Matter of Smiley v Whinnery

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Matter of Smiley v Whinnery 2021 NY Slip Op 32640(U) December 13, 2021 Supreme Court, Kings County Docket Number: Index No. 501895/2021 Judge: Loren Baily-Schiffman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*IFILED: 1] KINGS COUNTY CLERK 12/13/2021 03:33 PM NYSCEF DOC. NO. 82 INDEX NO. 501895/2021 RECEIVED NYSCEF: 12/13/2021 At an lAS Part 65 of the Supreme Court of the State of New York, Cpunty of Kings at a Courthouse Located at 360 Ac amsStreet,Brooklyn, New Yorkon the 13 th day of December; 2021, PRESENT:·HON. LOREN BAILY-SCHIFFMAN JUSTICE ·-------------- - - ------ -----~--------~--- - ---In the Matter of the Application of, Index No.: 501895/2021 GARY SMILEY, Motion Seq.# 1 Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules DECISION & ORDER - against ME LAN IE WH INN ERV, as the· Executive Director ofthe NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, THE BOARS OF TRUSTEES and THE MEDICAL BOARD of the NEW YORK CITY RETIREMENT SYSTEM, I ·-- --- ------ ------------- :·1 Respondents. ---- --. --- -~---- -- --' I As required by CPU~ 2219(a); the following papers were considerei in the review of this motion: PAPI RS NUMBERED Notice of Petition, Petition & Exhibits Petitioner's Memo cif Law 1 2 Respondent's Ariswer to Petition & Exhibits Respondent's Memo of Law Petitioner's Reply Memo of Law B ~ ;, Upon the foregoing papers in this CPLR Article 78 proce1 ding Petitioner, GARY SM ILEY (Smiley), seeks a Judgment reviewing and annulling the determination of Respondents, MELANIE WHIN N ERV, as the Executive Director of the NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, THE BOARD OF TRUSTEES and THE MEDIC AL BOARD of the NEW YORK CITY RETIREMENT SYSTEM, that denied PE!titioner's·applicatioh disability benefits pursuantto RSSL.§ 607-b.c.1! (a), 1 1 of 12 or Performance of Duty (POD} [*FILED: 2] KINGS COUNTY CLERK 12/13/2021 03:33 PM NYSCEF DOC. NO. 82 INDEX NO. 501895/2021 RECEIVED NYSCEF: 12/13/2021 BACKGROUND Petitioner was employed as a paramedic for the City·· 2001. New York on September 11, Mr. Smiley arrived at the World trade Center (WTC) sit before either tower collapsed and began participating ih the rescue efforts. However, Petiti nerbecame trapped underneath the rubble when tht:rNorth Tower fell and was.not rescued u tilseveral hours.later. After Petitioner was found he was taken by ambulance to·Long Isla d College Hospital where he was admitted overnight. Petitioneneturned to light duty on Cir ab ut September 17 th and to full duty atthe WTC site on October 20, 2001. He was assigned to the recovery operation and as a stand-by paramedic until November 30, 2001. Petitioner's sy ptoms began while he was working at Ground Zero and during th at ti me he sought treat ent for sin us and ear infections. The record indicates that Smiley presented to the WT Health Program at Mount Sinai Hosp ita I in October of 2002 and complained of faci aI pain, sin s con gestioh, ear pa ih; throat irritation, cough and chest tightness.The symptoms persisted, increased in severity and by 2007 were accompanied by headaches, facial pressure and diz ihess. These newer symptoms also affected his balance, caused motion sickness and require Petitioner to lie down. The record confirms ·"frequent incidents of random loss of balance and disequilibrium especially with head/eye and body movements ... " 1 Th is is the third time Mr. Sm Hey has brought a Petition o annul Respondents' denial of his application for.dis;;ibility retirement benefits for iiljuri¢s rec Jved as a resu.lt of his work at the WTC site. The conditions reported on the first application i duded: WTC exposure; extrinsic asthma, chronic sinusitis, chronic rhinitis:, proionged 1 PT.SD, GE D, chronic dizziness, chronic Exhibit "F;, annexe.d to Petition. 2 . 2 of 12 ···········--············-·················------------------------~-- [*FILED: 3] KINGS COUNTY CLERK 12/13/2021 03:33 PM NYSCEF DOC. NO. 82 INDEX NO. 501895/2021 RECEIVED NYSCEF: 12/13/2021 headaches, kidney cysts, chronic ear infections, chronic nasaJ congestion, chronic respiratory infections, pain, weakness, depression, facial and eye pain, hilethat application Was pending the Workers' Compensation Board awarded Petitioner a 45% ermanent partial disability on December 26, 2013. The conditions set forth in the award we e: reactive airwc1y disease, eye irritation, shortness of breath, sinusitis & PTSD. NYCE RS Med ica I Boa rd reviewed Petition er' s a pp Ii cati n for di