D'Amico v O'Neill

[*1] D'Amico v O'Neill 2018 NY Slip Op 50450(U) Decided on March 26, 2018 Supreme Court, New York County Jaffe, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 26, 2018
Supreme Court, New York County

Maria D'Amico, Petitioner, For a Judgment under Article 78 of The Civil Practice Law and Rules,

against

James O'Neill, as the Police Commissioner of the City of New York, and as Chairman of the Board of Trustees, ex officio, 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.



100370/2017



For petitioner:

Chet Lukaszewski, P.C.

3000 Marcus Avenue - Ste. 1E5

Lake Success, NY 11042

516-775-4725

For respondent:

Corporation Counsel

100 Church Street, RM 4-313

New York, NY 10007
Barbara Jaffe, J.

The following papers, numbered 1-6, were read on this Article 78

Notice of Petition/Petition—Exhibits—Memo of Law No(s) 1-4

Verified Answer—Memo No(s) 4-5

Replying No(s) 6

By verified petition, petitioner seeks a judgment reviewing and annulling the denial of her application for Heart Bill death benefits in connection with the death of her husband, a police officer, a declaration that the denial is arbitrary and capricious, and an order that respondents award her Heart Bill death benefits, or in the alternative, a remand of the application for benefits.

I. VERIFIED PETITION

Petitioner's deceased husband, Michael D'Amico, was appointed a New York City police [*2]officer on July 10, 2006, when he was 29 years old. On November 12, 2013, at the age of 35, D'Amico died in his sleep. At that time, he was six feet tall and 290 pounds. The deputy chief medical examiner who performed an autopsy of D'Amico on November 13 reported on his cardiovascular system, in pertinent part, as follows:

The aorta and its major branches have a normal architecture. There is minimal intimal atherosclerosis. . . . There is a right dominant epicardial coronary artery supply with patent ostia. There is atherosclerotic narrowing of the proximal two-thirds of the left anterior descending artery. There is up to 70% stenosis. There is 80% atherosclerotic narrowing of the diagonal branch. The right coronary and left circumflex arteries are widely patent. The atrial and ventricular septa are intact. The cardiac valves are unremarkable. The myocardium is brown. There are no focal abnormalities.

The medical examiner identified the cause of D'Amico's death as obesity with cardiac hypertrophy, with atherosclerotic cardiovascular disease contributing to his death. He also noted marked coronary artery atherosclerosis. (Exh. B).

In an histology report he prepared, the medical examiner states that "the section of coronary artery shows approximately 60% atherosclerotic luminal stenosis . . . [with] focal areas of perivascular fibrosis. . . ." In D'Amico's lungs, there were "focal autolysis" and "vascular congestion," and in his liver, "extensive hepatocyte cytoplasmic vacuolation." His kidney reflected "marked vascular congestion." (Exh. B). A forensic toxicology laboratory analysis of D'Amico's blood revealed the presence of alprazolam, nordiazepam, 7-aminoclonazepam, oxycodone, and acetaminophen. (Exh. C). In addition to those substances, an analysis of his urine revealed the presence of alpha-hydroxyalprazolam, oxazepam, oxymorphone, hydrocodone, and hydromorphone. (Verified Answer, Exh. L).

On December 3, 2013, petitioner sought Line of Duty Heart Benefits pursuant to the New York City Administrative Code § 13-244, contending that her husband's death resulted from a heart condition. (Exh. G). Based on the autopsy report, histology report, and forensic toxicology laboratory report, a three-physician panel of the Medical Board of the Police Pension Fund II (Medical Board) evaluated the application, noted the absence of evidence of acute cardiac event in the gross or microscopic reports, and recommended that the application be disapproved. (Exh. H).

On July 11, 2014, petitioner's application was considered by the Pension Fund's Board of Trustees (Fund) at a meeting at which an attorney from the Patrolmen's Benevolent Association advocated on petitioner's behalf. Relying on the medical examiner's finding of cardiac hypertrophy and coronary artery disease, petitioner's attorney queried whether a stress-related pathology had been eliminated by the Medical Board as the cause of D'Amico's death, and argued that the absence of evidence of an acute cardiac event does not prove that D'Amico did not die of coronary artery disease. (Exh. I).

