Ridge Rd. Fire Dist. v Schiano
Annotate this CaseDecided on April 2, 2008
Supreme Court, Monroe County
The Ridge Road Fire District, Petitioner,
against
Michael P. Schiano, as Hearing Office Designated Pursuant to a Collective Bargaining Agreement between the Ridge Road Fire District and the Ridge Road Professional Firefighters Association IAFF, Local 3794, International Association of Firefighters, AFL-CIO, Kevin Nowack, and the Ridge Road Professional Firefighters Association, Iaff, Local 3974, International Association Of Firefighters, AFL-CIO, Respondents
2006/02089
APPEARANCES:
Coughlin & Gerhart, LLP
20 Hawley Street
P.O. Box 2039
Binghamton, New York 13902-2039
Appearing on behalf of the petitioner
By: Mary L. Conrow, Esq., of Counsel
Trevett, Cristo, Salzer & Andolina
2 State Street, Suite 1000
Rochester, New York 14614
Appearing on behalf of the respondents
By: Lawrence J. Andolina, Esq., of Counsel
Evelyn Frazee, J.
Respondent Kevin Nowack (Nowack), a firefighter employed by petitioner Ridge Road Fire District (Fire District), sought benefits pursuant to General Municipal Law §207-a(1) for injuries allegedly sustained during the course of his employment on November 7, 2002. The Fire District denied Nowack's application on the ground that the injury did not occur while on duty nor was there any indication that Nowack's actions while on duty would have contributed to his condition. In a subsequent letter to Nowack, the Fire District stated that Nowack's present problem was due to an earlier injury sustained on August 4, 2002. Pursuant to the terms of the applicable collective bargaining agreement between the Fire District and respondent union, Nowack appealed the Fire District's determination and a hearing was held before hearing officer Michael P. Schiano (Schiano).
On January 18, 2005, Schiano issued a decision overturning the Fire District's decision and awarded General Municipal Law §207-a(1) benefits to Nowack. The Fire District brought a proceeding pursuant to CPLR Article 78 challenging the standard employed by Schiano. This Court determined that Schiano should have utilized the standard of whether the Fire District's determination was supported by substantial evidence rather than the standard of whether or not substantial evidence was presented to override the Fire District's determination. The matter was remanded to Schiano, who on October 31, 2005, issued a second decision determining that the denial of Nowack's application was not supported by substantial evidence. The Fire District thereafter commenced this CPLR Article 78 proceeding challenging Schiano's determination.
The Fire District argued that the matter should be transferred to the Appellate Division, Fourth Department pursuant to CPLR §7804(g) on the ground that the petition raised a substantial evidence question. After this Court issued an order transferring the matter, the Appellate Division (Ridge Road Fire District v Schiano, 41 AD3d 1219 [4th Dept 2007]) determined that Schiano's determination was the result of a hearing conducted pursuant to the terms of the collective bargaining agreement not pursuant to direction by law (CPLR §7803[4]) and, therefore, should not have been transferred. The transfer order was vacated and the matter remitted for disposition on the merits.
DISCUSSION
In order to receive General Municipal Law §207-a disability benefits, Nowack had to demonstrate a causal connection between the performance of his duties and his back injury (see Matter of Theroux v Reilly, 1 NY3d 232 [2003]; County of Orange v Werner, 28 AD3d 761 [2nd Dept 2006]). Pre-existing non-work related conditions do not bar recovery where it is demonstrated that the job duties were a direct cause of the disability (see White v County of Cortland, 97 NY2d 336, 340 [2002]; Schmidt v Putnam County Office of the Sheriff, 2008 WL 740409 [2nd Dept, 2008]).
The issue before the Court is whether the hearing officer's decision that the Fire District's determination was not supported by substantial evidence is arbitrary, capricious [*2]or irrational. In Shuman v New York State Racing and Wagering Board, 40 AD3d 385, 385-386 (1st Dept 2007), the Appellate Division, First Department, articulated the substantial evidence standard as follows:
Substantial evidence, which has been described as a "minimal standard" (Matter of FMC Corp. [Peroxygen Chems Div.] v Unmack, 92 NY2d 179, 188 [1998]; Matter of Joseph v Johnson, 27 AD3d 563 [2006]), or as constituting a "low threshold" (Matter of Patricia Ann Cottage Pub, Inc. v Mermelstein, 36 AD3d 816, 818 [2007]), must consist of such relevant proof, within the whole record, "as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (300 Gramatan Ave. Assoc., 45 NY2d at 180, see also Matter of Star Rubbish Removal Corp. v Martinez, 15 AD3d 587, 588 [2005]). The Court of Appeals has noted that substantial evidence "requires less than clear and convincing evidence' . . ., and less than proof by a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt'" (FMC Corp., 92 NY2d at 188, quoting Matter of Carriage House Motor Inn v City of Watertown, 136 AD2d 895, 895 [1988] and 300 Gramatan Ave. Assocs., 45 NY2d at 180-181). Indeed, "as a burden of proof, it demands only that a given inference is reasonable and plausible, not necessarily the most probable'" (Matter of Miller v DeBuono, 90 NY2d 783, 793 [1997], quoting Borchers and Markell, New York State Administrative Procedure and Practice §3.12 at 51 [1995] [emphasis added]; see also Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]), and the courts may not weigh the evidence or reject the conclusion of the administrative agency where the evidence is conflicting and room for choice exists (Berenhaus, 70 NY2d at 444; Matter of Stork Rest. v Boland, 282 NY 256, 267 [1940]; Matter of Acosta v Wollett, 55 NY2d 761 [1981]; Matter of Verdell v Lincoln Amsterdam House, Inc., 27 AD3d 388, 390 [2006]).
