Matter of Samadjopoulos v New York City Employees' Retirement Sys.

[*1] Matter of Samadjopoulos v New York City Employees' Retirement Sys. 2008 NY Slip Op 50828(U) [19 Misc 3d 1123(A)] Decided on April 1, 2008 Supreme Court, New York County Tolub, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 1, 2008
Supreme Court, New York County

In the Matter of the Application of Demetrius Samadjopoulos, Petitioner,

against

New York City Employees' Retirement System, the Trustees of New York City Employees' Retirement System and The City of New York, Respondents.



406071/07



Attorneys for Plaintiff

South Brooklyn Legal Services

John C. Gray, Esq.

Of Counsel:

Gary Shore

Christopher William Dagg

105 Court Street

Brooklyn, NY 11201

(646) 646-3316

Attorneys for Plaintiff

Legal Services for the Elderly

130 west 42nd Street

17th Floor

New York, NY 10036

(212) 391-0120

Attorneys for Defendants

Jeremy I. Huntone

Corporation Counsel

100 Church Street 4th Floor

New York, NY 10007

(212) 788-0303

Walter Tolub, J.

This is an Article 78 proceeding brought by petitioner Demetrius Samadjopoulos seeking to annul the determination of the Board of Trustees (BOT) of the New York City Employees' Retirement System (NYCERS), which denied his application for disability retirement benefits, and to direct BOT to grant him such benefits.

BACKGROUND

On September 11, 2006, petitioner, a 48-year old carpenter with over ten years of service with the New York City Department of Transportation (DOT), filed an application for disability retirement benefits alleging that, as a result of various injuries he suffered at his job, he was no longer able to perform his duties as a carpenter. In his affidavit of August 14, 2007, petitioner stated that he had worked in heavy construction as a scaffold and bridge carpenter. As part of his job, petitioner was required to crawl under roadways and bridges on my hands and knees, work over my head and below my knees, climb dangerous heights on scaffolding, steel beams, and ladders, operate heavy tools with one hand while hanging from a bridge or scaffold with the other, work in excessive heat and cold, in and around dust, bird feces, exhaust and other toxic fumes

(Notice of Petition, Exhibit A, Samadjopoulos Affidavit, at 1).

Petitioner also stated that when he was not working on bridges, he worked in the shop, along with the other carpenters, on various tasks, such as fabricating wedges and other parts to be used during bridge repairs. Petitioner noted that "[a]ll of the work in the shop required the use of machinery such as circular saws, planers, and sanders. Using these tools filled the air with dust" (id. at 4).[FN1]

Petitioner was also one of the first-responders to Ground Zero following the September 11, 2001 attack on the World Trade Center, wherein he worked 12-hour shifts for over six weeks digging through debris, building support structures, driving diesel trucks and using torches to cut steel. Petitioner explained that, as the overall environment at Ground Zero was both "traumatic and toxic," he soon began to suffer respiratory problems (id. at 6). These respiratory problems included burning eyes, congestion, constant dryness in the chest and secretions of black mucus [*2]from his nose.

Petitioner stated that, on November 14, 2001, he began seeing Dr. Jacqueline Moline at Mount Sinai Hospital. Dr. Moline, a physician with experience treating Ground Zero workers, explained to petitioner that, because the toxic dust fumes at Ground Zero caused petitioner to sustain respiratory inflammation and a gastro esophageal condition, he should stop working around dust and fumes. Petitioner noted that, due to toxic fumes and the large amounts of bird feces that are commonly found on bridges, working at his job often exacerbated his breathing problems. Petitioner explained that, if he avoids dusty conditions, he can maintain a relatively normal baseline, but as soon as he enters a dusty or smoky area, he must use an inhaler in order to breathe.

In addition to his respiratory problems, petitioner has suffered at least 11 accidents on the job, which cause him residual pain. As a result, petitioner takes a variety of painkillers and sleep-aids, which make him groggy and incoherent. Such accidents include a scaffold fall, which lacerated his right leg and required him to have shoulder surgery, two separate table saw accidents, wherein he lost 30 percent of the use of his right index finger and 60 percent of the use of his right thumb, a fall into a ditch, wherein he completely tore the ligaments in his left ankle and lost 22 percent of the use of his left ankle, a trip on a vent duct, which resulted in tarsal tunnel syndrome and later required surgery to release his tendons and remove a cyst from his right foot, and a lifting accident, which resulted in a serious back injury.

Petitioner further maintained that he has suffered from bulging disks, sciatica, arthritis, tendonitis, carpal tunnel syndrome, tarsal tunnel syndrome, torn ligaments, as well as gastro-esophageal reflux and respiratory ailments. Sometimes I would have to leave work for months at a time due to extreme pain. In my last year of work I was out for more than half of the year due to my injuries

(id. at 12).