On remand from the Fund, the Medical Board reconsidered petitioner's application and concluded in a response to a July 23 remand from the Fund, that there was no evidence that D'Amico suffered a heart attack, notwithstanding the evidence of coronary atherosclerosis, which is "widespread and not an unusual finding." It explained that for coronary artery disease to play a role in the death, there must be an acute complication of the atherosclerotic lesion in one of the coronary arteries, and that none had been found. Otherwise, it continued, coronary atherosclerosis from an acute ischemia may be brought on by an acute mental or physical stress, hypoxemia, anemia, or severe sepsis, none of which was shown as no information was offered as [*3]to D'Amico's medical history, the circumstances of his death, and the significance of the drugs found in his system. Thus, the Medical Board adhered to is recommendation that petitioner's application be disapproved. (Exh. J).

By letter dated April 20, 2015, petitioner, now represented by present counsel, submitted to the Fund a report in support of her application, prepared by cardiologist Bruce Charash, MD (Exh. W), in which he opined that the medical evidence "unequivocally proves (with near 100% medical certainty) that Mr. D'Amico died from stress related heart disease in the full letter and spirit of the heart bill," and that the Medical Board was "absolutely wrong" in finding that D'Amico did not die of a stress-related cardiac condition. Rather, he asserted, "long-standing chronic conditions" could not have caused D'Amico's abrupt death, as his liver function tests were "totally normal," as were other indicia relating to his liver. (Exh. X).

Charash also claimed that D'Amico was "clearly obese" when hired, and remained so to his death, and that such obesity does not cause an acute sudden death, observing that D'Amico was not known to have suffered from any medical condition created or worsened by obesity. He thus attributed D'Amico's death to his "profound left ventricular hypertrophy" and his "'marked' coronary atherosclerosis," which was "rather significant given his young age of 35," and reiterated that "the type of unreasonably increased chronic job stress was certainly a major contributory reason for his having developed such severe disease at his young age." (Id.). He characterized D'Amico's left ventricular hypertrophy as "profound" and "unusually thickened and extremely uncommon." (Id.).

Charash attributed D'Amico's hypertrophy to a significantly increased proclivity to electrical destabilization of his heart which, in combination with the "significant alteration of the heart muscle architecture," made D'Amico more susceptible to sudden cardiac arrest, along with the two blockages which could create acute ischemic attacks and thereby cause sudden death. He acknowledged, however, that such an underlying basis "is obviously contingent on the absence of a clear alternative pathologic basis for [D'Amico's] sudden death," and that the autopsy report contains no clear alternative pathologic basis for the sudden death. (Id.).

In observing that the absence of an acute clot in the coronary artery or ruptured plaque does not reduce the likelihood that D'Amico died from heart disease, Charash asserted that more than 50 percent of those who die from an acute heart attack, even if by a blood clot, will not show a clot on autopsy, and that an absence of ruptured plaque is found in five percent of the 80 percent of those who die from acute myocardial infarction with inflammation and/or rupture of the plaque surface. He criticized the histology study for evaluating only one of the two blockages, and claimed that the other "could easily have pathologic changes of acuity." (Id.). He also claimed that one who suffers a heart attack does not demonstrate pathologic changes in his heart muscle unless he survives the attack for at least 24 hours. Thus, he argued, the absence of pathological changes in D'Amico's heart muscle is immaterial given his sudden death. (Id.).

Charash also opined that there is "absolutely no other reasonable alternative reason on autopsy found to explain [D'Amico's] sudden death other than it being related to his significant underlying coronary artery disease in conjunction with his left ventricular hypertrophy," and that most such instances of sudden death occur during sleep, rest, or very light activity. (Id.).

On May 13, 2015, the Fund remanded petitioner's case to the Medical Board, which stated on July 17, 2015, that it reviewed Charash's report and reiterated that the medical evidence reflected no background medical history, while the reports revealed the presence, unexplained, of psychotropic medications and analgesics. It speculated that

in the presence of other disease processes, the coronary artery disease could contribute to the death. . . . [and that] we could postulate that because of [D'Amico's] obesity he has had sleep apnea, that together with the medication[s] which were detected in his system he had periods of low oxygen saturation (hypoxia) and this together with the coronary artery disease could trigger a fatal arrythmia.