Nowack testified and presented the testimony of Dr. Maxwell, the medical reports of Dr. Shah and Dr. Robb, and various medical records which were also admitted into evidence. An IME of Dr. Miller was marked as an exhibit and referred to during testimony. The Fire District presented testimony of Chief Harold Phillips (Phillips), Battalion Chiefs Thomas Chennell (Chennell) and Alan Bubel (Bubel) and the testimony of Dr. Silverman as well as his 16-page medical report.
Nowack testified that while driving the Quint on November 7, 2002, the air suspension seat slammed all the way to the bottom after hitting a pothole, a manhole cover, or a low spot in the road. He testified he felt the seat elevate and shoot right down to the bottom. He claims he felt a tightness or twinge in his lower back. When he returned to the firehouse, he felt tightness and discomfort and something down his right leg. Nowack testified he reported to Bubel. Nowack did not testify any further with regard to the injury sustained on November 7, 2002 and did not testify at all about the injuries he sustained in 1993, 1997, or August, 2002.
Phillips testified that he manages the Fire District and has oversight of the fire [*3]trucks, including the Quint. He testified that the Quint is custom built and that they went with the air seat to cushion the ride for the firefighters.
Chennell testified that he is in charge of maintenance of vehicles and maintenance programs. He described how the air cushion seat on the Quint truck operates and testified that each driver is trained to operate the Quint and the air seat. According to Chennell, he has never had any complaints in reference to the operation of the seat. He testified that if the air releases from the seat, it would have to be reinflated manually to come back to its position. Sometime after the November, 2002 incident involving Nowack, Chennell was made aware of an alleged malfunction of the seat and called the district mechanic Bob Floyd from Floyd Truck Maintenance and a representative from the truck manufacturer, RD Murray Truck Manufacturer. Both companies checked the seat but found no problem with it.[FN1]
Bubel testified that he oversees and approves all incident reports and makes sure an injured employee receives appropriate medical care. Bubel testified that when he saw Nowack at about 10:00 or 11:00 p.m. on November 6, 2002, Nowack looked fine. Everyone then went to bed. Bubel next saw Nowack in the kitchen after they had returned from a call that took place between 4:55 and 5:13 a.m. on November 7, 2002. Bubel testified that Nowack looked uncomfortable while standing in the kitchen and, upon inquiry, Nowack responded that he began experiencing back pain while he was driving the Quint. Bubel indicated that Nowack did not mention any problem with the seat malfunctioning. Bubel transported Nowack to Park Ridge Hospital for evaluation. Bubel testified that he was familiar with the road area where Nowack stated he began experiencing pain, that the area was newly paved in the summer of 2002, and that he was unaware of any potholes or bumps in the road.
The Doctors
Dr. Maxwell, a neurosurgeon, testified that he first began treating Nowack on April 23, 2003. Nowack had been under the care of Dr. Shah for lumbar back pain and sciatica and had also treated with Dr. Robb, his primary care physician. Dr. Maxwell obtained a history from Nowack which included injuries to his low back in 1993 (when the wheels came off an ambulance he was driving), twisted back getting on/off fire truck in 1999 which resolved in weeks to months, and low back pain in August, 2002.
Dr. Maxwell reviewed two MRIs conducted on August 14, 2002 and November 22, 2002. In his April 25, 2003 report, Dr. Maxwell stated that these MRIs showed an abnormal disc at the L4-5 with collapse of the disc and bulging of the disc backward into the spinal canal. Following an x-ray and myelogram in May, 2003, Dr. Maxwell reported that they showed disease and collapse at L4-5 disc level. He proposed fusion surgery which was performed on August 5, 2003. Dr. Maxwell last saw Nowack on April 19, 2004, at which time he still had back pain, was undergoing therapy, and working with [*4]restrictions. Dr. Maxwell testified that the accident at issue (November 7, 2002) caused a substantial amount of the injury that he treated.
