Opinion
No. 2022-51028 Index No. 525069/2021
09-06-2022
In the Matter of the Application of Donna Cariello, 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 Employees' Retirement System, and THE CITY OF NEW YORK, Respondents.
Attorney for Petitioner Donna Cariello: Philip H Seelig, Esq. Attorneys for Defendants 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 Employees' Retirement System, & The City of New York Kerri Ann Devine
Unpublished Opinion
MOTION DECISION
Attorney for Petitioner Donna Cariello: Philip H Seelig, Esq.
Attorneys for Defendants 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 Employees' Retirement System, & The City of New York Kerri Ann Devine
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of petition filed on October 1, 2021, under motion sequence one, petitioner Donna Cariello (hereinafter petitioner) seeking the following relief:
1. A judgment pursuant to CPLR Article 78:
A. Reviewing and annulling the action of respondents the New York City Employees' Retirement System (hereinafter NYCERS), the Board of Trustees of The New York City Employees' Retirement System (hereinafter the Board of Trustees), the Medical Board of the New York City Employees Retirement System (hereinafter the Medical Board), and the City of New York (hereinafter collectively as the NYCERS respondents) in denying petitioner a performance of duty disability retirement pursuant to New York Retirement and Social Security Law § 507-c, and declaring said action to be arbitrary, capricious, unreasonable, and unlawful; and
B. Directing and ordering respondents to retire petitioner with a three-quarter disability retirement; or in the alternative
C. Directing and ordering respondents, by way of remand, to review petitioner's application for a performance of duty disability retirement benefit.
2. If the NYCERS respondents fail to act in accordance with CPLR 7804 (e) in answering the petition, for an order pursuant thereto, directing the NYCERS respondents to serve and file upon the date hereof:
A. All reports, recommendations, certificates, and all other documents submitted to NYCERS, in connection with the retirement of the petitioner;
B. Copies of all records, reports or notes relating to petitioner which are on file with NYCERS.
The NYCERS respondents oppose the petitioner's application.
-Notice of Petition
-Petition
-Exhibits A to H
-Verified Answer
-Exhibit A to T
-Respondents' Memorandum of Law in Opposition
-Memorandum of Law in Reply
BACKGROUND
On October 1, 2021, petitioner Cariello (hereinafter Cariello or petitioner) commenced the instant CPLR Article 78 proceeding against respondents 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 Employees Retirement System, and the City of New York (hereinafter the NYCERS respondents), by electronically filing a notice of petition, verified petition, eight annexed exhibits labeled A through H, (hereinafter the commencement papers) and a request for judicial intervention with the Kings County Clerk's office (hereinafter KCCO).
On January 18, 2022, the NYCERS respondents filed their verified answer with twenty annexed exhibits labeled A through T and a memorandum of law. Their verified answer contains sixty-seven allegations of fact including six affirmative defenses.
Cariello's verified petition alleges the following salient facts. Cariello was employed as a Correction Officer with the New York City Department of Correction. Cariello was considered a member of the Pension Fund and made all her required contributions pursuant to the New York City Administrative Code § 13-104.
On December 16, 2014, in the course of her employment, the petitioner was performing a search of an inmate. The petitioner and other Correction Officers were forced to attempt to physically restrain the inmate, after the inmate punched another Correction Officer. In the process of restraining the inmate, Cariello fell and banged both her knees and left shoulder several times against a metal bench and other items in the inmate's cell (hereinafter the December 2014 incident). Cariello was transported to the New York Downstate Hospital's emergency room for treatment of her injuries as a result of the December 2014 incident.
On February 5, 2015, the petitioner had an MRI of her right knee which revealed a complex tear medial meniscus with partial extrusion, among other things. An MRI conducted the next day revealed that Cariello also had arthritis with chondromalacia in her left knee.
