O'Connor v Bratton

[*1] O'Connor v Bratton 2017 NY Slip Op 51677(U) Decided on November 27, 2017 Supreme Court, New York County St. George, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 27, 2017
Supreme Court, New York County

Michael O'Connor, Petitioner,

against

William J. Bratton, as the Police Commissioner of the City of New York, and as Chair of the Board of Trustees of the Police Pension Fund, Article II and THE BOARD OF TRUSTEES of the Police Pension Fund, Article II, Respondents.



101413/2016



Attorneys for Petitioner: Law Office of Jeffrey L. Goldberg, P.C., 6 Harbor Park Drive, Port Washington, NY 11050, by Jeffrey L. Goldberg, Esq.

Attorneys for Respondent: Zachary W. Carter, Esq., Corporation Counsel of the City of New York, 100 Church Street, New York, New York 10007
Carmen Victoria St. George, J.

Petitioner Michael O'Connor brings this Article 78 proceeding to annul the determination of respondents William J. Bratton and The Board of Trustees of the Police Pension Fund ("Board of Trustees"), which denied his application for Accident Disability Retirement ("ADR") and granted him Ordinary Disability Retirement ("ODR"). Petitioner also seeks a judgment granting petitioner an ADR pension as a matter of law, retroactive to the date of his ODR. Alternatively, petitioner seeks an order remanding the matter to the respondents for further consideration.[FN1] The respondents in their verified answer seek the denial and dismissal of the Article 78 petition. For the reasons stated below, the petition is denied.

Background

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Petitioner joined the New York City Police Department ("NYPD") on August 31, 1998 and served continuously for 16 years, eventually achieving the rank of sergeant. Prior to his appointment he passed all physical and mental examinations administered by the NYPD. The petition alleges that on June 18, 2011, petitioner suffered numbness in his right hand while wrestling with a perpetrator. Petitioner was taken to New York Downtown Hospital, where he was diagnosed with ulnar nerve neuropraxis and tachycardia [FN2] . A little over two years later, petitioner was off duty in his home, lost consciousness, fell and broke his nose. He was taken to Huntington Hospital and underwent several tests including three electrocardiograms, results of which were all normal.

Thereafter, on September 18, 2013, petitioner was diagnosed with syncope [FN3] by Dr. Pedro J. Torrico. On September 19, 2013, petitioner underwent a 2D echocardiogram and it was determined that he had normal left ventricular systolic function. Two subsequent stress tests taken on September 25, 2013 and October 8, 2013, both administered by Dr. Bhasin, petitioner's cardiologist, were positive for ischemia.[FN4] Finally, on October 24, 2013, underwent a cardiac catheterization, which showed normal coronary arteries and normal left ventricular systolic function.

On October 31, 2013, the NYPD changed petitioner's employment status from "full duty" to "limited duty" and he underwent another cardiac catheterization study on December 12, 2013, which was positive for inducible non-sustained ventricular tachycardia.[FN5] On January 3, 2014, petitioner's status was then changed from "limited duty" to "restricted duty." Contemporaneously, petitioner applied for ADR, requesting benefits under General Municipal Law 207-k, commonly referred to as the "Heart Bill." The Heart Bill provides that when a police officer is found disabled due to heart disease, there is a rebuttable presumption that the disabling condition was incurred in the line of duty. The presumption can be overcome however, by competent evidence. On March 19, 2014, the Police Commissioner applied on petitioner's behalf to the Pension Fund for ODR.

Petitioner appeared before the Police Pension Fund Medical Board ("Medical Board") on April 18, 2014 in connection with his application. The Medical Board discussed the above-mentioned test results, reviewed petitioner's medical history, performed a physical examination, and discussed his current complaints and treatment. The Medical Board concluded that petitioner was disabled from performing the duties of a police officer due to his syncope diagnosis, but that the cause of the syncope was unknown. Notably, the Medical Board found that petitioner's syncope was not due to coronary artery disease or hypertensive vascular disease. The Board noted that its conclusion was based on petitioner's negative cardiac catheterization and his 2D echocardiogram which also did not show evidence of any left ventricular hypertrophy. Accordingly, the Medical Board recommended approval of the ODR application, and denial of petitioner's application for ADR.

As is customary, the Board of Trustees thereafter reviewed the Medical Board's determination. In this instance, the Board of Trustees remanded it back to the Medical Board because petitioner submitted new medical records supporting his application. On October 24, 2014, the Medical Board considered petitioner's application in light of the additional medical records and for the second time denied his request for ADR.

