Matter of Seiferheld v Kelly
Annotate this CaseDecided on November 3, 2008
Supreme Court, New York County
In the Matter of the Application of James J. Seiferheld, Petitioner,
against
Raymond Kelly, as the Police Commissioner of the City of New York, and as Chairman of the Board of Trustees of the Police Pension Fund, Article II, THE BOARD OF TRUSTEES and the Executive Director of the Police Pension Fund, Article II and THE CITY OF NEW YORK, Respondents.
114351/07
Seelig & Ungaro, LLP, New York City, (Robert A. Ungaro of counsel) for petitioner. Michael A. Cardozo, Corporation Counsel, New York City (Karen J. Seemen of counsel) for respondents.
Lottie E. Wilkins, J.
Petitioner brings this proceeding pursuant to CPLR article 78 to annul the
determination of respondent Police Pension Fund which suspended petitioner's line of duty
accident disability retirement benefits upon a finding that petitioner was fit to return to duty as a
New York City Police Officer. Petitioner claims that the determination that he was fit to return to
duty and the subsequent suspension of accident disability retirement benefits was arbitrary,
capricious, and in violation of state and federal law. In the alternative, petitioner asks the Court
to direct respondents to re-hear petitioner's case. Respondents oppose the petition claiming that
the finding at
issue was supported by credible evidence and therefore was neither arbitrary nor
[*2]capricious.
Petitioner James J. Seiferheld joined the New York City Police Department as a Police Officer on June 30, 1992 at which time he also became a member of the Police Pension Fund. Petitioner claims to have suffered a number of line of duty injuries during the course of his career as a Police Officer, among them: Petitioner tripped and fell on September 2, 1995 while responding to radio call causing injury to his neck and back. On December 19, 1996, petitioner was involved in a motor vehicle accident causing whiplash as well as back and shoulder pain. Petitioner again slipped on a set of stairs on December 16, 1997 injuring his left arm. On May 13, 2000, petitioner tripped over a wire while responding to a radio call and fractured his right middle finger. During the attacks of September 11, 2001, petitioner was assigned to the World Trade Center site where he claims to have suffered emotional damage as well as respiratory problems.
As a result of the above injuries, petitioner received a number of medical diagnoses including cervical sprain as a result of the accident on September 2, 1995 and straightening of the lumbar curve of his spine with spasm. A 2004 MRI of petitioner's lungs revealed opacification of the tissue. Petitioner also had surgery on his left biceps on May 12, 1998, presumably related to his trip and fall injury of December 16, 1997.
The line of duty injury at issue in this case occurred on January 6, 2003. On that date, petitioner slipped and fell on ice while assigned to the NYPD Harbor Unit. Following an MRI of his right shoulder, petitioner was diagnosed with a deformity of the humeral head, apparently secondary to a healed Hill-Sachs fracture, as well as an anterior and posterior tear of the labrum with paralabral cyst formation. On March 5, 2003 petitioner underwent arthrosporic surgery consisting of a synovectomy, debridement of the defect on the posterior aspect of the glenoid, and repair of the labral tear.
On December 18, 2003 petitioner was placed on limited/restricted duty by the NYPD District Surgeon. At the same time, petitioner submitted an application to the Police Pension Fund seeking Accident Disability Retirement (ADR) benefits. As often happens, the Commissioner of the Police Department submitted an application seeking to retire petitioner with Ordinary Disability Retirement (ODR) benefits. On March 9, 2004 the Medical Board of the Police Pension fund performed a medical examination of the plaintiff. Based on the results of that examination, as well as review of the medical records submitted and petitioner's statement, the Board concluded that there were significant objective findings precluding petitioner from performing the duties of a Police Officer. The Medical Board found the competent producing cause of petitioner's disability to be his accident of January 6, 2003. Based on its findings, the Medical Board recommended approval of petitioner's application for ADR and disapproval of the [*3]Commissioner's application for ODR.
On May 12, 2004 the Board of Trustees of the Police Pension Fund voted to grant petitioner's application for ADR benefits. Petitioner was notified that his accident disability retirement would be effective as of May 31, 2004. However, a month later, on June 14, 2004, the Absence Control and Investigations Unit of the NYPD Medical Division opened an investigation of petitioner in response to a complaint received by the Internal Affairs Bureau that petitioner was performing construction work.
In an investigation that spanned more than two years, petitioner was observed by the Absence Control and Investigations Unit performing construction work specifically window and siding installation on numerous occasions. On June 24, 2004 petitioner was observed installing siding on a house. Petitioner was again observed installing siding on September 2, 2004 and once more on October 12, 2004. On October 25, 2004 petitioner was observed carrying a metal ladder while working at a job site. The Absence Control and Investigations Unit also compiled a surveillance video that shows petitioner working at various construction sites on different days, a copy of which has been made part of the record herein.