(Exh. AA). Still, the Board added, the presence of left ventricular hypertrophy in the absence of a history of hypertension "cannot be attributed to the stress of the work as a police officer," although it increased the degree of the atherosclerotic lesions, which also did not "per se" cause D'Amico's death. It thus adhered to its disapproval of petitioner's application. (Id.).

By letter dated November 5, 2015, petitioner offered a second report prepared by Charash, and contended that the Board did not cite "competent and credible" evidence in support of its contentions concerning other possible causes of D'Amico's death, such as sleep apnea and medications. (Exh. CC).

In this report, Charash relied on the Board's acknowledgments that coronary artery disease could have contributed to D'Amico's death and that job stress could have increased his atherosclerosis as indications that the Board agreed that D'Amico had "prematurely advanced coronary artery disease as a result of work-related stress." (Exh. DD). He also contended that D'Amico had never been diagnosed with sleep apnea, and that nothing supported the Board's theory that the medications may have been related to the suppression of D'Amico's breathing. Given the many possible and alternative causes of death, Charash stated that the two heart-related causes of death resulted from job-related stress, and took issue with the Board's conclusion that absent hypertension, the left ventricular hypertrophy was not attributable to stress, explaining that "a large number" of patient have hypertension only during stressful periods, which leads to left ventricular hypertrophy. Absent any other medical condition or clinical circumstance for developing the hypertrophy, it must have been stress, he opined. (Id.).

The Fund granted petitioner a third remand (Exh. EE), and by report dated February 19, 2016, the Medical Board again declined to approve petitioner's application, finding that Charash's new report, absent any facts relating to D'Amico's previous state of health or cause of death, consisted solely of his opinion. (Exh. GG).

By letter dated August 9, 2016, petitioner submitted a third report from Charash, dated July 5, 2016, explaining how the Medical Board had ignored his opinion as to why the facts demonstrate that D'Amico suffered a stress-related sudden cardiac death. (Exh. LL, MM, NN). In remanding the application to the Medical Board, the Fund asked it to clarify the finding as to (1) whether the Heart Bill applies, given its observation that there was evidence of a heart attack and its finding that "it cannot be assumed that the presence of coronary arteriosclerosis, per se, is the cause [of] death," and if the Heart Bill applies, that the Medical Board clarify whether there is credible evidence in the record to rebut the presumption, meaning, did factors other than stress cause D'Amico's disabling heart condition. (Exh. OO).

On this fourth remand, the Medical Board denied having stated that there was evidence of a heart attack or that D'Amico had a disabling heart condition, and thus adhered to its finding that there is no clinical or objective evidence that D'Amico's demise was due to coronary or hypertensive heart disease. (Exh. PP).

Petitioner sent the Fund another report prepared by Charash, who stated that the Medical Board's denial is "medically invalid and simply dismisses the medical findings from [D'Amico's] autopsy report and the nature of sudden cardiac death," and reiterated his opinions. (Exhs. QQ, [*4]RR).

On December 14, 2016, the Medical Board noted on fifth remand the absence of any new information supporting petitioner's application and denied relief. (Exh. SS). Given what she deemed a lack of sufficient consideration of her and Charash's arguments, petitioner sought reconsideration. (Exh. UU). The Fund reconsidered petitioner's application on January 11, 2017, and stated on the record that given the competing medical opinions presented, it was warranted in relying on the Medical Board's expertise. (Exh. VV).

Based on the foregoing, petitioner contends that respondents' determination is arbitrary and capricious, unlawful and contrary to law for failing to use the proper legal test for determining entitlement to Heart Bill death benefits.

II. VERIFIED ANSWER

Respondents maintain that given the conflicting medical opinions, the Fund may rely on the Medical Board's opinion, and that the court may not substitute its judgment on medical issues for that of the agency designated to resolve such conflicting opinions. Rather, the court is limited in its review to whether the determination is supported by credible, of-record medical evidence.

III. CONTENTIONS

A. Petitioner

Petitioner's 51-page memorandum of law [FN1] boils down to her argument that having ignored the purpose and intent of the Heart Bill, misinterpreted the facts, evidence, and "medical realities" by basing their determination on speculation and an absence of proof, respondents did not rebut the Heart Bill's presumption of causation with competent and affirmative evidence disproving causation. She also asserts that respondents failed to act lawfully, in a nonarbitrary manner or consider the totality of the evidence and circumstances, and concludes that based on the autopsy report, she succeeded in demonstrating that her husband's "severe" left ventricular hypertrophy and "premature" coronary artery disease were "diseases of the heart" that were causally related to the "chronic excessive stress of his police career."