On April 8, 2015, the Board of Trustees again remanded petitioner's application to the Medical Board upon receipt of new medical evidence. On June 5, 2015, the Medical Board reviewed petitioner's application for ADR for the third time and upheld its previous finding of ODR, stating "[t]he rationale for this recommendation is that arrhythmia [FN6] , which is the cause of his disability, is not due to either hypertensive or coronary artery diseases which are covered by the Heart Bill" (petitioner's exhibit 9). On November 13, 2015, petitioner's attorney requested that petitioner's application be remanded back to the Medical Board to review additional medical records. On January 29, 2016, the Medical Board rejected petitioner's application for ADR for a fourth and final time.

On May 6, 2016, petitioner's attorney wrote a letter to the Board of Trustees requesting that they upgrade petitioner's application from ODR to ADR. On, May 11, 2016, the Board of Trustees reviewed the Medical Board's report dated January 29, 2016 at their monthly meeting. The Board of Trustees denied petitioner's ADR application by a 6-6 tie vote (see City of New York v. Schoeck, 294 NY 559 [1945] (a tie vote by the Board of Trustees is a denial of ADR). It is from that determination that petitioner seeks relief.

Petitioner's Application

In support of his application, petitioner offered medical records and letters from Marc Wilkenfeld, M.D., an occupational and environmental medicine specialist at Winthrop Occupational & Environmental Medicine, and Paul C. Maccaro, M.D., a board-certified cardiologist who performed two 30-day cardiac studies on petitioner from November 27, 2014 through December 27, 2014, and February 11, 2014 through March 13, 2015. Both studies revealed abnormal sinus rhythms from an unknown source. The papers also included records relating to petitioner's May 18, 2014 visit to the Huntington Hospital emergency room for chest pain and recordings from an implantable loop recorder. Dr. Wilkenfeld's March 19, 2015 report stated in part "[c]leary [petitioner] suffers from supraventricular arrhythmia requiring medication [*2]and is at risk for syncope. Based on the results of the documentation from the cardiologist, [petitioner] is clearly unable to do the duties of a police officer based on his cardiac disease" (petitioner's exhibit L). In Dr. Wilkenfeld's report dated July 9, 2015, he disputed the medical board's June 5, 2015 finding that petitioner's medical condition was not cardiac in nature. Dr. Wilkenfeld explained that he reviewed petitioner's records including a cardiac study which showed episodes of tachycardia and "a letter from his cardiologist which has a diagnosis of supraventricular tachycardia." Dr. Wilkenfeld opined that petitioner was clearly suffering from syncope and further noted that petitioner was taking heart medications including calcium blockers and other beta blockers. Dr. Wilkenfeld's final report dated April 21, 2016 read as follows: "Mr. O'Connor comes in today to discuss the results of his recent hearing before the NYPD medical board. As you know, I have been supporting his application for a work-related disability under the heart bill. It is clear that he suffers from a cardiac arrhythmia. It is also clear that he had a positive stress test. In my opinion, disease of the coronary arteries contributes to the causation of his arrhythmia. He is treated by a cardiologist. He was once again denied and he has asked me for another letter in support of his case. Once again, my conclusion is that Mr. O'Connor suffers from cardiac disease as documented by a cardiologist in his medical records. He is unable to work as a police officer because of his condition. Based on my understanding of the heart bill, this should be a covered condition."

(petitioner's exhibit T)

Petitioner argues that the respondents failed to rebut the presumption under the Heart Bill that the petitioner's syncope was incurred in the line of duty. Petitioner asserts the absence of coronary artery disease and hypertension is not dispositive under the Heart Bill (Matter of Ploss v. Kelly, 113 AD3d 531 [1st Dept 2014]). The petitioner maintains that where the Medical Board is unable to determine the etiology of the underlying disease and offers no alternative cause, the statutory presumption prevails. In support of that contention, petitioner cites to Matter of Bitchatchi v. Bd. of Trustees of New York City Police Dept., Pension Fund (20 NY3d 268 [2012]), which states that the Medical Board may "not rely on petitioner's deficiencies to fill its own gap in proof." Petitioner maintains that Matter of Modlin v. Kelly (121 AD3d 464 [1st Dept 2014]), in which the First Department affirmed the Medical Board's denial in a Heart Bill case is distinguishable from his case because in Modlin "the Medical Board's report on remand was detailed and specific and addressed the conflicting conclusions of petitioner's doctors" (Modlin, 121 AD3d at 464). Petitioner alleges that the Medical Board in his case did not provide a detailed explanation as to how they came to their determination and did not explain why they did not accept Dr. Wilkenfeld's conclusion. Petitioner concludes that without further explanation on the Medical Board's part, respondents' determination is neither rational nor based on credible evidence, and fails to rebut the presumption of petitioner's entitlement to ADR under the Heart Bill.

