Opinion
101222/2017
09-11-2018
In the Matter of the Application of David CORTES, Petitioner, For a Judgment under Article 78 of The Civil Practice Law and Rules, v. 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.
Petitioner was represented by Chet Lukaszewski, P.C., 3000 Marcus Avenue, Suite 1E5, Lake Success, NY 11042 Respondent was represented by Kerri A. Devine, Sheryl Neufeld, and Ave Maria Brennan, New York City Law Department (Zachary Carter, Corporation Counsel), 100 Church Street, New York, NY 10007
Petitioner was represented by Chet Lukaszewski, P.C., 3000 Marcus Avenue, Suite 1E5, Lake Success, NY 11042
Respondent was represented by Kerri A. Devine, Sheryl Neufeld, and Ave Maria Brennan, New York City Law Department (Zachary Carter, Corporation Counsel), 100 Church Street, New York, NY 10007
Carmen Victoria St. George, J.In this Article 78 proceeding, petitioner David Cortes appeals the final determination of respondent The Board of Trustees of the Police Pension Fund, Article II (the Board), 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 his ODR pension went into effect. Alternatively, petitioner seeks an order remanding the matter to respondents for further consideration. The respondents in their verified answer seek the denial and dismissal of the Article 78 petition. For the reasons below, the Court grants the petition to the extent of remanding the matter to the Board for further review.
Factual Background
Petitioner became a police officer for the New York City Police Department (NYPD) on July 1, 2004, when he was 31. On November 19, 2008, while petitioner was driving a radio motor patrol car (RMP) at around 30 miles per hour, another car ran a stop light and collided with the RMP on the driver's side. The police report and the police accident report state that petitioner sustained injuries to his neck. Petitioner went to New York Hospital in Queens for immediate treatment. The emergency department summary indicates that petitioner was placed in an immobilization backboard and a cervical collar. Petitioner alleges he additionally suffered injuries to multiple body parts and whiplash. Further, petitioner alleges his "neck pain and issues related to spinal problems" (Pet., at ¶ 7) continued after the accident. Over the years, he states, he slowly developed lower right leg numbness, right arm numbness, facial numbness on the right side, severe neck pain, and headaches (id. ). Petitioner resumed work at limited duty capacity on November 22, 2008 and he resumed full duty on December 3, 2008. He worked for the next two years, unabated, and without seeking further medical treatment. In September 2009, he was promoted to detective.
On November 16, 2010, petitioner sustained a line-of-duty (LOD) injury as the result of his altercation with a perpetrator. The LOD control log states the perpetrator punched petitioner in the face, resulting in injuries to petitioner's left leg, right hand, lower back, and hip. The emergency room notes indicate that petitioner had a two-year history of lower back pain, which started with the November 2008 car accident. Although this incident aggravated the chronic back pain, the notes state, petitioner's neurological condition was not worsened by the 2010 injury. Petitioner took three weeks of sick days, and he returned to work on December 7, 2010.
Petitioner remained on limited capacity duty for around seven weeks. During this period, petitioner sought approval through the NYPD for an LOD-related MRI for his cervical and lumbar spine. According to petitioner, Dr. Sullivan, an NYPD doctor, denied his application, but subsequently a doctor who was substituting for Dr. Sullivan approved him for a lumbar MRI only. The January 11, 2011 MRI, which was provided to Dr. Sullivan, revealed disc herniations at L5/SI and L4/5 as well as a disc bulge at L1/2. Petitioner returned to full duty on January 25, 2011 until February 2014.
Petitioner's memorandum of law states he was hospitalized due to his pain for four days in May of 2011, but he submits no evidence supporting this contention and it does not appear he submitted such evidence to the Medical Board or the Board. Similarly, petitioner's statements relating to his epidural injections and physical therapy is not substantiated. Respondents indicate that petitioner was on limited capacity duty from May 25, 2012 through June 18, 2012 and from June 29, 2012 through July 13, 2012, but the reasons for this are not stated in either parties' papers and this also does not appear to have been before the Medical Board and the Board.
According to petitioner, his problems did not abate but in fact worsened after his return to full duty. Around three years after his lumbar MRI, he alleges, his "condition became so severe that he could no longer perform his job functions" (id. at ¶ 13). Dr. James E. Henry, a police department surgeon, approved petitioner's request for several spinal tests. He underwent lumbar and cervical MRIs in March 2014. Among other problems, he states, the tests revealed multilevel cervical degenerative disc disease, most advanced at C4/5, and bilateral C5/6 radiculopathy in the lumbar and cervical regions. Petitioner states that Dr. Henry denied his request for emergency neck surgery because the doctor had not intended to authorize the cervical spine MRI. Petitioner underwent the surgery, relying on his personal health insurance. Petitioner states that after his cervical electromyography (EMG), he underwent an attempted fusion surgery on April 24, a successful fusion surgery on April 25, and a spinal cord surgery — to treat a resulting infection — on May 11, 2014.