Regarding his present physical state, petitioner stated: Today, I still suffer severe pain in my day-to-day life. I [cannot] return to my former job. I have trouble sitting for even moderate periods of time due to shooting sciatic pain down my leg; my bulging disc shoots pain from my back down to my calf ... Walking, for short distances, can help my back pain, but unfortunately, walking also aggravates my ankle and foot pains ... I can usually manage stairs, but I have to take them slowly. Above all, I can't make any sudden reaching, twisting, or turning movements-which were an everyday requirement of my work

(id. at 13). Petitioner claims that due to his numerous injuries sustained on the job, resulting in various exams, follow-ups, surgical procedures and pain, he is no longer able to perform the tasks required by his job as a carpenter.

In this proceeding, petitioner challenges NYCERS Medical Board's (Medical Board) determination, which was adopted by BOT, that petitioner is not disabled from performing the duties of a carpenter, as a result of the injuries he suffered while in the service of the City of New [*3]York.

DISCUSSION

" It is well-settled that the determination of an administrative agency will be accepted by the courts if it has warrant in the record and a reasonable basis in law'" (Procaccino v Stewart, 32 AD2d 486, 489 [1st Dept], affd 25 NY2d 301 [1969], quoting Willcox v Stern, 18 NY2d 195, 203 [1966]).

As explained in the case of Borenstein v New York City Employees' Retirement System, (88 NY2d 756, 760 [1996]), the award of accidental disability retirement benefits to a NYCERS applicant is a two-step process. The first step consists of fact finding by the NYCERS Medical Board to determine the threshold matter of "whether the applicant is actually physically or mentally incapacitated for the performance of city-service'" (id., quoting Administrative Code § 13-168 [a]). If the Medical Board determines that the applicant is disabled, "it must then make a recommendation to the Board of Trustees as to whether the disability was a natural and proximate result of an accidental injury received in such city-service'" (id.).

Pursuant to RSSL § 605 (b) (1), the second step is only utilized in the event that the applicant has been found to be disabled, and if the applicant has less than 10 years of service at the time the application has been filed. As evidence in the record reveals that petitioner had more than 10 years of service at the time his application was filed, the Medical Board only needed to address the threshold question regarding whether petitioner has the injuries claimed and whether such injuries incapacitate petitioner from the performance of his duties as a carpenter for DOT.[FN2]

"In an article 78 proceeding challenging the disability determination, the Medical Board's finding will be sustained unless it lacks rational basis, or is arbitrary or capricious" (Bornstein v New York City Employees' Retirement System, 88 NY2d at 760; Quill v Ward, 138 AD2d 305, 306 [1st Dept 1988]; Procaccino v Stewart, 32 AD2d at 489). As such, the Medical Board's determination must be sustained as long as it is supported "by some credible evidence and is not irrational" (Rodriguez v Board of Trustees of New York City Fire Department, 3 AD3d 501, 501 [2d Dept 2004]). " Some credible evidence' strikes a proper balance between deference to the Medical Board and accountability to NYCERS members" (Bornstein v New York City Employees' Retirement System, 88 NY2d at 761).

Additionally, contrary to petitioner's assertion, "a determination by the Social Security Administration does not control the retirement determination at issue" (Kalachman v Board of Trustees of the New York City Fire Department Article 1-B Pension Fund, 224 AD2d 619, 620

[2d Dept 1996]; Borenstein v New York City Employees' Retirement System, 88 NY2d at 759).

Respondent argues that this is not a case for judicial intervention, as where there are conflicting medical opinions, it is solely within the Medical Board's province to resolve any conflict between the medical opinions (see Kalachman v Board of Trustees of the New York City Fire Department Article 1-B Pension Fund, 224 AD2d at 620; Santoro v Board of Trustees of New York City Fire Department, 217 AD2d 660, 660 [2d Dept 1995] [courts cannot weigh the [*4]medical evidence or substitute their own judgment for that of the medical board when its determination was based upon credible evidence]; Cammarota v Teachers' Retirement System of the City of New York, 205 AD2d 412, 412 [1st Dept 1994] [conflicting medical evidence addressed by petitioner provided no occasion for judicial interference]). However, the determination of the Medical Board is only conclusive if it has a "rational basis" (id., see also Rodriguez v Board of Trustees of New York City Fire Department, Article 1-B Pension Fund, 3 AD3d at 501-501).

Here, although the Medical Board did consider and address objective sources of medical evidence in making its determination, and it even conducted an interview and a medical examination of petitioner of its own, the determination of the Medical Board, adopted by BOT, which found that petitioner is not disabled for the purposes of performing his job as a carpenter lacks a rational basis, as it is not supported by the medical findings set forth in this case (see Rodriguez v Board of Trustees of New York City Fire Department, Article 1-B Pension Fund, 3 AD3d at 501-502 [Court found that the determination of the Medical Board was not rational where the physicians who examined the petitioner did not conclude that the petitioner's tremors were disabling]).