sa bi Iity retirement benefits on February 4i 2014. At that time the Boardcondud that none of Petitioner's reported conditions were severe enough to preclude his work as a paramedic. Smiley's clairn for PTSD was re:ferred to a NYCE RS consulting psychiatrist. Dr. obert Reich examined Mr. Smiley and concluded that while the record failed to give ade ate details, Petitioner suffered from major depression, mild generalized anxiety and paranoid personality; The Board recommended thatthe application be denied on March 11, 20 4and stated 1'thatthe documentary and clinical evidence fail to substantiate that Ga Smiley is disabled from performing the duties of a Paramedic with the FDNY." 2 The Board ofTrustees reviewed the Medical Board's re ort andremandedthe application back to consider the additional medical documenta ion that Petitioner submitted. After their review of documentation from Dr. Altman, an ENTs edaHst, Dr. Michael Crane, Director ofthe WTC Health Program at Mount Sinai Hospital, a d additional documentation of Petitioner's psychiijtric symptorris1 the Medical Board reiterate its prior determination but conducted a further interview and examination of Smiley. ·2 Exhib.it "K'; annexed tothe Petition .. 3 3 of 12 [*FILED: 4] KINGS COUNTY CLERK 12/13/2021 03:33 PM NYSCEF DOC. NO. 82 INDEX NO. 501895/2021 RECEIVED NYSCEF: 12/13/2021 The Med ica I Boa rd noted that Petitioner had developed· stagm us which can affect balance and coordination. In fact, the record indicatesthatP titioner's balance and dizziness symptoms continued to get worse over ti rli e. Also Ii ewly not was p eri ph era I ves:ti bu la r (inn er ear) disease which also contributes to dizziness. Although the record reflects that Petitioner had been reporting many of the above symptoms, the Med icai Bo rd determ ineq that the medical documentation submitted was insufficient to support that dia nosis and therefore denied the application on December 23, 2014. Petitioner submitted additional evidence, however; the ap licatloh was denied again because the Medical Board found none of Smiley's conditions onstituted a functional disability that·would affect his performance asa paramedic, Again, the oard of Tri.Jstees·remanded the application back to the Medical Board and on December 8, 20 5 the Medical Board interviewed and examined Smiley again but upheld its previous determinat oh. The Board of Trustees adopted the recommendation ofthe Medical Board and denie Smiley's application on March 11, 2016. The second Petition for a Judgment pursuant to CPLR A icle 78 to review and annulthe dedsion of NYCE RS Board of Trustees was: brought on July 1, 2 16; lri a Dedsion and Order dated January 6, 2017, Hon. Lara Genovesi held th at the Medic I Board's findings were conclusory at best and unsupported by an articulated medical pinion which did not permit adequate.judicial review. At thc:ittime the matter was again re·. anded.to the Medical Board for ah adequate statement of the factual basis for their findings an . a new determination by the B_oard of Trustees. 4. 4 of 12 [*FILED: 5] KINGS COUNTY CLERK 12/13/2021 03:33 PM NYSCEF DOC. NO. 82 INDEX NO. 501895/2021 RECEIVED NYSCEF: 12/13/2021 After the application was remanded the Medical Boar found thatthe documentary and clinical evidence supported a finding of disability b,;1sed on a sychiatric condition, not on a physical condition, and at a November 9, 2017 meeting, the B ard of Trustees adopted the Medical Board's recommendation and granted Petitioner's A plication based on a psychiatric disability (PTSD) only. Mr. Smiley, by Notice of Petition dated ebruary 20, 2018, broughta proceeding to modify the determination of the Board of Trust es and grant his application based upon a physical disability as well. While that Petition w spending the FDNY revised its job descri ptl on· for paramedics. By sti puIation dated August 9, 2018,. Smiley discontinued th at proceedingandthe parties agreedto a further review utilizin the revised Job description for paramedics. The riew description for paramedics includes but is not limited to: exposure to potentially infectious disease, bending and kneeling to provid care, lifting patients weighing more than 200 pounds and climbing up ten flights of stairs whi e carrying forty pounds of eq uipment3. The record is replete with evidence of Mr. Smiley disequilibrium and dizziness. The Medical Board conducted an interview and examination o December 4, 2018 and con duded agairi that none of Petitioner's conditions were disa Ii rig and recommended that his application for benefits based upon a physical disability·be den ed. The Board of Trustees did ilot adopt the Medical Board' recommendation, but rather permitted Mr. Smiley to submit additional documentation to .s pport his claim. Petitioner sent addi.tional. medical documentation to the Medicc:11 Bo~rd for th ir r.eview on August 23, 201s; May 29, 2019, June 28;2019, September 10, 201~, October 1, 3 Exhibit Qannexed to .Petition. 