Respondents' Position

In their answer, respondents argue that the determination of the Medical Board was rational, supported by the administrative record and consistent with appellate authority interpreting the Heart Bill. First, respondents refute petitioner's interpretation of the rebuttable presumption under the Heart Bill. Respondents assert that the presumption only applies to [*3]disabling heart conditions that are caused by occupational stress such as hypertension and coronary artery disease (Matter of Goldman v. McGuire, 101 AD2d 768, 770 (1st Dept 1984), affd 64 NY2d 1041 [1985]). Respondents contend that petitioner's medical record supports that his syncope was caused by abnormal heart rhythm (a/k/a arrhythmia). They further claim that petitioner's disabling heart condition, arrhythmia, is unaccompanied by hypertension or coronary heart disease and, as such, fails to qualify under the presumption.

Respondents reply stating that the presumption under the Heart Bill does not require the Medical Board to determine the cause of an applicant's disabling heart condition (Hogg v. Kelly, 93 AD3d 507 [1st Dept 2012]). Second, respondents maintain that the Medical Board rebutted the Heart Bill presumption with competent evidence, which is the standard under the Heart Bill. Respondents further argue that the negative findings of petitioner's 2D echocardiogram dated September 19, 2013 and cardiac catherization report dated October 24, 2013 satisfy the competent evidence standard and are sufficient to establish that petitioner's arrhythmia was unaccompanied by coronary artery disease and hypertension (Goldman, 101 AD2d at 769; Modlin, 121 AD3d at 464-65). Respondents assert that the findings of petitioner's cardiologists, Dr. Patcha [FN7] at Huntington Hospital and Dr. Bhasin,[FN8] support the Medical Board's determination; and that Dr. Maccaro's March 4, 2015 report substantiates the Medical Board's finding that petitioner's arrhythmia was not caused by hypertension or coronary artery disease. Additionally, respondents point out that although petitioner was examined and treated by several cardiologists, petitioner repeatedly relied on the medical opinion of Dr. Wilkenfeld in arguing his entitlement to ADR before the Medical Board. Respondents argue that Dr. Wilkenfeld's reports are insufficient as a matter of law because none of his reports claim that petitioner's arrhythmia was related to coronary artery disease or hypertension.

Furthermore, respondents contend that Ploss is distinguishable from this case in that there is no medical opinion of a cardiologist provided to support the connection between petitioner's arrhythmia and job-related stress, nor has petitioner provided any medical opinion squarely conflicting with the Medical Board's conclusion that petitioner's arrhythmia is not accompanied by coronary artery disease and hypertension. To the extent petitioner alleges that the Medical Board did not address the conflicting conclusion of Dr. Wilkenfeld, respondents assert that Dr. Wilkenfeld did not offer a medical opinion conflicting with the Medical Board's determination that petitioner's abnormal heart rhythm is not accompanied by coronary artery disease or hypertension. Accordingly, respondents argue that the presumption under the Heart Bill is rebutted, and petitioner is not entitled to ADR.

Petitioner's Reply

In reply, petitioner argues that respondents failed to address Bitchachi v. Bd. of Trustees in their answer. Petitioner claims this Court of Appeals case is controlling in cases dealing with presumptive disability statutes in NYPD cases. Further, petitioner contends that Dr. Wilkenfeld repeatedly stated that occupational stress attributed to petitioner's arrhythmia. Therefore, petitioner asserts that the Court should grant his application as a matter of law based on the [*4]Medical Board's failure to rebut the presumption that petitioner's cardiac disability was incurred in the line of duty.

Discussion

Police officers employed by the NYPD who become disabled may apply for ODR benefits or ADR benefits. ADR benefits are more generous to recipients than benefits granted under ODR [FN9] .