On October 20, 2014, the NYPD submitted petitioner's application for a disability retirement pension. Pursuant to the application, respondents considered petitioner for both ODR and ADR. Petitioner's present attorney, who also represented him at the time, submitted the office records of Drs. Cecily Anto, Jeff Silber, and Shuriz Hishmeh; the operative reports from St. Joseph Hospital relating to his April and May 2014 surgeries; petitioner's January 2011 lumbar spine MRI report; his 2014 lumbar, cervical, and thoracic spine MRI reports; his 2014 brain MRI report; and a follow-up MRI of his cervical spine from August 6, 2014. Drs. Anto and Hishmeh's reports state, in recounting petitioner's medical history, that petitioner's neck and back problems started after his November 19, 2008 car accident. Dr. Silber, who treated petitioner in September 5, 2014, indicated that petitioner's symptoms were stable, and he was not in need of further surgery, but that petitioner should follow up at the six-month mark. Petitioner also referred respondents to the case of Salvia v. Kelly (Sup Ct, NY County, Oct. 27, 2014, Schlesinger, J., Index No. 101197/2013), a copy of which petitioner annexes here as Exhibit Y, and which he states is analogous. Subsequently, petitioner submitted his 2014 hospital records and a letter as well as treatment notes from Dr. John Ricciardelli, his pain management doctor, who had treated petitioner since October 27, 2014. The letter stated that petitioner's LOD injuries were the cause of his spinal stenosis, herniated discs, and cervical myelopathy and of his resulting disability.
After petitioner's original application, the First Department affirmed the trial court's order (Salvia v. Bratton , 159 A.D.3d 583, 70 N.Y.S.3d 379 [1st Dept.], lv denied , 31 N.Y.3d 913, 2018 WL 3152805 [2018] ).
The NYPD directed its Medical Board to examine petitioner and determine 1) whether he was disabled, and 2) whether his disability was service-related. The Medical Board examined petitioner on February 10, 2015 and issued its report that day (The report). The report recounted all the material the Medical Board considered, including documents which related to petitioner's 2008 and 2010 injuries and follow-up treatments and to his 2014 diagnosis and surgeries. The report indicated that during his interview with the Medical Board, petitioner stated he was disabled due to his neck and back problems. The report stated that, according to petitioner, several months after the 2008 accident he began to feel numbness in his right hand and his right triceps. Nonetheless, the report noted, petitioner did not seek any medical treatment for these purported problems. According to petitioner, his back gave out during his 2010 altercation with a perpetrator. It indicated that allegedly, at the time, petitioner told the treating physician that his back pain was worse than his neck pain, and thus a back MRI was performed. According to the report, petitioner stated that the surgery initially improved his medical condition, including his numbness, but that the numbness had returned to some parts of his body since then. The Medical Board also conducted a physical examination. The report noted that petitioner's gait was nonantalgic — that is, he did not alter his gait to avoid pain. Petitioner could not stand on his toes or walk on his heels, had trouble lifting his toes while he leaned on the exam table for support, and he experienced pain in certain areas.
The report concluded that petitioner was disabled from performing his full duties and thus was eligible for disability retirement. It stated, however, that it was "unable to assess causation of the detective's disability to either the line of duty injury of November 19, 2008 or November 26, 2010" (Report, at p 9, ¶ 36). Although the 2008 line of duty injury report indicated petitioner experienced pain in his neck and lower back, the report stated, the emergency room records do not document this complaint and the hospital did not decide to undertake further imaging studies. In addition, the report stated,
None of the subsequent complaints that [petitioner] reported during today's interview was supported by available documentation. There is no note of cervical spine pain or complaint documented on the line of duty injury report of 2010 or the emergency room visit. There are no records referring to complaints to the neck or right upper extremities noted prior to early 2014.
(id. ). The Medical Board diagnosed his condition as failed cervical fusion and recommended that petitioner be approved for ordinary rather than accidental disability retirement. The Medical Board sent its report to the Board of Trustees (the Board).