On November 11, 2004 the Commanding Officer of the NYPD Medical Division recommended to the Chief of Personnel that the Safeguards on Disability Retirement provision, codified in NYC Administrative Code § 13-254, be invoked. The recommendation was officially forwarded to the Police Pension Fund by the office of the Chief of Personnel. Thereafter, on December 8, 2004, the Board of Trustees of the Pension Fund remanded petitioner's ADR application back to the Medical Board for reconsideration.
On May 25, 2005, petitioner was examined a second time by the Medical Board. As part of its reconsideration, the Medical Board also reviewed previously submitted medical records as well as some new records submitted by petitioner and the surveillance videotape compiled by the Absence Control and Investigations Unit. The memo generated by the Medical Board following this re-examination stated that petitioner had improved dramatically since the previous exam and that he was no longer disabled from full duty as a Police Officer. As a result, the Medical Board rescinded its prior recommendation that petitioner's application for ADR be approved, and instead recommended that both petitioner's application for ADR and the Commissioner's application for ODR be disapproved.
Rather than adopt the recommendation of the Medical Board, the Board of Trustees of the Pension Fund remanded petitioner's application back to Medical Board for further review on November 9, 2005. Petitioner was once again seen by the Medical Board on February 14, 2006. Once again, the Medical Board recommended denial of petitioner's ADR application. [*4]
During the Spring of 2006, the Absence Control and Investigations Unit continued its investigation of petitioner's activities. On April 5, 2006 a sergeant from the Unit interviewed a doctor who had hired petitioner to replace the roofing and siding on his office building. The doctor provided details of the scope of the work, which included window installation, and indicated that petitioner did not appear to be disabled at the time. Petitioner was again observed performing construction work on April 6, 2006 and again on June 2, 2006. In addition to its observations of petitioner, the Absence Control and Investigations Unit obtained documents from the New York Department of State showing that the companies for which petitioner had worked, Costal Siding & Roofing, Inc. and Costal Siding, Inc., were incorporated by petitioner's wife, as president, on April 28, 2004 and June 9, 2005, respectively.
On July 11, 2006 petitioner's attorneys submitted medical release forms and a memorandum of law to the Police Pension Fund Board of Trustees. Following these submissions, the Board of Trustees again remanded petitioner's ADR application to the Medical Board for consideration of new evidence. After reviewing the new evidence, interviewing petitioner, and conducting another medical examination, the Medical Board concluded on September 19, 2006 that petitioner did not exhibit significant objective changes since his last examination at which he was found to have made a significant recovery from his past injuries. As a result, the Medical Board reaffirmed its prior recommendation that petitioner's application for ADR be denied and that the Commissioner's application for ODR likewise be denied.
On December 8, 2006 petitioner's attorney submitted a letter to the Police Pension Fund Board of Trustees setting forth petitioner's argument in favor of his ADR application. Thereafter the NYPD Absence Control and Investigations Unit submitted a report to the Board of Trustees summarizing its investigation of petitioner. The report detailed the occasions on which petitioner had been observed performing construction work and a summary of interviews with clients of Costal Windows & Siding, Inc. In response, petitioner's attorney submitted a letter on March 13, 2007 complaining that he had not received a copy of the surveillance video and had therefore been deprived of an opportunity to comment on it. After receiving a copy of the surveillance video, petitioner's attorney sent another letter on April 4, 2007 asserting that there were discrepancies between the investigative reports and the findings of the Medical Board.
In its final review of petitioner's application on April 11, 2007, the Board of Trustees of the Police Pension Fund voted to disapprove petitioner's application for ADR benefits by a vote of seven to one, with one member abstaining. On May 2, 2007 the Pension Fund notified the NYC Department of Citywide Administrative Services that, pursuant to NYC Administrative Code § 13-254, the prior determination granting petitioner's ADR application had been rescinded and that petitioner was again fit for [*5]duty as a Police Officer. As a result, petitioner was placed on a "Departmental Special Preferred List" for consideration for the position of Police Officer with the NYPD, as required by NYC Administrative Code § 13-254.
What happened next does not specifically form the basis of petitioner's article 78 challenge, but it does inform the current predicament. On July 6, 2007 the NYPD Chief of Personnel advised petitioner that he had failed a mandatory pre-hiring drug screening by testing positive for cocaine use. As a result, petitioner was deemed "not qualified" for the position of Police Officer. The disqualification also precluded petitioner from eligibility for most other civil service positions.