"Often called "runner's knee", chondromalacia patella is a common condition causing pain in the kneecap. The patella is covered with a layer of smooth cartilage, which normally glides across the knee when the joint is bent." https://www.cedars-sinai.org/health-library/diseases-and-conditions/c/chondromalacia.html
Cariello received treatment from Dr. Charles DeMarco, M.D., a board-certified orthopedic surgeon (hereinafter Dr. DeMarco). In Dr. DeMarco's report dated February 16, 2015, he noted that the petitioner suffered from pain, clicking, and popping in both knees. He diagnosed Cariello with meniscus pathology and ligamentous pathology of both knees. The report also noted that Cariello was still performing full work duties at the time. Dr. DeMarco cautioned the petitioner to be very careful due to the condition of her knees.
On June 18, 2015, the petitioner was also evaluated by Dr. Christopher Kyriakides, D.O. Dr. Kyriakides noted that petitioner suffered from a positive left shoulder impingement with acromioclavicular tenderness. A subsequent MRI of the left shoulder revealed a partial rotator cuff tear, tear of the anterior labrum and joint and bursal effusion.
The acromioclavicular, or AC, joint is a joint in the shoulder where two bones meet. One of these bones is the collarbone, or clavicle. https://www.hopkinsmedicine.org/health/conditions-and-diseases/ac-joint-problems
Cariello alleges that she attempted to continue working and delayed any surgical intervention. On October 5, 2015, the petitioner had right knee surgery. Dr. DeMarco continued to treat the petitioner. In Dr. DeMarco's report dated October 13, 2015, he noted that the petitioner had continued pain and limitation in the left knee and recommended post operative physical therapy for the right knee.
In Dr. DeMarco's report dated May 2016, he noted that the petitioner was a candidate for left knee surgery and that the petitioner's range of motion in the left shoulder had decreased. In July 2016, Dr. DeMarco recommended ACL reconstruction in the left knee but noted that the reconstruction would not resolve the underlying degenerative arthritis in Cariello's left knee.
During February of 2017, the petitioner continued to experience pain in her left and right knees. In May 2017, Cariello underwent a left knee arthroscopy.
The petition alleges that although Cariello experience advanced degenerative arthritis in her left knee that these conditions only became symptomatic after the December 2014 incident. In April 2020, Dr. David Drucker, M.D., a board-certified orthopedic surgeon, issued a report in which he noted that the petitioner's condition stemmed from the December 2014 incident. Dr. Drucker reviewed the MRI radiographs taken at the emergency room in 2014. He noted that there was no arthritis present in petitioner's right knee and attributed the presence of arthritis in later films to the December 2014 incident and surgery.
The petition states that although Cariello filed prior applications for disability retirement the subject of the instant Article 78 involves the June 29, 2018, refiled application for disability retirement benefits pursuant to Retirement and Social Security Law § 507-c. In prior applications, the Medical Board had found that Cariello's documentary and clinical evidence failed to substantiate that petitioner was disabled from performing the duties of a Correction Officer.
On October 24, 2019, the Medical Board found that the petitioner was disabled from performing the duties of a Correction Officer. However, the Medical Board found that the December 2014 incident was not the cause of Cariello's disability. The Medical Board attributed the petitioner's disability to the chronic degenerative arthritis of both knees, which predated the December 2014 incident.
On December 11, 2020, the Medical Board reconsidered the petitioner's application which included additional evidence from Dr. Drucker. However, the Medical Board reaffirmed its prior decision.
On June 14, 2021, Cariello received a letter from NYCERS indicating that her application pursuant to Retirement and Social Security Law § 507-c had been denied by the Board of Trustees.
In the instant special proceeding, Cariello seeks, among other things, to review and annul the determination by the NYCERS respondents, denying the petitioner a pension of three quarters of her salary as required by the Retirement and Social Security Law § 507-c.
MOTION PAPERS
The petitioner's commencement papers consist of a notice of petition, verified petition, eight annexed exhibits labeled A through H. Exhibit A is described as radiological reports. Exhibit B is designated medical records from Dr. DeMarco. Exhibit C contains six pages that are designated as medical records from New York Orthopaedic Surgery and Rehabilitation. Exhibit D is a copy of medical records and is described as operative reports. Exhibit E includes four pages and is designated medical records from University Orthopedics of New York, PLLC. Exhibit F is designated medical records from Dr. Drucker. Exhibit G is described as the reports of the Medical Board. Exhibit H is letter dated June 14, 2021, from NYCERS. It is described as a denial letter.
