Opinion
516757/2017
01-30-2018
In the Matter of the Application of Edward CHIAROTTI, Petitioner, v. The NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, The Board of Trustees of the New York City Employees' Retirement System, The Medical Board of the New York City Employee's Retirement System, and the City of New York, Respondents.
Seelig Law Offices, 299 Broadway, Suite 1600, NY, NY 10007, Plaintiff's counsel Zachary W. Carter, Esq., Corporation Counsel of the City of New York, 100 Church Street, NY, NY 10007, Defendant's counsel
Seelig Law Offices, 299 Broadway, Suite 1600, NY, NY 10007, Plaintiff's counsel
Zachary W. Carter, Esq., Corporation Counsel of the City of New York, 100 Church Street, NY, NY 10007, Defendant's counsel
Reginald A. Boddie, J.
Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of this motion:
Papers Numbered
Notice of Petition 1
Petitioner's Mem of Law 2
Verified Answer 3
Petitioner's Reply Mem of Law 4
Upon the foregoing cited papers, and after oral argument, the decision and order on petitioner's petition seeking relief pursuant to CPLR Article 78 is decided as follows:
In this Article 78 proceeding, petitioner seeks a judgment annulling the determination of respondents in denying petitioner a line of duty disability retirement, pursuant to New York Retirement and Social Security Law § 605–b, and directing respondents to retire petitioner with a three-quarter disability retirement allowance retroactively, and other relief.
Petitioner, Edward Chiarotti, was appointed to the uniformed force of the New York City Sanitation Department (DOS) on July 28, 1997. His regular duties involved working on a sanitation truck collecting trash. His performance was satisfactory at all times. On January 20, 2015, he was alleged to be injured when his right foot slipped on a slippery substance on the ground, which caused him to slip and hit his shoulder on the hopper of the sanitation truck. On the day of the injury, he was taken to the hospital where he complained of right shoulder and wrist pain. He was diagnosed with right shoulder and wrist pain and given a wrap for his wrist and a sling for his shoulder.
Immediately thereafter, he began treating with Dr. Jeffrey Guttman. Petitioner filed two applications for a disability retirement. The first application, dated January 7, 2016, stated petitioner could no longer perform the full duties of a sanitation worker due to the injury of his right shoulder, which included pain, weakness and limited range of motion. On May 20, 2016, upon review of petitioner's application, medical records and examination of petitioner, the Medical Board of NYCERS (the Medical Board) concluded petitioner was not disabled and the injuries were not an accident. The Medical Board recommended to the Board of Trustees of NYCERS (the Board of Trustees) that his application be denied. On or about October 14, 2016, the Board of Trustees notified petitioner that his application was denied.
On or about November 2, 2016, petitioner filed a second application in which he alleged he is disabled "because [his] rotator cuff rupture and multiple surgeries caused by [his] LODI [line of duty injury] accident," and submitted additional reports. In support of this application, Dr. Guttman wrote:
In summary, this patient sustained a significant work related injury to his right shoulder on 1/20/15 in which he sustained a tear of the rotator cuff. The rotator cuff tear was the direct result of his work related injury (slip on wet ground while performing garbage collection). He subsequently underwent two shoulder surgeries, the first on 2/25/15 to repair his rotator cuff tear, and the second on 9/2/15 to remove some residual bone from his distal clavicle. He has completed PT, reached maximal improvement from his treatment, and returned to work light duty, but he is not suited to return to work full duty due to permanent loss of motion and strength in the shoulder. His full duty position as a sanitation worker requires significant repetitive heavy lifting, carrying, pulling/dragging which he is permanently unable to perform.
Petitioner also had an additional MRI performed on December 23, 2016, which revealed a status post rotator cuff repair with mild to moderate partial thickness articular surface tearing of the infraspinatus tendon, mild supraspinatis tendinosis, and post surgical changes of the acromioclavicular joint.
The Medical Board determined that petitioner was disabled from performing the duties of a sanitation worker due to his injuries but his disability was not the result of a sudden and unexpected "accident." On January 31, 2017, the Medical Board recommended denial of the application to the Board of Trustees. The Board of Trustees accepted the recommendation and notified petitioner accordingly on May 12, 2017. The instant Article 78 proceeding ensued. Respondent opposes the petition.
The Medical Board determines whether a member applying for accidental disability retirement benefits is disabled (see Administrative Code of the City of New York § 13–167 [b]; Matter of Vargas v. New York City Employees' Retirement Sys. , 95 AD3d 1345, 1346 [2nd Dept. 2012]. The Board of Trustees is bound by the Medical Boards's determination as to whether an applicant is disabled ( Matter of Vargas , 95 AD3d at 1345 citing Matter of Meyer v. Board of Trustees of New York City Fire Dept., Art.1–B Pension Fund , 90 NY2d 139, 144 [1997] ; Matter of Borenstein v. New York City Employees' Retirement Sys. , 88 NY2d 756, 760 [1996] ; Matter of Zamelsky v. New York City Employees' Retirement System , 5 AD3d 844, 845 [2d Dept. 2008] ). The Medical Board's determination is conclusive if it is supported by substantial evidence, which in disability cases has been construed as some credible evidence, and is not irrational ( Matter of Vargas , 95 AD3d at 1345 ; Matter of Borenstein , 88 NY2d at 760 ). Consequently, the court's function in an Article 78 proceeding is to determine if the determination of the administrative agency is supported by credible evidence, or is arbitrary and capricious ( Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County , 34 NY2d 222, 230 [1974] ).