On cross-examination, Dr. Maxwell testified that he did not think Dr. Shah's or Dr. Robb's medical notes were forwarded to him and that, in any event, he did not read them and his diagnosis was not based upon their medical records. Dr. Maxwell acknowledged that Nowack's description of the accident as a pretty violent jarring played a large part in his diagnosis and that if Nowack had just hit a minor bump, his diagnosis might change. He further stated that it was his understanding that Nowack was asymptomatic prior to November 7, 2002, based on information provided by Nowack and that if he were symptomatic before the latest injury, his opinion would change. Dr. Maxwell also testified on cross-examination that neither the degenerative collapse nor the protrusion of the L4-5 disc was caused by the November 7, 2002 accident, but was pre-existing. When asked on cross-examination what was caused by the November 7, 2002 accident, Dr. Maxwell testified:
What I think he had was a degenerated disc with some bulging to it. That was bulging that was fastened together enough that his symptoms were a low level. I think when he had what I interpreted as a somewhat violent and sudden acceleration/deceleration injury to his back on the fire truck, I think he disattached or made unstable a pre-existing degenerative disc at L4-5. And I think the motion, the frictional forces that were set up when he had his injury of November 2002, put him in a position where he was unable to glue back together, fibrosis to heal and the L4-5 disc, that rendered him constantly thereafter symptomatic.
The record also contains a letter dated January 21, 2003 from Dr. Shah, a neurosurgeon, to Phillips stating in part:
Kevin Nowack is my patient and I am replying to your letter dated 01/16/03. Kevin does have a low back problem with a disc herniation that will need some surgical correction. I have reviewed his history in detail. Apparently on 11/08/99 he had a fairly bad work injury for which he was out of work for three months and then returned to light duty work for two months before he could do his regular work. Since then he has continued with his back problem, but somewhat accepted it and did not seek any further treatment. In August 2002 he had re-aggravation of his pain. The MRI did reveal a disc protrusion, which got further aggravated on 11/07/02, when the disc was protruding out much further and this will now need some surgical attention.
In summary, I feel the patient's present problem is directly related to his work injury of 1999. I hope the above information suffices. I would also like to add that the patient was seen by Dr. Sewall-Miller, who is a physician from State Insurance Fund and he also feels the cause of the related injury of 11/07/2002 appears to be a re-aggravation of the injury dating back to 11/08/99. As the patient was having continuing intermittent [*5]problems with back and right leg radiation that led to the MRI of 08/14/02. This MRI did show a degenerative right paracentral disc protrusion at L4-5 with deformity of the right anterolateral thecal sac. The subsequent follow-up MRI of the injury of 11/07 showed an apparent slight increase in the size of the disc herniation with impingement on the right L5 nerve root.
An undated letter report of physician's assistant Edward Goldstein for Dr. Robb to Phillips states:
Mr. Nowacks present injury does not relate to the injury of November 8, 1999, which was a Thoracic muscle strain. The present injury is an extension of an original injury from August 04, 2002. He was first seen here on the 5th of August. At that time he had a bulging disc at the L4-5 level but no frank herniation or nerve root compression. The injury that caused the herniation occurred in November of 2002, while riding in a fire truck.
Dr. Silverman testified on behalf of the Fire District. He reviewed the available medical records of Nowack going back to 1993 and prepared a 16-page report dated September 2, 2003. According to Dr. Silverman, these showed that Nowack injured his back on March 27, 1993, when the ambulance he was driving lost a wheel. Nowack was diagnosed by Dr. Robb as having an acute lumbar sprain and ligamentous sprain of the lumbosacral region and was cleared to return to work on May 21, 1993. Dr. Silverman also noted a March 27, 2003 x-ray which showed an old pre-existing fracture in the L-3 articulating process. The medical records also show, according to Dr. Silverman, that Nowack injured his back on or about November 8, 1999, when he either stepped into the cab of a fire truck and lost his balance, or when he picked up a tool. Nowack was placed on light duty in January, 2000, and full duty in April, 2000.
Dr. Silverman noted that Dr. Robb's notes in the medical records reflect Nowack suffered a non-work related injury on or about August 5, 2002, to wit: that "Awok [sic] with low back stiffness yesterday with numbness down the right leg. Not work related. Ibuprofen prn." The note indicated Nowack reported pain across the lower back, down the right leg, hip down to the knee and outside of the right leg. Further, on August 14, 2002, Nowack had an MRI, which reflected:
FINDINGS: Lumbar spine alignment normal. No compression fracture, spondylolisthesis or vertebral body signal abnormality noted. T12-L1 through L3-L4 disc space levels are normal. The L4-5 level demonstrates degenerative desiccation of disc signal with a central-right paracentral degenerative disc protrusion. This accounts for central and right anterolateral thecal sac deformity. the L5-S1 level demonstrates mild disc space narrowing but without degenerative desiccation, disc herniation or spinal stenosis. Nerve root foramen patent bilaterally. Paraspinal soft tissues unremarkable. [*6]
IMPRESSION: L4-L5 DEGENERATIVE RIGHT PARACENTRAL DISC PROTRUSION, WITH DEFORMITY OF THE RIGHT ANTEROLATERAL THECAL SAC.
