Matter of Press v Kelly

[*1] Matter of Press v Kelly 2010 NY Slip Op 50239(U) [26 Misc 3d 1223(A)] Decided on January 8, 2010 Supreme Court, New York County Lobis, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 8, 2010
Supreme Court, New York County

In the Matter of the Application of Ronald Press, Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules

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 of the Police Pension Fund, ARTICLE II, NEW YORK CITY POLICE DEPARTMENT and THE CITY OF NEW YORK, Respondents.



107020/09



Attorney for petitioner:

Chet Lukaszewski, P.C.

Attorney for respondent:

Corporation Counsel for NYC

Joan B. Lobis, J.

Petitioner Ronald Press brings this proceeding under Article 78 of the C.P.L.R. to annul the decision of respondent The Board of Trustees of the Police Pension Fund (the "PPF"), which denied him a line of duty Accident Disability Retirement allowance ("ADR") and Ordinary Disability Retirement ("ODR"). The other respondents are Raymond Kelly, as the police commissioner and as chairman of the PPF; the New York City Police Department (the "NYPD"), and the City of New York (the "City"). For the reasons stated below, the petition is denied.

On July 7, 1999, petitioner became an NYPD Police Officer. He remains a member of the NYPD, though he is currently on desk duty. His inability to get discharged with a disability is the basis of this Article 78 petition. Petitioner argues that he is entitled to be discharged from his duties with ADR or ODR as the result of hearing impairment. Though petitioner's hearing loss is not in dispute, the severity of it is.

Petitioner started his career with the NYPD as a Transit Officer. As part of his duties, he [*2]patrolled subways and subway platforms. On June 19, 2007, petitioner sustained a head injuring while attempting to apprehend a suspect. He was sent to the Emergency Room with severe nausea. Thereafter, petitioner complained of hearing loss in both ears. On August 20, 2007, petitioner was examined by a hearing specialist, Thomas Roland, M.D., who tested for and confirmed his hearing loss. Dr. Roland promptly sent a letter to the NYPD. He stated that petitioner's fall likely caused the hearing loss and that petitioner "should not be expected to work where normal hearing is essential for safety" and recommended him for desk work. Dr. Roland also recommended hearing aids for petitioner, but petitioner provides no documentary proof that the NYPD authorized his use of hearing aids. On September 4, 2007, petitioner submitted an application for line of duty ADR. Around November 16, 2007, Dr. Roland conducted another audiological evaluation and adhered to his earlier diagnosis.

The Medical Board interviewed petitioner and reviewed his medical records, but deferred the application pending an evaluation by Marc Kramer, Ph.D., a Board Certified audiologist and the Medical Board's audiological consultant. Dr. Kramer tested petitioner's ability to hear speech with no noise and with background noise, a test that Dr. Roland did not do. Dr. Kramer reported that petitioner achieved a recognition score of 96% in recognizing speech in quiet and a score of 80% in recognizing speech with background noise. Dr. Kramer concluded that these scores fulfilled NYPD's expectation of hearing ability for its officers. On February 20, 2008, the Medical Board agreed with Dr. Kramer and disapproved petitioner for ADR and ODR.

On May 24, 2008, Dr. Roland sent another letter to the NYPD. In this third letter, he admitted that petitioner had good speech discrimination scores, but that he still felt that petitioner's hearing loss would impair his ability to be a police officer. On June 9, 2008, petitioner saw a neurotologist, George Alexiades, M.D., for a second opinion. Dr. Alexiades examined Dr. Kramer's tests. Dr. Alexiades stated that petitioner's 80% score in recognizing speech in background noise was inflated, because the speech was louder than it was in the "speech in quiet" test. Based on this additional evidence, the Board of Trustees gave Dr. Kramer a chance to re-evaluate his opinion.

On July 25, 2008, Dr. Kramer addressed the issues raised by Dr. Alexiades and clarified his diagnosis. According to Dr. Kramer, a score of 80% in recognizing speech in background noise was "not unlike" scores obtained by individuals without hearing loss. Dr. Kramer explained the higher volume of speech when testing it with background noise reflected "the natural increase of vocal intensity of individuals attempting to be heard in noisy environments." On September 10, 2008, the Medical Board again recommended the denial of petitioner's application.

On October 6, 2008, petitioner was evaluated by a third hearing medical doctor, Richard Nass, M.D. Dr. Nass concluded that petitioner had moderate hearing loss in his left ear and severe hearing loss in his right. Dr. Nass, feeling that petitioner was physically unqualified to re-enter work as a transit cop, recommended that petitioner be limited to office-based work. On November 25, 2008, Dr. Alexiades issued another report on petitioner. He concluded that [*3]petitioner would have significant trouble in hearing normal human speech, especially in noisy situations. On December 12, 2008, Dr. Roland wrote a letter to the NYPD in which he concurred with Dr. Nass. None of these doctors performed the "speech in noise" test. On January 14, 2009, the Medical Board reaffirmed its recommendations. The Board of Trustees adopted this recommendation and petitioner was unable to retire with ADR or ODR.