In a memo dated July 12, 2007, the New York City Law Department, Pensions Division,
advised the Police Pension Fund that petitioner's disability pension should be suspended
notwithstanding the fact that petitioner had tested positive for drug use and could no longer be
considered for the position of Police Officer. Acting on that recommendation, the Police Pension
Fund notified petitioner that his disability pension had been suspended as of July 2007 on
grounds that he was no longer disabled. Having no disability pension and no prospect of City
employment, petitioner commenced this article 78 proceeding.
Discussion
Petitioner claims that the suspension of his Accident Disability Retirement pension benefits under color of NYC Administrative Code § 13-254 was arbitrary and capricious. Specifically, petitioner argues that the determination that he was no longer disabled was contrary to the weight of the evidence which established that he was (and presumably still is) disabled. Moreover, petitioner argues, the Police Pension Fund misapplied the provisions of the Safeguards on Disability Retirement statute, NYC Administrative Code § 13-254, in reevaluating his original application and further violated the statute by not offering him employment with the City after he was deemed fit to return.
On the issue of weight of the evidence, petitioner argues that the determination of the Medical Board that petitioner was fit to return to duty was based not on reliable medical evidence or the Medical Board's own examinations but rather on the contents of the investigation conducted by the Absence Control and Investigations Unit. Petitioner goes on to assert that the investigation itself was flawed in that it misrepresented both the frequency with which petitioner was observed actually performing construction work and the physical strenuousness of the work itself. As a result, petitioner claims, the determination that petitioner was fit to resume duty was the product of a misleading investigation rather than a justifiable conclusion based on credible medical evidence (see, Matter of Meyer v Bd. of Trustees, 90 NY2d 139 [1997]). [*6]
Respondents counter that the determination that petitioner was fit to return to duty was based on credible medical evidence. In determining whether a police officer is fit to return to duty under the Safeguards on Disability Retirement statute, respondents assert that the Medical Board is required to utilize the same procedures and standards as those used to determine whether an officer is disabled in the first instance (citing, Holzberg v Kelly, 13 AD3d 280 [1st Dept. 2004]). As long as some credible evidence exists that the officer is fit to return to duty, then the finding of the Medical Board is not arbitrary or capricious (see, Matter of Borenstein v New York City Employees Ret. Sys., 88 NY2d 756 [1996]). With respect to petitioner, respondents contend that the determination of the Medical Board was based on review of medical records, as well as the various physical examinations and interviews conducted which showed that he was fit to return to duty, in addition to the results of the Absence Control and Investigations Unit investigation. Respondents point to specific instances where the Medical Board refers to findings based on its own physical examinations and review of medical documents to support the conclusion that petitioner was fit to return to duty.
Separate from the evidence issue, petitioner also argues that respondents misapplied the Safeguards on Disability Retirement provision by ignoring directives contained in the statute which require a pension fund to provide a certain minimum income to a disability beneficiary pending re-appointment to City service. Specifically, petitioner points to language in the statute which requires that, when a beneficiary is engaged in outside employment at the time the determination that he or she is fit to return to service is made, or even if the beneficiary is returned to City service, the pension fund must nonetheless adjust its payments to maintain the beneficiary at a specified level of income (see, NYC Administrative Code § 13-245 [a]). Thus, according to petitioner, a pension fund does not have statutory authority to completely suspend benefits just because there has been a finding that the beneficiary is fit to return to City service. Doing so, according to petitioner, amounts to an illegal impairment of his contractual right to pension benefits (see, Day v Mruk 307 NY 349 [1954]).
In opposition to this argument, respondents counter that, while NYC Administrative Code § 13-254 does not specifically provide for the suspension of disability pension benefits, such suspension is nonetheless mandated by the provisions of NYC Administrative Code §§ 13-202 and 13-206. More particularly, respondents rely on § 13-206 which mandates that a pension fund may only pay a disability pension to a member whose mental or physical disability has been certified by the Medical Board (see, NYC Administrative Code § 13-206). Although respondents concede that the Safeguards on Disability Retirement provision does not contemplate this particular situation, where a beneficiary is disqualified from City service by failing a drug test, [*7]they do point to language in that section which contemplates that benefits may be suspended in their entirety (see, NYC Administrative Code § 13-254 [b] [providing for suspension of benefits following a beneficiary's refusal to submit to a medical examination]). Respondents further argue that public policy considerations militate in favor of a suspension of benefits under these circumstances.