B. Respondents

Claiming that petitioner fails to meet her threshold burden of demonstrating that D'Amico died of heart disease due to a stress-related condition, and based on their reasonable and lawful conduct in denying her benefits under the Heart Bill, respondents seek dismissal of the petition. They argue that the presumption accorded applicants for benefits is inapplicable here absent evidence offered by petitioner that D'Amico suffered from "significant coronary artery disease" and "significant hypertension." Thus, the presumption applies only if it is demonstrated that the death was caused by heart disease in the first instance.

Respondents observe that the Medical Board's thorough review of the autopsy, histology, and forensic toxicology laboratory reports, resulting in the finding that D'Amico's death was not caused by a stress-related heart condition is rational, reasonable, and based on credible evidence and the absence of an indication of an acute cardiac event. They also rely on the Medical Board's [*5]observation that D'Amico's coronary atherosclerosis is not unusual and thus cannot be presumed to be the per se cause of death, especially in the absence of a history of hypertension or any medical history, and given the presence in his system of several psychotropic and analgesic drugs.

Respondents also argue that petitioner's expert presents a conflict in medical opinion, and that given the final authority of the Medical Board to resolve such conflicts, the Medical Board's opinion governs.

C. Petitioner's reply

Petitioner argues that respondents rely on the wrong standard of "some credible evidence." Rather, she maintains, the standard as to whether the presumption was rebutted is competent and affirmative evidence which disproves causation. Thus, she adds, the Medical Board's authority to resolve a conflict of expert opinion is inapplicable.

IV. ANALYSIS

General Municipal Law § 207-k(a) provides, in pertinent part, that

any condition of impairment of health caused by diseases of the heart, . . . resulting in . . . death to a paid member of the uniformed force of a paid police department, . . . , shall be presumptive evidence that it was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.

A. Did D'Amico have a condition of health caused by diseases of the heart?

The statute first requires that petitioner demonstrate that D'Amico suffered a "condition of impairment of health caused by diseases of the heart." (Matter of Appleby v Herkommer, 165 AD2d 727, 729 [1st Dept 1990] [presumption in GML § 207-k applies only if it is demonstrated that disabling or fatal condition caused by heart disease in first instance]).

On the first of five remands, the Medical Board credibly explained that although there was evidence of coronary atherosclerosis, a not unusual finding, there was no evidence that D'Amico suffered a heart attack, and that absent an acute complication of the atherosclerotic lesion in one of the coronary arteries, coronary artery disease did not play a role in D'Amico's death. Charash's opposing opinion that there was a "significant alteration of [D'Amico's] heart muscle architecture" contradicts the medical examiner's findings that there was no evidence of an irregularity in the aorta and its major branches ("normal architecture") and that there was "minimal intimal atherosclerosis."

Charash's contrary opinions present a conflict that must be resolved by the Medical Board and Fund, not by the court. (Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 761 [1996]). The Medical Board considered Charash's opinion on repeated remands, and adhered to its opinion, which must be credited. That left ventricular hypertrophy (LVH) has been found to be indicative of heart disease (Matter of Knorr v Kelly, 35 AD3d 326 [1st Dept 2006]; Matter of McCarthy v Bd. of Trustees of New York City Police Pension Fund, 306 AD2d 156 [1st Dept 2003] [undisputed evidence that petitioner had stress-related heart disease, including LVH, raised presumption that respondents failed to rebut]; Matter of Lunt v Kelly, 227 AD2d 200 [1st Dept 1996], lv denied 90 NY2d 803 [1997]; but see Matter of Pellicane v Kelly, 106 AD3d 558 [1st Dept 2013], lv denied 22 NY3d 858 [no evidence petitioner's hypertension had caused LVH]), does not control given the Medical Board's opinion that absent evidence of hypertension, the presence of LVH does not signify heart disease here.

Consequently, petitioner did not satisfy her burden, in the first instance, of demonstrating that her husband had a condition of impairment of health caused by diseases of the heart, [*6]especially in the absence of any medical records preceding D'Amico's death.