Petitioner argues that the Board's findings were arbitrary, capricious, and legally insufficient because it ignored petitioner's three medical doctors; it adopted the finding's of a specialist that was not a medical doctor; it failed to explain its reasons for disagreeing with petitioner's doctors; and it did not discuss evidence in support of its conclusion.

ADR benefits are available when an examination and investigation shows that the applicant is physically or mentally incapacitated for the performance of duty as a natural and proximate result of an accidental injury received in the line of duty, and that such disability was not the result of willful negligence on the part of the applicant. See Administrative Code of City of New York § 13-252. An applicant for ADR benefits has the burden of proving the existence of the disability and that the disability is causally related to an injury sustained in the line of duty. See In re Drayson v. Bd. of Trs., 37 AD2d 378 (1st Dep't 1971). The procedure for seeking ODR benefits is similar; however, the applicant does not have to prove that he was injured in the line of duty. NYC Administrative Code * 13-251. "In an article 78 proceeding . . . the Medical Board's finding will be sustained unless it lacks a rational basis, or is arbitrary or capricious." In re Borenstein v. N.Y.C. Emples. Ret. Sys., 88 NY2d 756, 760 (1996) (citations omitted). Courts have annulled determinations of the Medical Board and remanded for further review when medical issues presented by the petitioner are not adequately addressed or when medical evidence is insufficient to sustain the determination. See, e.g., In re Rodriguez v. Bd. of Trs., 3 AD3d 501 (2d Dep't 2004). The courts must not review the facts regarding the weight of the evidence, unless there is a "substantial evidence" question. In re Pell v. Bd. of Ed., 34 NY2d 222, 230 (1974). In an Article 78 review, the court must not question credibility determinations made by the administrative agency. Pelayo v. Safir, 288 AD2d 133 (1st Dep't 2001) (citation omitted). Furthermore, "[d]ispute[s] between the opinions of medical experts . . . [are] for the Medical Board to resolve." In re Cassidy v. Ward, 169 AD2d 482, 483 (1st Dep't 1991) (citation omitted); see also In re of Muffoletto v. NY City Emples. Ret. Sys., 198 AD2d. 7 (1st Dep't 1993) ("conflicting medical evidence proves no occasion for judicial interference"). Likewise, when differing interpretations of test results arise, "[t]he Board alone [has] authority to resolve such conflicts." In re Borenstein 88 NY2d at 761 (citations omitted); Reid v. Kelly, 235 AD2d 361 (1st Dep't 1997).

The Medical Board's conclusions were supported by medical evidence that was credibly interpreted by a non-medical hearing specialist. The Medical Board relied heavily on Dr. Kramer's interpretation of his evaluation-the raw data of which was undisputed. Although Dr. Kramer's first report was conclusory, his July 2008 letter provided additional details for his conclusions. He measured petitioner's ability to hear speech in background noise. Dr. Kramer noted that petitioner's ability to discern speech in background noise was comparable to the ability [*4]of people without any hearing impairments. Therefore, petitioner could properly fulfill the duties of a police officer. As per, petitioner's criticism of Dr. Kramer's lack of a medical degree, skills, and expertise, the court may not make credibility judgments at this juncture. Moreover, the Medical Board has validly relied on psychologists, who like Dr. Kramer are non-medical specialists, to proffer evaluations. See Holzberg v. Kelly 13 AD3d 280, 281 (1st Dep't 2004).; DeAngelo v. Ward, 159 AD2d 425, 426 (1st Dep't 1990). The court also notes that audiologists have been relied upon as experts in a variety of civil actions. E.g., Preston v. Young, 239 AD2d 729, 731 (3d Dep't 1997) (audiologist used to assess damages in a personal injury case); Cantone v. Rosenblum, 186 AD2d 167, 168 (2d Dep't 1992) (audiologist's evaluation used to offer correct diagnosis in a misdiagnosis case); Rice v. Schulyer, 183 AD2d 974, 975 (3d Dep't 1992) (audiologists used by both sides in a challenge to hearing qualifications for police officers).

The Medical Board adequately addressed and rationally rejected petitioner's proffered evidence by adopting Dr. Kramer's rebuttal of petitioner's evidence. It concluded that since Dr. Roland, Dr. Alexiades, and Dr. Nass did not test petitioner's ability to hear speech in sound, they could not give an accurate opinion on petitioner's abilities. Inasmuch that this case presents a spirited battle of the experts, it was for the Medical Board to resolve the conflict. This court cannot interfere with the Medical Board's decision regarding which expert opinion to adopt.[FN1]

For the reasons discussed above, the PFF's decision to deny ADR and ODR for

petitioner is affirmed. This constitutes the decision, order, and judgment of this court.

Dated: January, 2010

______________________________

JOAN B. LOBIS, J.S.C. Footnotes

Footnote 1:The court shares petitioner's concern that he could be assigned to transit duty in New York City's ordinarily loud and busy subway system. While the court is constrained to deny petitioner's application by the standard of review this court must apply, giving the hearing loss that is undisputed it is incumbent upon the police department to monitor the assignments Officer Press is given.