Turning to the evidentiary question first, this Court finds that the determination that petitioner was no longer suffering from a disability was based on credible evidence compiled by the Medical Board. That being the case, this Court is not empowered to re-weigh the evidence in the record and substitute its own judgment for that of the Pension Fund Board of Trustees (see, Matter of Canfora v Bd. of Trustees of the Police Pension Fund, 90 AD2d 751 [1st Dept. 1982]). A somewhat closer case might be presented if it appeared that the Medical Board's determination was based entirely (or even predominately) on the results of the investigation done by the Absence Control and Investigations Unit, but here there was extensive review of medical records both before and after the original disability determination as well as the results of several medical examinations showing that petitioner was physically capable of returning to duty. At best, the Absence Control investigation provided an impetus for reviewing petitioner's case but it did not provide the exclusive basis for the determination that petitioner was fit to return to duty.
This Court also does not agree with petitioner's suggestion that the investigation was somehow misleading or improper. To the contrary, it was rather diligent and thorough. While it is true that many of the observations undertaken by the investigators did not show petitioner engaged in construction work, the length and frequency of those observations convincingly established that petitioner was engaged in regular employment as a window replacement and siding contractor and that he was called upon to do strenuous physical labor involving his right arm and shoulder. In this regard, the surveillance video compiled by the Absence Control and Investigations Unit is compelling. Petitioner's efforts to disqualify this evidence or to diminish its impact are unpersuasive.
The fact remains, however, that even without the investigative evidence, the determination of the Medical Board that petitioner was no longer disabled was supported by ample evidence derived from physical examinations and contained in the medical records reviewed. Therefore, the challenged determination was neither arbitrary nor capricious and will not be disturbed.
The issue presented by the later suspension of petitioner's disability benefits presents a closer question. Both petitioner and respondents agree that subsection "a" of the Safeguards on Disability Retirement statute does not explicitly authorize suspension of benefits under any circumstances (see, NYC Administrative Code § 13-254 [a]). And [*8]while subsection "b" does provide for a total suspension of benefits, it does so as a penalty for refusing to comply with the physical examination requirements of the previous subsection.
The language of subsection "a" describes a regime whereby a beneficiary who has been found to be no longer disabled from City service is to be placed on a preferred eligible list for future employment. The statute further contemplates that, if the beneficiary is gainfully employed outside of City service at the time such a finding is made, then his or her benefits shall be reduced to a level below the maximum salary for the title next higher than that held by the beneficiary at the time he or she was retired (see, NYC Administrative Code § 13-254 [a]). These provisions, however, do not contemplate a situation where the beneficiary refuses to return to City service after being deemed fit to return or a situation like the one presented here where the beneficiary is disqualified from City service for reasons unrelated to the physical or mental ability to work.
Notwithstanding the absence of specific statutory language authorizing the suspension of benefits for an individual who either refuses to return to City service or is subsequently disqualified, such a result is necessarily implied by the overall statutory scheme. It appears to this Court that the benefit reduction provisions detailed in subsection "a" were intended only as a stopgap measure to prevent overpayment of disability pension benefits pending a return to City service. They do not provide a permanent solution when a beneficiary is deemed fit to return to work but for some reason does not. The eventual suspension of benefits in such a situation must have been an intended consequence, for if it were not, then any beneficiary could force the continuation of benefits even after being deemed no longer disabled by simply refusing to return to City service. Such a result would clearly be inconsistent with the fundamental goals of the Safeguards on Disability Retirement provisions.
The fact that petitioner in this case did not willfully refuse to return to City service but instead disqualified himself as a result of drug use does not compel a different result. The underlying considerations are the same: i.e., by not returning to City service petitioner would continue to receive full disability pension benefits even though he had been deemed to be no longer disabled. Thus, without the potential for the eventual suspension of disability retirement benefits subsequent to a finding of fitness to return to duty, the Safeguards on Disability Retirement provision would have no meaningful effect as to those individuals who do not return to City service.
Petitioner was permissibly found to be fit to resume his duties as a New York City Police Officer based upon credible evidence before the Medical Review Board that his condition had substantially improved since the original determination that he was disabled. As a result of circumstances wholly unrelated to his physical or mental ability [*9]to return to work and, more importantly, unrelated to respondents' intention to return him to his duties he was deemed ineligible for re-employment as a result of his own disqualifying activities. These circumstances, as unusual and sui generis as the facts hopefully are, do not justify a result whereby petitioner would continue to receive full accident disability retirement benefits and thereby reap a reward from his own dishonorable actions. Accordingly, it is
Ordered and adjudged that the petitioner's petition is denied and the proceeding dismissed.
This constitutes the decision and judgment of the Court.
Dated: November 3, 2008
_______________________________________
Lottie E. Wilkins, J.S.C.
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