In a June 22, 2015 letter, petitioner's attorney requested that respondent the Board upgrade his disability from ODR to ADR. Among other things, he relied on Tobin v. Steisel, 64 N.Y.2d 254, 259, 485 N.Y.S.2d 730, 475 N.E.2d 101 [1985] for the proposition that "an accident which produces injury by precipitating the development of a latent condition or by aggravating a preexisting condition is a cause of that injury." Here, he stated, the Medical Board did not consider whether petitioner's LOD injuries exacerbated a preexisting degenerative disorder, and its determination that the degenerative disorder and failed fusion surgery were the sole sources of his disability was irrational.
The Board considered the matter on July 14, 2015. The transcript of the executive session (Transcript I) shows that the Board had reviewed petitioner's upgrade request but was "not comfortable upgrading at that time" (Transcript I, p 27). Accordingly, the Board granted petitioner ODR and tabled its consideration of his upgrade application. It subsequently considered the application for the upgrade on August 12, 2015, on which date the Board also responded to petitioner's attorney's request for a reason for the Board's discomfort with the application (Transcript II). The Board noted that on April 15, 2014, Dr. Henry, the police department surgeon, found a "questionable correlation to line-of-duty injury of 2008" (Transcript II, p 65). The Board further noted that after he again treated petitioner on April 17, 2014, Dr. Henry maintained that "there is no record of cervical treatment through any line-of-duty injury in the record" and therefore "it is difficult to correlate it to the line-of-duty injury in 2008" (id. , p 66). The Board stated that it "guess[ed]" petitioner's post-surgical infection in 2014, which necessitated additional surgery, was "another factor in this case" (id. ). It noted that Dr. Hishmeh did find some correlation between petitioner's 2008 injury and his disability, and that petitioner's neck pain "could certainly have been from his motor vehicle accident in 2008 or even from him being assaulted in 2010" (id. ). The Board found it critical that petitioner received no treatment for cervical spine problems after either of these injuries. Most significantly, it stated, the Medical Board and the Board of Trustees were unable to determine causation. Petitioner bore the burden of establishing causation, the Board stated, and he failed to satisfy his burden. Accordingly, the Board could not approve his request for ADR.
Petitioner's attorney challenged this determination in a letter dated September 1, 2015. The letter noted that after the 2008 car accident, petitioner was taken to the hospital in a neck brace, and his LOD paperwork stated petitioner had sustained an injury to his upper back. The letter stated that this is sufficient to show that petitioner's neck was injured in 2008. In addition, the letter stated, in light of the facts that petitioner was only forty-one-years old, an age at which problems as severe as those of petitioner are rare, and that he had no neck problems prior to the 2008 car accident, causation was apparent. He cited the case of Rodriguez v. Board of Trustees of New York City Fire Dept, Article I-B Pension Fund, 3 A.D.3d 501, 501-02, 770 N.Y.S.2d 132 [2nd Dept. 2004] in support of this position. The Board treated this as an upgrade application and considered it on September 16, 2015 (Transcript III). It stated that its reasoning "was fully explained last time on the record, so we are denying it" without the need for further discussion (Transcript III, at p 52).
Petitioner challenged this determined in a prior Article 78 proceeding (Cortes v. Bratton , Sup Ct, NY County, July 25, 2016, Hagler, J., Index No. 102283/2015 [decision on the record] ). At oral argument before Justice Hagler, petitioner argued, inter alia, that the Board did not consider whether petitioner's LOD injuries exacerbated or aggravated his medical condition. The court agreed with petitioner that "if [the Board] say[s] it was degenerative, [it is] saying something existed pre-accident or pre-disability application" (id. , at p 8, ll 7-9), and "if the aggravation and exacerbation was not considered at all, then that [is] arbitrary and capricious" (id. , p 8, ll 23-25). Justice Hagler concluded that he "ha[d] to remand under Tobin to the board who then should transfer it to the medical board to consider exacerbation and/or aggravation of a prior injury. Here I know the record is very sparse with regard to that, but if there is a degenerative condition, how could there not be a consideration of that issue. So, I'm remanding in a conservative manner" (id. , pp 13-14, ll 21-26, 2-3).
Pursuant to this decision, on October 12, 2016, the Board remanded petitioner's application to the Medical Board. The Medical Board reconsidered the application on December 6, 2016 (the 2016 Report). Petitioner was not interviewed or re-evaluated at this time. The 2016 Report noted that its role was to consider whether the 2008 and 2010 LOD injuries exacerbated petitioner's preexisting condition. Upon reconsideration, the Medical Board adhered to its original conclusion. It indicated that there was no evidence showing that the 2008 injury caused a derangement, or disturbance, of petitioner's normal functions, which in turn related to petitioner's 2014 condition. It stated that there was no earlier radiological data for the cervical spine on which to base a contrary determination. Petitioner's counsel's February 28, 2017 letter in response argued that it was irrational to conclude that petitioner's disc herniations, degenerative disc disease, stenosis, and cervical myelopathy progressed to the point of disabling a 41-year-old police officer purely by coincidence, and with "no connection to his violent LOD neck injury, after which he began to experience neck pain and issues that progressively worsened over the years, but which he worked through for as long as he possibly could" ( (Lukaszewki letter dated Feb. 28, 2017, at p 2, ¶ 3). The letter further noted that petitioner had no discernable neck problems before his "violent traumatic" LOD injury (id. ).