5 of 12 19 and October 17, 2019. [*FILED: 6] KINGS COUNTY CLERK 12/13/2021 03:33 PM NYSCEF DOC. NO. 82 INDEX NO. 501895/2021 RECEIVED NYSCEF: 12/13/2021 During: this process, NYCERS sent notices to Petitione reflecting that the Medical Bqard did not be Iieve 'th at any of the documentation warranted fur her consideration. Sometime after the October 17th submission, the Medical Board recqmmend d that Petitioner's application be denied 1:Jeca use· Petitioner had no functiona I impairnient that would preclude him from performing his duties as a paramedic. Although the Board Of rustees adopted the Medical Board's determination on Octqber 29,2019, the:v stated that t ey would accept updated medical documentation. NYCERS sent notice to Petitioner on November 20, 20 stating that the Medical Board reviewed the new evidence (submitted November 14, 2019) a d conc:-luded again that it did not warrant further consideration. The Board Of Trustees adopted he findings of the Medical Board but stated again that new medical evidence in further support f Petitioner's application would be accepted thrOL1gh December 23, 2019. The Medical Board i sued a report of their findings allegedly based on the newly submitted evidence oh February 8, 2020. Again; the Medical Board found that petitioner did not suffer from. a functional im airment that would preclude him from performing his duties as a paramedic. The Board of T ustees adopted the Medical Board's findings on November 12:, 2020 and advised Petitioner gain that his application had been denied on November 30, 2020. Gary Smiley filed the insta t Petition to annul the Board of Trustees final determination on January 5, 2021. The Medical Board Reportthatforms.the.basis of the de. ialuponwhich thlsthird Petition is based was-issued on September 101 2019 and states hat it is an addendum to their prior report dated December 4, 2018. That report referred toe dence submitted with the first petition filed 'in.2014. The Medical Board recommended that M Smiley's application be denied 6 6 of 12 [*FILED: 7] KINGS COUNTY CLERK 12/13/2021 03:33 PM NYSCEF DOC. NO. 82 INDEX NO. 501895/2021 RECEIVED NYSCEF: 12/13/2021 in both the report issued in December of2018 and the last on issued cm September 10; 2019. In the 2018 report the Medical Board concluded that Petition r's chronic sinus disease was not of the severity that would preclude his ability to perform the uties of a paramedic. Ufilizing the new paramedic job description, the Med ica I Boa rd reached th very same conclusion as they had in their prior report andrecorn111ended denial of Petitione 's application. Petitioner's Medical Evidenc As early as May 30, 2014 Petitioner complained that hi dizziness was getting worse c:ind that he had a perpetual 'feeling of fogginess and frequent incid nts of loss of balance. Dr. Michael Crane, Director.ofthe WTC Health Program at Mt. Sin i saw Petitioner on multiple occasions. On November 13, 2014, he reported thatPetitioner was certified by NIOSH (National Institute of Occupational Safety and Health) for WTC,.related D sthymTa, Rhinowsinusitis, Asthma and GERO. Dr. Crane further opined, "This constellatio of symptoms; ii:lduding the unpredictable qccurrence of disequilibrium dearly cori:lprori:lis s Mr. Smiley's ability to perform patient care and transportation of an FDNY EMT,4 "At this poin , due to the need for frequent absences and the overwhelming nature of his symptoms, he is isabled even for sedentary work; His symptornsappear to be multifactorial in origin but ar clearly related to his WTCsite exposure." In the 2018 report the Medical Board merely concludes hatPetitioner's sinus disease is n at ofth e severity th ;';It wou Id. p reel ud e. his work as a para med i '. This conclusion was bas~d upon their prior assertion that the only medication Mr. Smiley. ookat that time for his chronic sinus disease was Rhinocort and saline. The same conclusion w s reached as to his asthma with 4 the record reflects that Petitioner actually workectas a pararnedicJ6r the DNX. 7 7 of 12 [*FILED: 8] KINGS COUNTY CLERK 12/13/2021 03:33 PM NYSCEF DOC. NO. 82 INDEX