The NYCERS respondents answering papers consist of a verified answer, twenty annexed exhibits labeled A through T, and a memorandum of law. Exhibit A is a copy of a NYCERS Retirement and Benefits Application for Membership Tier 3 and Tier 4 Members received on July 26, 2005. Exhibit B is described as the December 16, 2014 Incident Report. Exhibit C is described as Retirement Application received on June 29, 2018. Exhibit D is a letter from NYSCERS dated November 13, 2018. Exhibit E is described as the Medical Board's report dated December 20, 2018. Exhibit F is described as medical records. Exhibit G is described as a NYCERS denial letter dated January 3, 2019. Exhibit H is a copy of the Board of Trustee Minutes for a meeting held on April 11, 2019. Exhibit I is described as a NYCERS denial letter dated April 12, 2019. Exhibit J is described as June 10, 2019, receipt of a renewal application. Exhibit K is a letter from NYSCERS dated June 14, 2019. Exhibit L is a letter from NYSCERS dated September 24, 2019. Exhibit M is described as the Medical Board's report dated October 24, 2019. Exhibit N includes eleven pages described as NYCERS denial letters dated February 7, 2020, and February 18, 2020. Exhibit O is described as a Medical Board Addendum Report dated December 11, 2020. Exhibit P is described as Board of Trustees' letters dated March 30, 2020, and May 17, 2021. Exhibit Q is a copy of the Board of Trustee Minutes for a meeting held on June 10, 2021. Exhibit R is described as a Board of Trustees' resolution dated June 10, 2021. Exhibit S is described as reference materials from the June 10, 2021, that include the job description for a Correction officer. Exhibit T is a letter from NYCERS dated June 14, 2021. It is described as a final determination. This exhibit is an exact duplicate of petitioner's exhibit H.
LAW AND APPLICATION
In this Article 78 proceeding, petitioner, a retired employee of the New York City Department of Correction ("DOC"), seeks a judgment from this Court, inter alia, (1) reviewing and annulling respondents' June 14, 2021 denial of petitioner's performance of duty disability retirement application; (2) directing and ordering respondents to retire petitioner with a disability retirement allowance under RSSL § 507-c; or (3) directing respondents by way of remand, to review Petitioner's application for a performance of duty disability retirement benefit.
Petitioner filed an application with NYCERS on June 29, 2018, for performance of duty disability retirement pursuant to Retirement and Social Security Law ("RSSL") § 507-c from DOC. The claim was based on an incident that occurred on December 16, 2014, where she was allegedly injured while restraining an inmate.
The NYCERS Medical Board ("Medical Board") interviewed and examined the petitioner. It also reviewed the medical evidence the petitioner submitted on at least three separate occasions. After that consideration, the Medical Board determined that the petitioner was disabled from full duty as a correction officer but that she failed to establish that her disability was caused by the December 2014 incident. This finding was based on the Medical Board's determination that petitioner's disability was caused by pre-existing severe degenerative arthritis to both knees and not an acute injury, and by the fact that the petitioner returned to work full duty one day after the incident.
In a proceeding under CPLR Article 78, judicial review of an administrative agency's determination is limited in scope to determining whether the challenged agency decision had a rational basis (see Pell v Bd. of Educ., 34 N.Y.2d 222, 230-31 [1974]).
In the context of New York's public retirement systems, an applicant for a disability pension bears the burden of establishing, as a matter of law, that a causal relationship exists between the service-related accident and the disability (see Connelly v. Bd. of Trs. of the New York City Fire Dep't, Art. 1-B Pension Fund, 237 A.D.2d 602, 602 [2nd Dept 1997], citing Matter of Draves v Board of Trustees, 203 A.D.2d 568, 569 [2nd Dept 1994 and there is no presumption in his or her favor which the Board of Trustees must overcome (see Matter of Archul v Board of Trustees, 93 A.D.2d 716, 717 [1st Dept 193], affd 60 N.Y.2d 567 [1983]).