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). If the applicant for ADR claims that he is disabled by a cardiac disease, General Municipal Law § 207-k, commonly known as the "Heart Bill," provides for a presumption in favor of accidental line of duty causation as long as the applicant "successfully passed a physical examination on entry into the service of such respective department, which examination failed to reveal any evidence of such condition. . . unless the contrary be proved by competent evidence." In order to rebut this presumption, the Medical Board must rule out underlying stress-related coronary artery disease or hypertension as the cause of the heart ailment (In re Seldon v. Kelly, 21 AD3d 840, 840-41 [1st Dept 2005]; see also Tardibuono v. Bd. of Trustees of New York City, 240 AD2d 327 [1st Dept 1997]. "A finding of unknown origin itself rebuts the statutory presumption that the disabling condition was incurred in the line of duty" (Goldman v. McGuire, 101 AD2d 768, 769 [1984], affd 64 NY2d 1041 [1985]; see also Matter of Gumbrecht v. McGuire, 117 AD2d 531, 533 [1986]).

It is well settled that 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 (In re Borenstein v. NYC Emples. Ret. Sys., 88 NY2d 756, 760 [1996]). 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 (Kiess v. Kelly, 75 AD3d 416, 417 [1st Dept 2011]). The Medical Board may validly rely on its own medical opinion, even where the petitioner presents evidence contrary to the Board's opinion, so long as the opinion is rationally based in the record (Tobin v. Steisel, 64 NY2d 254, 259 [1985]).

After careful consideration, this Court denies and dismisses the petition. The petitioner has not shown that respondents acted arbitrarily or capriciously when they denied his ADR application. The Medical Board's determination that petitioner's arrhythmia was not caused in the line of duty was rationally based on competent evidence. The Medical Board reviewed petitioner's application on four separate occasions and on each occasion issued a report summarizing petitioner's medical history, the findings of the medical reports submitted by petitioner, and his complaints. At each review, the Medical Board conducted a physical exam of the petitioner and interviewed him. The Medical Board adequately rebutted the presumption under the Heart Bill by relying on the findings of petitioner's own treating cardiologists, who collectively ruled out hypertension and coronary artery disease as underlying causes of his [*5]arrhythmia. Petitioner's argument that the presence or absence of hypertension and coronary artery disease is not dispositive under the Heart Bill is unavailing based on appellate authority (Goldman, 101 AD2d at 770; Vallas v. Safir, 304 AD2d 353 [1st Dept 2003]; Seldon, 21 AD3d at 840-41; Modlin, 121 AD3d at 464). Similarly, the First Department has consistently held that the statutory presumption set forth under the Heart Bill is sufficiently rebutted if the cause of the disabling condition is unknown (See Titza v. Kelly, 138 AD3d 498 [1st Dept 2016] [presumption rebutted by credible evidence that the etiology of petitioner's strokes was unknown and there was no evidence of hypertension or coronary artery disease]; Hogg, 93 AD3d 507 [where the Heart Bill presumption rebutted by physician's opinion that petitioner's stroke was caused by congenital condition, the court noted that the second physician's opinion that the stroke was of unknown origin would be sufficient by itself to rebut the presumption]; Matter of Hutnik v. Kelly, 37 AD3d 346, 346 [1st Dept 2007] [presumption rebutted by medical evidence that petitioner did not suffer from hypertension and the absence of evidence of "any other possible cause for the condition"]; Matter of Walsh v. Bd. of Trustees of the NY City Police Dept., 37 AD3d 370, 370 [1st Dept 2007] [presumption rebutted where objective medical evidence confirmed "that petitioner's dilated cardiomyopathy was not accompanied by stress-related coronary artery disease or hypertension, and conclusion of various doctors that petitioner's disabling condition was of unknown origin"]; Stegmuller v. Brown, 216 AD2d 23 [1st Dept 1995] [holding that the Medical Board was not required to identify the actual cause of petitioner's arrhythmia, premature ventricular contractions]). Additionally, petitioner's reliance on Dr. Wilkenfeld's opinion that his job related-stress attributed to his arrhythmia is equally unpersuasive based on the negative findings of petitioner's 2D echocardiogram and cardiac catherization reports.