On April 12, 2017, the Board considered the Medical Board's recommendation that petitioner receive ODR rather than ADR (Transcript IV). Like the Medical Board, the Board stressed that it saw no evidence connecting petitioner's 2014 disability to his earlier LOD injuries. It found that the six-year gap between the 2008 incident and the 2014 MRI showing petitioner's disabling condition was critical. Nevertheless, the Board tabled the matter for further review. At its final review, on June 14, 2017, the Board voted 6-6 on petitioner's application. This resulted in a denial of application for ADR (see Meyer v. Board of Trustees of the New York City Fire Dept., Article 1-B Pension Fund by Safir , 90 N.Y.2d 139, 144-45, 659 N.Y.S.2d 215, 681 N.E.2d 382 [1997] ). On the record, the Board noted that the Medical Board reviewed the application several times without deviating from its conclusion, and there was no compelling reason for the Board to reject the Medical Board's repeated conclusion.
Following this final determination, petitioner initiated this Article 78 proceeding. In the proceeding at hand, petitioner argues that the June 2017 decision was irrational. He states that the Board ignored the mandate in Tobin because it did not consider the possibility of exacerbation (see Tobin , 64 N.Y.2d at 260-61, 485 N.Y.S.2d 730, 475 N.E.2d 101 ). In addition, petitioner states that his decision to return to work, and to continue to work, until the impact of his LOD injuries on his preexisting condition became disabling, should not weigh against him. Petitioner contends that the Board arbitrarily ignored the logical explanations contained in his attorney's letters and his own statements about the impact of his LOD injuries in 2008 and 2010. Moreover, he states that the Board relied on a conclusory finding by the Medical Board and engaged in no independent analysis, in derogation of its duties (see Matter of Claudio v. Kelly , 84 A.D.3d 667, 668, 924 N.Y.S.2d 60 [1st Dept. 2011] ). Petitioner states that, in reaching its conclusion, the Board impermissibly relied on the gap in time between his LOD injuries and his disability and petitioner's lack of medical treatment during the intervening period.In opposition, respondents state that the Medical Board reviewed extensive evidence in issuing both its February 10, 2015 and its December 6, 2016 recommendations, and that those recommendations were thoughtful and discussed all the pertinent materials. After his 2008 car accident, respondents stress, petitioner was not treated for a neck injury at the hospital or thereafter. Similarly, respondents note, there is no documentation of neck pain or injury in either the police report or the emergency room records of his 2010 injury. Respondents cite petitioner's "relatively swift return to full duty" in both instances as a relevant factor (Respondents Mem. of Law, at p 10). Furthermore, respondents point out that the gaps between these incidents and petitioner's disabling condition were over five years and over three years, respectively, and they claim that a gap of this length is a justifiable basis for the Board's conclusion. They argue that, unlike the cases upon which petitioner relies, the Board here relied on the lack of treatment during the gap period in addition to the lapse of time itself. They state that because there were conflicting medical opinions as to causation, the Board was entitled to rely on its own expert (citing Tobin , 64 N.Y.2d at 258-59, 485 N.Y.S.2d 730, 475 N.E.2d 101 ). Respondents argue that the Board's rejection of petitioner's theory of causation did not require it to offer an alternative theory.
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 ODR benefits. ADR benefits are available only 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; Matter of Picciurro v. Board of Trustees of the New York City Police Pension Fund , 46 A.D.3d 346, 348, 847 N.Y.S.2d 553 [1st Dept. 2007] ). An officer's application involves two steps. First, the Medical Board examines and interviews the applicant, reviews the evidence the applicant has submitted, and sends a recommendation to the Board of Trustees. Second, the Board of Trustees considers the recommendation and reaches its own decision ( Matter of Stavropoulos v. Bratton , 148 A.D.3d 449, 450, 50 N.Y.S.3d 2 [1st Dept. 2017] ). "The Board of Trustees is always tasked with making its own determination as to causation" ( Matter of Pastalove v. Kelly , 120 A.D.3d 419, 419-20, 991 N.Y.S.2d 39 [1st Dept. 2014], lv dismissed , 24 N.Y.3d 1217, 28 N.E.3d 41 [2015] ). As such, it considers the Medical Board's findings but makes an independent determination whether to adopt or reject them (see Claudio , 84 A.D.3d at 668, 924 N.Y.S.2d 60 ).