The medical records reflect that Dr. Robb's office approved Nowack's return to work on September 3, 2002 without restriction.
With regard to the November 7, 2002 incident, Dr. Silverman reviewed, inter alia, the emergency department note, the incident report, the notes of Dr. Robb, and the November 22, 2002 MRI of the lumbosacral spine. Dr. Silverman's report states that the findings on this MRI were as follows:
This found focal subligamentous right posterior lateral disk extrusion with disk material abutting the thecal sac and the right L5 nerve root at the L4-5 level. There is elevation of the posterior longitudinal ligament and facet joints are unremarkable. At the L5-S1 normal structures are found. There is no indication that the study was compared to any prior studies or that there was, in fact, any changes with regard to disk size or changes in the herniation.
Dr. Silverman testified that the MRI indicates that there is disc material that is coming against one of the nerve roots. He further testified that, contrary to the assertion of Dr. Robb's physician's assistant, there is no indication that a herniation occurred in November of 2002.
In his 16-page report and testimony, Dr. Silverman, after reviewing Nowack's medical records, physician's notes, and x-rays and MRIs, opined that Nowack had a herniated disk at L4-5 with evidence of nerve root irritation which was degenerative and that it most likely was caused by a fracture of his back prior to 1993. This herniation, according to Dr. Silverman, appears on the August, 2002 MRI. Dr. Silverman opined that the degenerative changes reflected in the MRI was not the result of something caused in November, 2002. He disagreed with Dr. Maxwell's conclusions noting that Dr. Maxwell apparently did not review Nowack's medical records of 1993 and 1999. Dr. Silverman also sets out his disagreement with Dr. Shah's January 21, 2003 letter report and Dr. Miller's IME assessment. Dr. Silverman, in his report, concluded that the original trauma to Nowack's back occurred as a fracture before 1993 and has degenerated since then. Dr. Silverman testified that he would apportion Nowack's disability as 50% from the 1993 trauma and 50% from August 4, 2002. He concluded that the November 7, 2002 incident had no causal effect and that the entire injury was pre-existing.
CONCLUSION
Review of the hearing officer's decision reveals two things which bear noting. First, the decision incorrectly states that no evidence was presented "as to any disability or pain prior to the November 7, 2002 incident other than the August, 2002 incident . . ." Evidence was presented as to previous injuries in 1993 and 1999. [*7]
Second, it is significant that while the decision of the hearing officer thoroughly reviewed the testimony of Dr. Maxwell, it simply stated that the Fire District "had Firefighter Nowack's records examined by Dr. Warren Silverman." The decision did not specifically refer to Dr. Silverman's 16-page report or his testimony.
The record reflects that the Fire District presented substantial evidence that the air compression chair did not malfunction causing Nowack an injury on November 7, 2002. Moreover, Nowack did not tell Bubel that the seat malfunctioned and did not report it as malfunctioning.
The Court concludes that the Fire District's determination denying Nowack's application for disability benefits was supported by substantial evidence in the record as a whole despite the fact that there was conflicting medical evidence to support a contrary result (see Wiley v Hiller, 277 AD2d 1024 [4th Dept 2000] app dismissed 96 NY2d 852 [2001]). The testimony and report of Dr. Silverman, coupled with evidence regarding the condition of the truck seat, the uncontroverted testimony that the road where the injury allegedly occurred was newly paved, and the fact that Nowack did not file any incident report about the seat, constitute substantial evidence to support the Fire District's determination (see Wahl v Board of Trustees of the New York Fire Department, 89 NY2d 1065 [1997]; Root v Regan, 90 AD2d 654 [3rd Dept 1982]). The fact that Dr. Silverman did not actually conduct a physical examination of Nowack is not a basis to exclude his testimony (see Meyer v Board of Trustees of the New York City Fire Department, 90 NY2d 139 [1997]).
The Court finds that the decision of the hearing officer was arbitrary and capricious.
Submit judgment.
Dated at Rochester, New York
this 2nd day of April, 2008.
Honorable Evelyn Frazee
Justice Supreme Court Footnotes
Footnote 1:A copy of their written findings was submitted into evidence as well as service manuals.
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