NO. 501895/2021 RECEIVED NYSCEF: 12/13/2021 the Medical Board stating he wasn't on any medication for th t complaint. However, the record revealsthat Mr>Smileyhas had to administer as much as eight sinus rinses a day. Some include steroids or antibiotics. Additionally, he was prescribe Flovent, an albuterol inhaler and as a solution for use in a nebulizer. An EPl.:o pen has also been rescribed for a possible asthma emergency. At different times Mr. Smiley has also taken Flan se, asteroidal asthma inhaler, and Allegra for allergies. The record reveals that Petitioner suffered from no les than eight and sometimes even more, severe Sinus infections th rough out the year. The followi g diagnostic tests were performed With positive findings for chfonit sin us disease: tw CT scans, multiple nasal endoscopies, a table test for postural disequilibrium, VNG and EV studies: In fa ct, Petitioner's rh inosi h u_sitis symptoms became so sever€! hat Fun ct ion a I Eh dostopk Si h us Surgery (FESS) was performed on June 26, 2008. Infected sinus tissue was removed and the opening of his sinuses and the inside of his nose was enlarged i an attempt to facilitate better breathing and drainage of the mucous that was constantly gett hg backed up. Dr. Fred Lin reported as early as February 19, 2016 that 1Mr. Smiley continues to have significant issues related to his sinusitis and chronicinflammati n. Persistentthick green secretions as weHas facial pain and headaches continue and ha been debilitating the patient. In add itioh, he has worsening vertigo with an a bn o rm al VN G." r. Mich e I Sh oh et an ENT (Ear, Nose & Throat spec:ialist) evaluated Petitioner on October 30, 2 18 and reported that Smiley had nasal congestion, postnasal drainage and purulent nasal dr inage, sinus pressure. Smilels dizziness was accompanied by headaches and nausea and wors. ned asa result of any movement. Additionally, .Dr. Sh.oh et noted there has been progr ssion of Petitioner's 8 8 of 12 [*FILED: 9] KINGS COUNTY CLERK 12/13/2021 03:33 PM NYSCEF DOC. NO. 82 INDEX NO. 501895/2021 RECEIVED NYSCEF: 12/13/2021 headaches; disequilibrium and sinus symptoms despite using he gentamidn rinses, Petitioner had another FESS procedure on May 21, 2019. At thattime a acterial sinus infection was found. Dr.Un reported upon examination on Septembet18, 019thatPetitioner had "... brown and green nasal secretions, headaches, facial pain that has rio improved and is debilitating ... had an episode of imbalance several weeks ago that resulted a fall and multiple fract.ures," The second CT scan performed on Qctober 141 2019 indicated coalescence in the Jeft maxillary sinus, scattered polypoid mucosa! thickening in other sinuses, olyposis of left nasal passage with partial obstruction and left ethmold maxillary sinusitis. On October 29, 2019, Dr. Shohet examined Petitioner nd reportedthat Mr. Smiley's symptoms of chronic·rhinosinusitiswith recurring-acute exace bations and.vertigo had been progressing. Dr Shohet also detected residual friability {tissue t at tears, sloughs and bleeds more easily when touched) atthe caudal Septu rh. Also reporte was that thick mucous was draining from Mr: Smiley's left nostril. Dr. Shohetrecommende the cessation of any activity that could result iri exposure to smoke and other irritantswhic includes working as a paramedic; ANALYSIS· The law is weHsettled that The Medical Board's determ nation must be supported by su bsta nt.i a1·evidence,. which mu st be cred ibIe, rel eva n~ evi den c reasonably adequate to su pporf a. fact or con ch,Jsio n. Jennings v.. New York State Oft. of ental He a/th, 90 N; Y.2d 2t7; 239 (i.997); Credible evi de nee· is eviclenc:e from a reliable source which must reasonably tend to support the fact or conclusion for which the evi de nee is offer d. Bitchatchi v. Soard of 9 9 of 12 [*FILED: 10] KINGS COUNTY CLERK 12/13/2021 03:33 PM NYSCEF DOC. NO. 82 INDEX NO. 501895/2021 RECEIVED NYSCEF: 12/13/2021 Trustees of the N. Y; City Police Dept. Pension Fund, Art. II, 2 N. Y.3d268, 281 (2012). Further, for the Medical Board 1s recommendation cannot be conjecture, unsupported the support . . suspicion nor simply a conclusion itself. The Court of Appeals as defined credible, in this context, as "[A]n·articulatec:I, rational, and fact~based medical opinicm." Meyer Ii Board of Trustees of NYC FDNYi Art.1-8 Pension Fund, 90 N.Y;Zd 139j 47-148 (1997). The Medical Board's findihgs·are no more detailed tha they were when Hon, Lara Genovesi found the Medical Board's report to be condusory a best and