B. Assuming entitlement to the presumption, did respondents rebut it?

To the extent that petitioner has shown entitlement to the statutory presumption, and given petitioner's position on the burden of proof required to rebut the presumption, I first observe that various panels of the Appellate Division, First Department, have set forth various burdens of proof. (Matter of Titza v Kelly, 138 AD3d 498, 498 [1st Dept 2016] ["credible evidence"]; Matter of Ploss v Kelly, 113 AD3d 531, 531 [1st Dept 2014] ["competent and credible evidence"]; Matter of Ginther v Kelly, 109 AD3d 738, 739 [1st Dept 2013] ["competent evidence"]; Matter of Pellicane, 106 AD3d at 558 ["credible medical evidence"]; Matter of Goodacre v Kelly, 96 AD3d 625, 626 [1st Dept 2012, lv denied 20 NY3d 860 [2013] ["some credible evidence"], In re Zaborowski v Kelly, 93 AD3d 436, 436 [1st Dept 2012], lv denied 19 NY3d 813 ["credible evidence"]; Matter of Higgins v Kelly, 84 AD3d 520, 520 [1st Dept 2011], lv denied 18 NY3d 806 [2012] ["competent evidence"]; In re DeMonico v Kelly, 49 AD3d 265, 266 [1st Dept 2008] ["objective medical evidence"]; Matter of Knorr, 36 AD3d at 326 ["credible medical evidence"]; Matter of McNamara v Kelly, 32 AD3d 747, 747 [1st Dept 2006], lv denied 8 NY3d 810 [2007] ["objective medical evidence"]; Matter of Lunt, 227 AD2d 200 ["competent evidence"]). To the extent these burdens differ significantly from "some credible evidence," is of little significance in this case.

However, the identification of other possible causes of a decedent's heart ailment was held insufficient to rebut an opposing medical opinion that job stress impacted the decedent's heart condition. (Matter of Ploss, 113 AD3d at 531). Thus here, the possibilities articulated by the Medical Board that D'Amico's death was caused by the volume and variety of medications in his blood and urine and/or the possibility that he suffered from sleep apnea would not rebut the presumption, if applied here.

It has also been held that "[a] finding of unknown origin [of the petitioner's heart disease] itself rebuts the statutory presumption that the disabling condition was incurred in the line of duty." (Matter of Hogg v Kelly, 93 AD3d 507, 507 [1st Dept 2012]; see also Matter of DeMonico, supra [presumption rebutted as evidence demonstrated that petitioner's cardiomyopathy of unknown origin and in absence of history of hypertension]). Here, absent any records other than those associated with D'Amico's autopsy, an identification of an origin for the condition that resulted in his death would be speculative. To that extent, the origin is unknown, a circumstance that Charash did not sufficiently address.[FN2] Thus, although the Medical Board acknowledged that coronary atherosclerosis from an acute ischemia may be caused by a variety of conditions, including acute mental or physical stress, it credibly concluded that absent any information about D'Amico's medical history, the circumstances of his death, and the significance of the drugs found in his system, an inference of causation from job-related stress could not be drawn. A finding in favor of petitioner on this issue and in these circumstances would be speculative.

In any event, as the record offers conflicting medical opinions as to whether the statutory presumption was rebutted, and contrary to petitioner's argument, it remains "the sole province" [*7]of the Medical Board and the Fund, not the court, to resolve the conflicts in determining whether the presumption, if any, was rebutted. (See eg, Matter of Higgins, 84 AD3d 520 [sole province of Fund to resolve conflicts in evidence as to whether statutory presumption applied]).

V. CONCLUSION

Accordingly, it is hereby

ORDERED and ADJUDGED, that the petition is denied and the proceeding is dismissed.

Dated: March 26, 2018

Hon. Barbara Jaffe, J.S.C. Footnotes

Footnote 1:Counsel disregarded my part rule limiting submissions to 25 pages by submitting a 51-page memorandum of law. He included most if not all of the facts that he had set forth in the petition, which, in and of itself, is repetitive. His legal argument does not appear until page 39, and it includes six single-spaced pages of the facts that had already been repeated. However, in the interest of judicial economy, I do not reject the papers.

Footnote 2:There is also no factual basis for Charash's assertions that D'Amico was "clearly obese" when hired, that he had never been diagnosed with sleep apnea, and that D'Amico was not known to have suffered from any medical condition created or worsened by obesity.