In the Medical Board Report, dated October 24, 2006, the Medical Board summarized reports from the various physicians who have treated petitioner for his work injuries. These physician reports were consistent with petitioner's descriptions of the multiple and serious injuries he suffered while in the service of DOT, as alleged in petitioner's affidavit.

The Medical Board Report also stated that petitioner appeared before the Medical Board members for an interview and examination. Regarding the Medical Board's interview with petitioner, the Medical Board Report stated that

At the time of the interview, the patient states he is disabled due to trouble sitting or standing for more than five minutes at a time with pain in the left lower back, which radiates into the buttocks, back of the thigh and mid calf. He is also disabled due to tingling and numbness in both hands ... especially with swinging a hammer or using power tools. He also complains of sharp pain in the right medial aspect of the heel .... He also states that he has had trouble breathing especially with dust, gasping at times the shortness of breath with climbing .... His low back pain, he describes as fairly constant and sharp. It is better when he is supine. Occasionally becomes sharper with movement .... The hand symptoms are rarely absent with right hand getting numb with swinging a hammer and he has dropped things with his right hand. The patient states he had an arthroscopy of the left knee one week ago .... He often awakens at night from pain in the right foot and also pain in the right third, fourth and fifth fingers. He is able to do things around the house such as wash and dress himself, do laundry, dishes, picks up his daughter from school, takes her for walks, he is able to drive, he does not have trouble with his hand grips

(id. at 5-6).

The Medical Board Report also described its own examination of petitioner, which entailed palpitating petitioner's extremities and having petitioner perform such tasks as lifting his leg and opposing and flexing his thumb. It should be noted that the Medical Board's evaluation of petitioner did not include any tests to address petitioner's claims that he is unable to work [*5]around dust, bird feces, exhaust and other toxic fumes without activating his respiratory ailments. Remarkably, petitioner stated that his entire Medical Board exam lasted no more than 15 minutes, only a few questions were asked of him, and no respiratory exam was conducted. Thus, the examination of petitioner was so cursory and limited in its breadth, that it could in no way predict whether petitioner was able to continue his job as a carpenter, wherein he was required to crawl under roadways and bridges, work over his head, climb dangerous heights, and operate heavy tools.

Moreover, the Medical Board Report, relied on by BOT in denying petitioner's application, merely summarized the physician reports submitted by petitioner, as well as its own evaluation of petitioner's medical state, and does not set forth the Medical Board's reasons for concluding that petitioner is not disabled from performing his duties as a carpenter. As such, the Medical Board's final determination is not in "such form as to permit adequate judicial review" (Perkins v Board of Trustees of the New York Fire Department Article 1-B Pension Fund, 59 AD2d 696, 697 [1st Dept 1997]). An agency's failure "to set forth an adequate statement of the factual basis for the determination forecloses the possibility of fair judicial review and deprives the petitioner of his statutory right to such review" (Montauk Improvement, Inc. v Proccacino, 41 NY2d 913, 914 [1977]).

In the section of the Medical Board Report titled, "Findings and Conclusions," the Medical Board stated only that

The Medical Board finds that the documentary and clinical evidence failed to substantiate that Demetrius Samadjopoulos is disabled from performing the duties of Carpenter with the Department of Transportation based on the symptoms the disability has applied for

(Notice of Petition, Medical Board Report, Exhibit M, at 7).

Despite petitioner's assertion that an outright approval of his disability retirement application is the proper relief to be afforded in this case, in cases where the court finds the record deficient or the determination of the fact finder unsupported, as in the instant case, the proper relief is to grant the petition to the extent of annulling the findings of the Medical Board and remitting the matter to the finder of fact prescribed by statutory law, which in this case is respondent BOT, for new findings by the Medical Board and a new determination by respondent (see Rodriguez v Board of Trustees of New York City Fire Department, Article 1-B Pension Fund, 3 AD3d at 502; Brady v City of New York, 22 NY2d 601, 607 [1968]).

CONCLUSION AND ORDER

For the foregoing reasons, it is hereby

ADJUDGED that the application by petitioner Demetrius Samadjopoulos seeking to vacate and annul a determination of respondent Board of Trustees (BOT) of the New York City Employees' Retirement System (NYCERS), which denied petitioner's disability retirement benefits, is granted to the extent of annulling the findings of the Medical Board and remitting the matter to respondent BOT for new findings by the Medical Board, and a new determination by BOT.

DATED:

ENTER:

______________________ [*6]

WALTER B. TOLUB J.S.C. Footnotes

Footnote 1:It should also be noted that, in his affidavit dated July 17, 2007, John Motylewski, petitioner's supervisor, reiterated petitioner's description of his job duties as carpenter during his employment by DOT.

Footnote 2:It should be noted that, although petitioner argues that he is eligible for disability retirement allowance under the World Trade Center Disability Law, at oral argument, his attorney conceded that this is an ordinary disability claim.