unsupported by an articulated medical opinion in 2017. The Board repeatedly fou d that Petitioner has no functional impairment despite confirmed reports that he cann tbe exposed to smoke or other irritants, often has to lie down for hours at a time due to head ches and dizziness and is required to administer no less than three to four sinus rinses r day as w~ll as two cirthree inhalers and possibly the hebu li:Zer. Clearly, the standard as se forth above has not been met. The reports upon which Respondents' denials are base fail to set forth any facts supporting the conclusion that Petitioner does not have a func ionanmpairmeht. No less than four doctors confirmed Petitioner's debilitating severe and de ilitating sinusitis accompanied by headaches and dizziness. Moreover, Dr. Shohet, Dr. Lin:, Dr. rane and all treating doctors have opined that Mr. Smiley cannot perform the duties of a pa amedic. No reason is given why these opinions are ignored. Adetermination cif the Pension Fu d Medical Board ls not rational 1 ' .... where the medica I issues presented by the applicant are n adequately addressed by the Medical Board or where the medi.cal findings do not sustain th determination of the Medical Board.'; Moreover,·The.Pension Fund.Medical Board is o.bligate· to explain its.determination 10 10 of 12 [*FILED: 11] KINGS COUNTY CLERK 12/13/2021 03:33 PM NYSCEF DOC. NO. 82 INDEX NO. 501895/2021 RECEIVED NYSCEF: 12/13/2021 and provide some basis for judicial review. Matter of Quinn Ii Cassano, 29 Misc3d 1203(A) (Kings County, Sup Ct 2010). The law is well settled that the Medical Board cannot herry pick the evidence it chooses to rely on. Daly v Nigro, 65 Misc. 3d 1206{A) {Sup Ct, Kings County, 2019). However, in the case c1t bar they have uti Iized only pieces of Petitioner's m d ica I documentation and ignored the rest. The reports fail to address the objective posi ive findings contained in the di agnostic studies. They did not address any of the o pinions t at certified Petitioner as 100% disabled. These reports clearly do not meet th'e requirement s set forth by the court of Appeals th at the Med ica I Boa rd mu st exp la in why the eviden c it dis Counts is not va Ii d and why the evidence it relies upon is more persuasive. Meyer v Board if Trustees, supra at144~145. The Board also concludes that Petitioner's dizziness is used by peripheral vestibular lesion and not his severe debilitating sinusitis. The Medical Bo rd fc1iled to set forth facts upon which this opinion was based and it is therefore, inadequate. I • at 152. Their finding is clearly condusory and amounts to nothing more than mere conjectur . Matter of Bitchatchiv Bd. of Trustees, supra at 268. The Board ofTrustees erred by accepti g, without any independent review or explanation, the Medical Boarc;l's determination rega ding Petitioner's disability. No explanation was provided as to why the incontrovertible re orts submitted by petitioner we re ignored. No credible conflicting evidence was offered in s p po rt of the Med ica I Boa rd' si re comm e nq ation of den iaI. Daly v Nigro, sµpra. The law is clear that a Medical Board's determ nation adopted by the Board of Trustees canno.t be overtu.rned unless it .is arbitrary and caprid us. Boyer v NYCERS; 41 Mis.c$d 987 {S. Ct;, NY CQunty, 2013). 11 ... the Medical Board mu.st do 11 11 of 12 ore than simply identify reports [*FILED: 12] KINGS COUNTY CLERK 12/13/2021 03:33 PM NYSCEF DOC. NO. 82 INDEX NO. 501895/2021 RECEIVED NYSCEF: 12/13/2021 and tests and state its conclusion; it must address the -evid nee before it and explain why the evidence it discounts is not valid, and why the evidence it relie upon is more persuasive; explaining why the opinions and diagnoses that are not relied upon are ncorrect." Matter of Quinn, supra at 1203{A). The Board's determination, if not based Upon a edical certainty or supported by the medical findings, will be deemed irrational. Matter ofS ck Ii Board of Trustees, 38 AD3d 562, 563 {2d Dept, 2007). Moreover,. the Board's recomm ndations ignored the sul:>mitted medical records and are, therefore, deemed arbitrary. Boren tein v NYCERS, 88 NY2d 756,76~ 761 (1996). Accordingly, the Petition is granted in its entirety and e denial by Respondents dated November30, 2020 of Mr. Smiley's application for physical di ability retirement benefits is hereby an nu 11 ed. Th is ls the DeciSi on and Ord er of the Court. ENTER, LO EN BAILY-SCHIFFMAN JSC REN BAILY-SCHIFFMAN 12 ·---·•-·" '"·-··--·--- 12 of 12

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