability determinations have been remanded by the Supreme Court in Kings County to the 1-B Medical Board where such accident retirement disability benefits were denied to firefighters whose 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 the determinations in question were found to be unduly conclusory and contradictory with respect to the medical evidence adduced (see e.g. Matter of Tesoriero v Board of Trustees of the New York Fire Dept., 17 Misc 3d 497 [2007]; 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. In the instant case, the court finds that some credible evidence exists to support the subject determination and that the final report of the 1-B Medical Board adequately identified such evidence and explained the reasoning behind its application of the relevant medical evidence and literature it considered as well as the process by which it analyzed and gave weight to various aspects of such evidence.

Footnote 4: Given the dismissal of the petition, the petitioner's request for a trial pursuant to CPLR 7804(h) is denied as moot.