The Medical Board determines whether a member applying for accidental disability retirement benefits is disabled (see Administrative Code of City of NY § 13-167[b]; Vargas v New York City Employees' Ret. Sys., 95 A.D.3d 1345, 1346 [2nd Dept 2012]). The Board of Trustees is bound by a Medical Board finding that the applicant is disabled (id.). In cases where the Medical Board finds that the applicant is disabled, the Medical Board must further determine the causation of the disability, and make a recommendation to the Board of Trustees, which has the ultimate authority to determine causation (see Matter of Borenstein v New York City Employees' Retirement System, 88 N.Y.2d 756 at 760-61 [1976]). The Board of Trustees must then make its own evaluation as to the Medical Board's recommendation regarding causation (see Meyer v Bd. of Trs. of the New York City Fire Dep't, Art. 1-B Pension Fund, 90 N.Y.2d 139, 145-46 (1997); Suppan v New York City Employees' Ret. Sys., 37 A.D.3d 474, 475 [2nd Dept 2007]).
The determination of the Board of Trustees and the Medical Board is conclusive if it is not irrational, arbitrary, or capricious (Suppan v New York City Emps. Ret. Sys., 37 A.D.3d 474 [2nd Dept 2007]). In the context of pension disability cases, substantial evidence is construed to require "some credible evidence" (Borenstein, 88 N.Y.2d at 756). In Borenstein, the Court further held that a review by the Medical Board of the medical record submitted by petitioner and an examination of petitioner constituted credible evidence and that the Medical Board's determination regarding disability was, therefore, neither arbitrary nor capricious. Id. at 760-761
The Medical Board reviewed the medical evidence three separate times and interviewed and examined petitioner. The Medical Board, in its review of the medical evidence submitted by petitioner, determined that petitioner's disabling condition was caused by her pre-existing degenerative arthritic condition to both knees and not to an acute injury. The Medical Board noted, inter alia, that the petitioner was able to return to full duty two days after the incident and that she was receiving continuous treatment for degenerative conditions to both knees long before the incident occurred. The Board of Trustees accepted the Medical Board's findings of disability and considered the Medical Board's determination that the petitioner did not establish that her disability was caused by the December 2014 incident.
In the case at bar, the administrative record establishes that petitioner was able to return to work within one day after the December 2014 incident. It also establishes that the petitioner had severe degenerative arthritis to both knees prior to the incident.
This led the Medical Board to rationally and reasonably conclude that Petitioner's arthritis to both knees predated the December 2014 incident, that the incident was not the competent cause of petitioner's disability, and that the incident did not permanently aggravate a pre-existing condition to the point of disability.
Thereafter, the Board of Trustees heard testimony from petitioner and argument from petitioner's counsel, discussed petitioner's case and ultimately made the determination to adopt the Medical Board's recommendation.
Accordingly, the Medical Board's opinion that the December 2014 incident was not the competent causal factor of petitioner's disability was supported by credible evidence and, as such, the Board of Trustees' denial of Petitioner's Performance of Duty Disability Retirement Application was neither arbitrary nor capricious.
CONCLUSION
The petition by Donna Cariello for a judgment pursuant to CPLR Article 78 and New York Retirement and Social Security Law § 507-c annulling the action of the respondents in denying petitioner a performance of duty disability retirement pension is denied.
The petition by of Donna Cariello for a judgment pursuant to CPLR Article 78 and New York Retirement and Social Security Law § 507-c directing and ordering respondents to retire petitioner with a three-quarter disability retirement; or in the alternative directing and ordering respondents, by way of remand, to review petitioner's application for a performance of duty disability retirement benefit is denied.
The petition is dismissed.
The foregoing constitutes the decision, order, and judgment of this Court.