Bitchatchi, on which petitioner relies, does not change the outcome. In Bitchatchi, the Court of Appeals decided three separate appeals of former police officers' right to World Trade Center- ADR benefits. Ordinarily, the burden is on the applicant to establish that his disabling injury constitutes an accident for ADR purposes. However, in response to the World Trade Center tragedy, "a new statute was enacted creating a presumption in favor of ADR benefits for police officers who performed rescue, recovery or cleanup operations at specified locations, including the World Trade Center" (Bitchatchi, 20 NY3d at 276; See Administrative Code of City of New York 13-252.1[1][a]). The World Trade Center Law set forth a presumption "that if any condition or impairment of health is caused by a qualifying World Trade Center condition as defined in section two of the Retirement and Social Security Law ["RSSL"], it shall be presumptive evidence that it incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by such member's own willful negligence, unless the contrary be proved by competent evidence" (Administrative Code of City of NY § 13-252.1). Unlike the typical application for ADR, a pension fund cannot deny ADR benefits by relying solely on the absence of credible evidence of causation (Bitchatchi, 20 NY3d at 281-282). To take advantage of the presumption, the petitioner must establish that: (1) he worked the requisite hours at the World Trade Center site; and (2) he suffers from a statutorily defined qualifying condition (Bitchatchi, 20 NY3d at 276-277; RSSL § 2 [36] [g] and[c]). Pursuant to RSSS § 2 (36) (c) (i)-(v), a qualifying medical condition shall include diseases of the upper respiratory tract, diseases of the lower respiratory tract, diseases of the gastroesophageal tract, disease of the skin, "or new onset diseases resulting from exposure as such diseases occur in the future including cancer, asbestos-related disease, heavy metal poisoning, and musculoskeletal disease."

Here, the petitioner has failed to establish that his condition constitutes a World Trade Center qualifying condition. Notably, in Dr. Wilkenfeld's September 30, 2014 consultation report, he states "[w]e reviewed [petitioner's] exposure at Ground Zero in detail. [Petitioner] understands that the heart disease in question is unrelated to these exposures" (respondents exhibit 29).[FN10] Moreover, petitioner does not claim that his syncope is linked to his World Trade Center exposures nor does the petition address whether petitioner worked the requisite number of hours to qualify under same. As such, the petitioner is not entitled to the World Trade Center presumption and his reliance on Bitchatchi is misplaced. Accordingly, it is

ORDERED and ADJUDGED that respondents' decision to deny petitioner ADR is affirmed and the petition is dismissed in its entirety.

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

Dated: November 27, 2017

ENTER:

_______________________________________

CARMEN VICTORIA ST. GEORGE, J.S.C. Footnotes

Footnote 1:Petitioner also sought production of certain records pursuant to CPLR § 2307 (a). Ver. Pet., Wherefore clause at 2. At oral argument on September 21, 2017, counsel for petitioner withdrew that request. Tr. at 16-18.

Footnote 2:Tachycardia: abnormally rapid heart rate, usually taken to be over 100 beats per minute. See website of MedicalDictionary at https://medical-dictionary.thefreedictionary.com/tachycardia (last viewed November 15, 2017)

Footnote 3:Syncope . . . "[a]lso called fainting." (See Ver. Ans. at FN 5 citing Mosby's Dictionary of Medication, Nursing & Health Professions at 1729 (9th ed. 2013) (hereinafter "Mosby's Dict.").

Footnote 4:Ischemia: inadequate blood supply to a local area due to a block of blood vessels leading to that area. See website of MedicineNet at https://www.medicinenet.com/script/main/art.asp?articlekey=4052 (last viewed November 15, 2017)

Footnote 5:Ventricular tachycardia: refers to "tachycardia of at least three consecutive ventricular complexes with a rate greater than 100 beats/min. It usually originates in a focus distal to the branching of the atrioventricular bundle." Mosby's Dict. at 1868.

Footnote 6:Arrhythmia refers to "any deviation from the normal pattern of the heartbeat." See Ver. Ans. at FN 18 citing Mosby's Dict. at 133.

Footnote 7:Rajeswara Patcha, M.D., Director of Cardiac Catherization Lab at Huntington Hospital and author of catherization report dated October 24, 2013.

Footnote 8:Petitioner's cardiologist who interpreted petitioner's September 19, 2013 2D echocardiogram.

Footnote 9: Petitioner would be entitled to a 3/4 final salary pension primarily tax free under ADR. The value of his ODR pension is equal to 1/2 of his final salary and is taxable.

Footnote 10:Dr. Wilkenfeld's report further states that petitioner believes that "his only World Trade Center related medical condition is the GERD. He has no respiratory, psychiatric, or sinus rhinitis symptoms." Respondents Exhibit 29. While GERD or "Gastro-Esophageal Reflux Disease" might be considered a qualifying physical condition under RSSS § 2 (36) (c) (iii), petitioner is not alleging that his disabling condition warranting ADR stems from GERD, but rather syncope.