Matter of James v Kelly

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Matter of James v Kelly 2008 NY Slip Op 31859(U) June 30, 2008 Supreme Court, New York County Docket Number: 0113736/2007 Judge: Paul G. Feinman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON 71212008 [* 1 ] SUPREME COURT OF THE STATE d F NEW YORK - NEW YORK COUNTY Justice INDEX NO. I 1'373 b Io -7 MOTION DATE 4-1 b --or -v- r" 1 MOTION SEQ. NO. MOTION CAL. NO. The following papers, numbered 1 to were read on this motion tolfor PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits .. cn Y 2 0 v) 4 ... /-z Y Answering Affldavlts - Exhibits J- Replying Affidavits Cross-Motion: I I Yes IeNo W a Dated: 4-70- ; L w ~ J. S. C . Check one: I d F l N A L DISPOSITION Check if appropriate: n n NON-FINAL DISPOSITION DO NOT POST 1 1 REFERENCE [* 2 ] liidex Number Submission Date Mot. Seq. No. For a Judgment under Article 78 of the Civil Practice Law and Rules, - against - 1 13736/2007 April 16, 2008 00 1 DECISION, ORDER AND JUDGMENT 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 11, THE BOARD OF TRUSTEES of the Police Pension Fund, Article 11, NEW YORK CITY POLICE DEPARTMENT, and THE CITY OF NEW Y O N , Respondents. Far the Respondent: Michoel A. Cardozo, Esq. Corporation Counsel of City of New York 13y: Karen 1 Seemen, Esq. . 100 Church St. New Y ark NY 10007 (212) 788-1 197 For tlic Petitioncr: Jeffrey L. Goldbcrg, P.C. By: Jeffrey L. Goldberg, Esq. 200 1 Marcus Avenue Lake Success NY 1 I042 (516) 775-9400 Papers considered in rcview ofthis petition to remand: Pnpers Numbered Notice of petition, Affidavits. Mcmo of Law ........ 12 . Answer, Mcmo ol laws ........................................ 3, 4 Rcply Memo of I ~ w........................................... s 5 PAUL G . FEINMAN, J.: In this Article 78 proceeding, petitioner seeks to reinand the determination by respondents to deny him an accident disability retirement allowance pursuant to CPLR 7803 (3). For the reasons which follow, the petition is denied. Petitioner was appointed as a uniformed police officer with the New York City Police 1 [* 3 ] Department in August 1970. In 1978, he underwent surgery to replace his right ear drum; in 1980, an otological examination revealed a right ear conductive hearing loss, with a 20 decibel air bone gap, and a severe high-frequency sensori-neural hearing loss characteristic of noise induced hearing loss. (Pet. Ex. G [Leinhardt Rep. 5/1/80]). On May 14,2002, while on duty at police headquarters, assigned to the alarm board which was testing the alarm system, he complained of dizziness, ringing in his cars, loss of balance, and loss of hearing in both ears, and was taken to a hospital emergency room (Pet. Ex. 13 [Line of Duty Injury Rep.]). He was diagnosed with tinnitus and directed to rest (Pet. Ex. B [Aftercare Instructions]). In June 2002, he underwent audiometric tests and a CT scan of his temporal bones (Pet. Ex. C, D). According to Dr. Moshe Epllrat, an otolaryngologist, the audiometric tests showed significant right-sided mixed moderate to severe hearing loss. (Pet. Ex. E [Ephrat Rep. 10/20/2002]). The neuroradiologist who read the CT scan found that his left ear structure was normal, but his right ear structure had some soft tissue thickening possibly the result of an inflammatory process (Pet. Ex. D). Petitioner applied for Accident Disability Retirement (ADR) benefits on August 13, 2002, based on this line of duty injury (Ans. Ex. 7). The Police Commissioner applied on petitioner s behalf for Ordinary Disability Retirement (ODR) benefits. Both applications were ultimately denied by the Board of Trustees of the Police Pension Fund Article 11. Petitioner brought an Article 78 proceeding seeking review of the denial. By decision, order, and judgment of February 15, 2006, this court granted his petition to the extent of remanding the proceeding to respondents Medical Board for a de novo hearing and an examination by a doctor with specific training in hearing-related issues (Pet. Ex. K; Tr. of Dec., pp. 5:24-26; 9: 17-20). 2 [* 4 ] Petitioner appeared before the Medical Board Police Pension Fund Article I1 on September 6,2006, and, after a deferral for administrative clarification, the Medical Board issued its new decision, which explained would clarify its position with regard to disapproval of the officer s application for disability retirement, based upon this order of the court. (Pet. Ex. M [Med. Bd. Dec. 10/25/06,11 1, 21). This decision was later adopted by the Board of Trustees on June 13,2006, after tabling the matter for three months following receipt of a request for another remand by plaintiffs counsel on June 13, 2006 (Pet. Ex. O). Petitioner timely filed the instant Article 78 proceeding, again sceking remand and reversal of respondents decision denying him any disability retirement benefits. He argues that respondents contravened the court order by not undertaking an examination by a hearing specialist. He also argues that because the Medical Board s decision was not informed by the expertise of a hearing specialist, and because the Board of Trustees tabled the case for three Petitioner s attorney submitted a 2007 report from petitioner s otorhinolaryngologist, Dr. Leinhardt, who opined that despite Ipetitioner s] prior history, the events on May 12,2002, were most likely the proximate cause of [petitioner s] current complaint of Tinnutius [sic], further nerve damage, and hearing loss ; in the doctor s opinion, petitioner qualifies for at least ODR benefits, and it would at least behoove the board to obtain an independent medical evaluation by a certified audiologist or otolaryngologist to help the Board in its determination (Pet. Ex. N). The Trusteess agreed to table the matter in April 2007 for further examination (Ans. Ex. 26 [Bd. of Trustees Minutes 4/11/2007]). At its May 2007 meeting, the Trustees again tabled decision, so as to discuss alternatives, finding that the Medical Board had done a careful review of the court s concerns and addressed new documentation, and that there was (no value in granting an additional remand ( A n s . Ex. 27 [Bd. of Trustees Minutes 5/9/2007]). At its June 13,2007, meeting the Board of Trustees, after twice going off the record to discuss the case, finally denied the remand request, and adopted the October 2006 decision by the Medical Board that denied petitioner any retirement benefits, with one Trustee noting that there is no requirement under the law that the Medical Board send the disability applicant to an outside consultant or professional for any particular matter (Pet. Ex. 0 [Bd. of Trustees Minutes 6/13/2007]). 3 [* 5 ] months, denied his request for a remand to present the Medical Board with the March 12,2007 report by Dr. Leinhardt, and failed to make a complete record of its June 13,2007 decisionmaking, their final decision to deny him any disability retirement was based on legally insufficient evidence and was arbitrary and capricious, made without a full appraisal of the facts in the law. Respondents argue that petitioner has failed to establish that he is physically incapacitated from performing his duties or that his incapacity is the natural and proximate result of a line of duty injury, and that there was ample credible evidence found by Medical Board to support its decision that petitioner s hearing loss was insufficient to incapacitate him from performance of his job as a member of the police force. Where a petitioner a member of the City pension fund and retirement system, his or her application for accidental disability retirement involves first, a finding by a three-physician member pension fund Medical Board that, based upon a medical examination and after investigating all essential information in connection with the application for a disability retirement application, the member is disabled for performance of duty and ought to be retired, and secondly, that the disability is a natural and proximate result of an accidental injury received in such city-service ; this determination is then sent to the Board of Trustees (Mutter qf Meyer v Board of Trustees ofNYC Fire Dept., 90 NY2d 139, 144 [ 19971, citing among others Mutter of Cnrzforu v Bourd of Trustees, 60 NY2d 347,35 1 [ 1983J [construing comparable provisions governing New York City Police Pension Fund]). It is well-settled that the Board of Trustees of the Police Pension Fund is bound by the Medical Board s determination of disability (Mulier ofBorenstein v New York City Employees 4 [* 6 ] Retirement S . , s 88 NY2d 756 [ 19961). The Board s determination will not ordinarily be disturbed if the determination is based on substantial evidence, which the Court of Appeals has held to mean, in the context of disability cases, as some credible evidence (Mutter of Borenstein, 88 NY2d at 760, citations omitted). Where the medical evidence is conflicting, it is the sole province of the Medical Board to resolve the conflict (Matter of Borenstein at 760). Reviewing courts may not weigh the medical evidence or substitute their judgment for that of the Medical Board (Muller qfhrenstein, at 760). In an Article 78 proceeding, the petitioner has the burden of proving that he/she is physically incapacitated from performing hisher duties as a natural and substantive factor of an accidental injury received in the course of performing city service (Matter ofEvans v City o f N. Y , 145 AD2d 361, 361 [lSt Dept. 19883 [although the petitioner suffered from ulcerative colitis, a stress-related disease, t h s condition was not an accident]). This court s February 2006 decision to remand the proceeding for a new hearing and examination by an expert, was based on the court s concern that petitioner presented evidence of a disabling hearing loss, but there was no discussion in the Medical Board s report as to whether the hearing loss was caused or exacerbated by the May 14,2002 event, or whether his hearing loss was degenerative in nature; nor was there an explanation of why the Board did not credit the reports of Dr. Richard Leinhardt, petitioner s otolaryngologist, as to the petitioner s post-incident hearing loss and its causation (Pet. Ex. K, Dec. & Order. Tr. pp. 6, 8). Here, thc Medical Board explicitly chose to clarify its position, rather than engage an expert to advise the three-panel board. In its decision of October 25, 2006, the Board noted that more recent audiological examinations conducted by Alan Richards, Ph.D, of Madison 5 [* 7 ] Audiology Associates, found that petitioner s left ear had an abnormal tympanogram, with borderline to normal hearing, although at higher frequencies, there is mild to moderate decline in sensitivity (Pet. Ex. M, Med. Bd. Dec. 10/25/2006 7 3; Pet. Ex. I [Madison Audiology Assoc. Report of 9/1 S/2004]). It agreed that there is right ear hearing loss, with tests showing a mild mixed loss at lower frequencies, primarily of a conductive nature, and a moderate decline in sensitivity at higher frequencies, but with good speech discrimination, although with an abnormal tympanogam (Pet. Ex. M, Med. Bd. Dec. 10/25/2006 7 3). The Board explained that the 1980 audiometric findings and Ihe 2004 audiometric findings are similar, with the findings from 2004 slightly better than the findings from1980 (Pet. Ex. M, Med. Bd. Dec. 10/25/2006 7 7). Its position is that petitioner worked full time between 1980 to 2002 with some hearing loss, and that his hearing loss as of 1980 was equivalent or worse by description than what was found in the 2004 examination findings (Pet. Ex. M, Med. Bd. Dec. 10/25/2006 7 6). It notes the statement by Dr. Leinhardt in 2003 that petitioner s post-incident hearing loss would preclude him from a position on the police force, but explains that even in 1980, petitioner s hearing loss as noted by Dr. Leinhardt would have precluded him froin being hired by the Police Department (Pet. Ex. M, Med. Bd. Dec. 10/25/2006 7 5). Finally, the Medical Board concluded that petitioner s right ear hearing loss had to do with the 1978 surgery, and was not related to job exposure (Pet. Ex. M, Med. Bd. Dec. 10/25/2006 7 7). The Medical Board did not comply with the court s request that it engage a hearing specialist to examinne petitioner and present findings concerning whether petitioner s current hearing loss was the result of the May 14,2002 incident, but instead considered newer medical 6 [* 8 ] findings provided by a second audiologist report of 2004, and set forth a more detailed explanation of its reasoning2 It concluded that petitioner worked with a certain amount of hearing loss for almost the entirety of his police career, that this hearing loss did not significantly increase over time, and that the hearing loss in his right ear was Ihe result of the 1978 surgery; it did not find that the left ear hearing loss to be disabling. The Medical Board has the duty, under law, to determine whether an applicant is incapacitated by the injury and cannot perform his or her duties (Matter qfBorenstein, 88 NY2d at 760-761). Where the Medical Board articulates a detailed and fact-based medical explanation, even if it does not conduct its own examination of the applicant, its findings of lack of causation is sufficient credible evidence under the law (Matter qfMeyer, 90 NY2d at 146) 152). The Medical Board is entitled to rely on its own examination and evaluation of the medical evidence, after considering the opinions of the applicant s physicians and experts (Matter o Tohin v f Sleisel, 64 NY2d 254, 258 [1985]). Here, the Medical Board agreed that petitioner has a hearing loss, and that this hearing loss was significant enough that he would not have been hired with tlie condition. However, it has now sufficiently sct forth detailed findings that explain its determination that petitioner was not disabled, namely that the medical evidence does not show much change in condition between 1980 and 2004, two years after the incident that caused petitioner to seek retirement. The 21t apparently did not re-interview petitioner (Pet. Ex. L [Med. Bd. Rep. 9/6/2006]; Ex. M [Med. Bd. Rep. 10/25/2006]). It interviewed petitioner in December 2004, who stated that in the last few years before his retirement, he could not hear the patrol car radio, has had difficulties hearing conversation, and has true vertigo about three to four times a day, for ten to fifteen seconds at a time (Ans. Ex. 13 [Med. Bd. Rep. 12/15/2004 7 61). 7 [* 9 ] medical evidence explains how petitioner was able to continue working for so many years with a certain amount of hearing loss. Having sufficiently articulated a rational based reason for its findings, there is no further need to address the issue of the ~pecialist.~ Although the Board of Trustecs did not remand the inattcr to the Medical Board so that it could evaluate the March 12, 2007 report by Dr. Leinhardt, the court agrees with respondents that the report is a mere reiteration of previous findings, along with his opinion that petitioner should be examined by an expert and receive some sort of disability retirement, and that it was not arbitrary or capricious to disregard the request for a remand based on what is ultimately a matter of personal opinion. Furthermore, because the Board of Trustees is required to accept the disability determination of the Medical Board, as long as there is some credible evidence, the fact that the Board of Trustees minutes show that the members went off the record wheii discussing the case, is not, in and of itself, sufficient lo establish that respondents determination was arbitrary and capricious. For the above-stated reasons, it is ADJUDGED and ORDERED that the petition is denied and the proceeding is dismissed. The foregoing shall constitute the decision, order and judgment of this court. ENTJR: Dated: June 30,2008 New York, New York - vu/.@-/ 3 J.S.C. Pursuant to Matter ofMeehan v Kelly, 50 AD3d 523 (1 Dept. 2008), the Medical Board is not required to employ an expert in any particular field to evaluate an applicant. (2008 52D&0~113736~2007~001Jh) 8

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