On January 19, 2017, the Medical Board, after reviewing the November 2, 2016 application and medical records and examining the petitioner, concluded that he is disabled from the duties of sanitation work due to the injuries suffered on January 20, 2015, but that the injuries were not accidental. The Board of Trustees denied benefits on the ground that the event was not an accident. Therefore, the only issue for consideration here is whether the injuries were accidental.
The Court of Appeals previously determined in Matter of Lichtenstein v. Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II , 57 NY2d 1010, 1011–1012 (1982) that:
In order to obtain accidental disability retirement, petitioner must establish that he suffered physical or mental incapacitation "as a natural and proximate result of an accidental injury received in city service" (Administrative Code of the City of New York, § B18–43.0). The legislative history of the statute indicates not every line-of-duty injury will support an award of accidental disability retirement. The express requirement that the employee establish that the line-of-duty injury be incurred as a result of the accident was added in 1940 (see Uniformed Firefighters Assn., Local 94, IAFF, AFL–CIO v. Beekman , 52 NY2d 463 ). Prior to that time, line of duty retirement benefits were payable solely upon a determination that the disability was retirement related (L 1920, ch 427, § 1 Administrative Code, §§ B18–4.0, B19–4.0).
Although the term "accident" is not specifically defined by the statute, we adopt the commonsense definition of a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" ( Johnson Corp. v. Indemnity Ins. Co. of North Amer. , 6 AD2d 97, 100, affd 7 NY2d 222 ). (According to this definition, an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury within the meaning of section B18–43) [citations omitted].
Here, the Medical Board determined the incident that caused petitioner's injuries was not an accident. Petitioner disagrees and seeks judicial review of this determination. It is well settled that on review pursuant to Article 78, courts may set aside an administrative determination where it is evident that the administrative body applied an erroneous standard or the determination is unsupported by substantial evidence ( Matter of Pell , 34 NY2d at 230 [citations omitted] ). However, the court has no authority to upset the Medical Board on a question of fact or to review the facts as to weight of evidence (Id. [citations omitted] ).
The record here indicates petitioner provided differing versions of the cause of his injuries. In the DOS Line of Duty Injury Report, petitioner stated, "I was lifting a heavy bag to throw in truck my right foot slipped on some liquid on ground causing me to make contact with the hopper and pull my shoulder and twist my wrist." In the DOS Line of Duty Injury/ Illness Medical Report, physician assistant Monica Rogan recorded that petitioner indicated, "while lifting garbage bag with both hands and throwing bag he felt a pop and pain in right wrist." In the DOS Medical Clinic Report, petitioner is recorded as stating: "While lifting bag into truck foot slipped on bag caught up on hopper while I was throwing it in. Felt my shoulder pop and twisted my wrist." A Department of Labor Report indicated, "S/W slipped on ice causing fall." An undated DOS Unusual Occurrence Report stated, "S/W E. Charotti was injured by slipping from liquid that was on the sidewalk caused by the garbage bags and hurt his right shoulder and right side wrist."
Finally, when petitioner was questioned by Board of Trustee's Chairperson John Adler about the statement his foot slipped on a bag and not a slippery substance, petitioner responded in part "my mistake, it's two and a half years ago" (Exhibit EE at 47:10–47:20). Chairperson Adler then responded, "The circumstances do not rise to the level of an accident, as he was engaging in his regular duties. And we don't believe that the circumstances are sudden and unforeseen to amount to an accident in this context" (Exhibit EE at 51:12–51:17).
It cannot be disputed that the different versions of the events created questions of fact and credibility for the Medical Board to resolve, and it is not within the purview of the court to upset the administrative agency's determinations on a question of fact or to review the facts as to weight of evidence ( Matter of Pell , 34 NY2d at 230 [citations omitted] ). Accordingly, it cannot be said that the decision of the Medical Board determining the incident which caused petitioner's injuries was not an accident lacked a rational basis since it was based on its factual determinations as to the cause of the accident.
Furthermore, a slip on a bag or slippery substance found emanating from a garbage bag, whether on the sidewalk or in the street near the truck, after the lifting of garbage, would not constitute an unexpected or out of the ordinary event in this context, but rather a normal risk associated with garbage collection ( Matter of Cravotta v. New York City Employees' Retirement Sys. , 89 AD3d 842, 843 [2d Dept. 2011] [upholding the decision of the Board of Trustees in denying early retirement benefits to a sanitation worker when he injured his knee due to a slippery substance that formed on his shoe at a dump site and slipped on the step of his truck because the injury was "not so out-of-the-ordinary or unexpected as to constitute an accidental injury as a matter of law"]; Matter of Gallello v. McCall , 247 AD2d 693 [3d Dept. 1998] [a sanitation worker's slip and fall while dumping a barrel of garbage was not an accident when the worker was unable to establish his injuries were caused by anything other than ordinary misstep] ).
Here, even considering the different versions of how petitioner fell and was injured, he failed to establish that his injuries were caused by anything out of the ordinary for a sanitation worker. It would not be unusual or unanticipated that a sanitation person would occasionally slip on a slippery substance emanating from the trash being disposed into a garbage truck. Therefore, the court finds the decision of the Medical Board was supported by substantial evidence and a rational basis and the Board of Trustees properly adopted the recommendation of the Medical Board.
For the reasons indicated herein, the court finds the determination of the Medical Board was rational and supported by substantial and credible evidence and the Board of Trustees acted properly in adopting the determination. Accordingly, the petition is denied and the case is dismissed.