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.
In an Article 78 proceeding challenging the disability determination, the Board of Trustee's finding must be sustained "unless it lacks rational basis, or is arbitrary or capricious" ( In re Borenstein v. NYC Employees.Ret. Sys ., 88 N.Y.2d 756, 760, 650 N.Y.S.2d 614, 673 N.E.2d 899 [1996] ; accord Matter of Hernandez v. New York City Employees' Ret. Sys. , 148 A.D.3d 706, 707, 49 N.Y.S.3d 463 [2nd Dept. 2017] ). As long as the Board relied on "some credible evidence," courts must uphold the decision ( Pastalove , 120 A.D.3d at 421, 991 N.Y.S.2d 39 ). Where, as here, the denial stems from a tie vote, the same standard applies, and the court cannot reverse the decision unless the petitioner establishes as a matter of law that the disability at issue was "the natural and proximate result of a service-related accident" ( Stavropoulos , 148 A.D.3d at 452, 50 N.Y.S.3d 2 [citation and internal quotation marks omitted] ). Courts annul determinations and remand them for further review, on the other hand, when the Board does not address petitioner's medical issues or when the medical evidence is insufficient to sustain the determination ( Kiess v. Kelly , 75 A.D.3d 416, 417, 905 N.Y.S.2d 67 [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 , 64 N.Y.2d at 259, 485 N.Y.S.2d 730, 475 N.E.2d 101 ).
The Court has considered the record and the parties' arguments carefully. After this review, the Court grants the petition to the extent of remanding the matter to the Board so that the Board may send the matter to the Medical Board for consideration in light of the First Department's decision in Salvia and Justice Arlene Bluth's decision in Sigmon v. O'Neill (2018 NYLJ LEXIS 1220 [Sup Ct NY County 2018] ). Salvia found that the Board could not find that a LOD accident did not exacerbate the petitioner's degenerative disc condition based solely on a two-year gap in treatment. It further noted that the Board as well as the Medical Board did not suggest "an alternative trigger" ( Salvia , 159 A.D.3d at 584, 70 N.Y.S.3d 379 ). In Sigmon , Justice Bluth, relying on Salvia , annulled the Board's determination and awarded ADR to the petitioner. The Court rejected the Medical Board's conclusion that "the medical documentation is absent to support any continuation of symptoms between 2011 and [petitioner's medical review] with low back symptomatology in 2013" and that "it [was] unlikely that there would be no medical follow-up and medical treatments during the intervening period" (Sigmon , 2018 NYLJ Lexis 1220, at *3 [citation and internal quotation marks omitted] ). The court also found it notable that the Medical Board did not consider the petitioner's use of over-the-counter medications during the gap period (id. , at *4).
Respondents' discussion of a decision in which Justice Bluth reached a contrary result prior to Salvia is not persuasive precisely because she issued the decision prior to Salvia , on which Sigmon relies.
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Here, as in Salvia and Sigmon , the Medical Board's findings were conclusory. The Medical Board appeared to rely solely on the gap in medical treatment and petitioner's purported failure to establish causation. There is no genuine consideration of petitioner's statements that his condition worsened over the years or of the medical evaluation supporting petitioner's position. The Board, in adopting the rationale of the Medical Board, similarly relied on the gap in treatment. As such, neither the Medical Board nor the Board followed the spirit of the directive in Justice Hagler's 2016 order. Moreover, the Court rejects respondents' argument that the instant case is distinguishable from Salvia and Sigmon because in addition to the gap in time there was a gap in medical treatment. In both cases, the courts ruled that it was irrational to rely on a gap in medical treatment during the gap in time. Thus, there is no distinction.
The parties have submitted detailed memoranda replete with citations to and discussions of numerous pertinent cases. The Court's independent research has turned up many more. Although it does not discuss all these cases or all the parties' arguments, the Court has considered the issues thoroughly in reaching this decision. Accordingly, it is
ORDERED and ADJUDGED that the petition is granted to the extent of annulling the Board's June 14, 2017 determination denying petitioner's application for ADR; and it is further
ORDERED and ADJUDGED that the petition is granted to the extent of remanding this matter to respondents for referral to the Medical Board for further proceedings consistent with this decision; and it is further
ORDERED that the remainder of the petition is otherwise denied.
This constitutes the decision and order of this Court.