Opinion
100907/2016
01-09-2018
Michael TAPIA, Petitioner, v. NEW YORK CITY POLICE DEPARTMENT PENSION FUND, et al., Respondents.
Petitioner: Ungard & Cifuni, 291 Broadway, Suite 1400, New York, NY 10007 Respondents: Zachary W. Carter (attorneys on the papers are Sheryl Neufeld, Nicholas Ciappetta, & Angelie Thomas), Corporation Counsel of the City of New York, 100 Church Street, Admin. Law Div. New York, NY 10007
Petitioner: Ungard & Cifuni, 291 Broadway, Suite 1400, New York, NY 10007
Respondents: Zachary W. Carter (attorneys on the papers are Sheryl Neufeld, Nicholas Ciappetta, & Angelie Thomas), Corporation Counsel of the City of New York, 100 Church Street, Admin. Law Div. New York, NY 10007
Carmen Victoria St. George, J.
Petitioner, a police officer with the New York City Police Department (NYPD), was appointed to NYPD on July 11, 2005. He sustained two line-of-duty (LOD) injuries in 2008, following each of which he returned to full duty. He sustained a third LOD injury on August 14, 2009, and his treating physician diagnosed him with back sprain, contusion of the coccyx, and tendinitis of the right wrist. At petitioner's follow-up treatment on October 13, 2009, his doctor diagnosed him with mild herniation, nerve impingement, and spondylosis. Petitioner returned to full duty in November, and did not report further problems until January 6, 2011.
On January 6, 2011, petitioner treated with an orthopedic surgeon, complaining that for the past few weeks he had suffered a re-exacerbation of problems stemming from the August 13, 2009 injury. Ultimately, on May 16, 2011, he underwent lumbar fusion surgery. On January 17, 2012, after petitioner had worked on restricted duty for around eleven months, the police department's supervising chief surgeon recommended that petitioner undergo an evaluation to determine whether because of the lumbar fusion surgery petitioner was disabled from duty. The Medical Board reviewed all records including the reports of petitioner's doctor and surgeon, and concluded that petitioner was disabled from the surgery as well as from his morbid obesity and his congenital spondylolysis. The Medical Board found no causal connection with petitioner's 2008 or 2009 LOD injuries, noting that petitioner had returned to full duty after these accidents and that between November 2009 and February 2011 petitioner had remained on active duty. The Board of Trustees adopted the Medical Board's recommendation that petitioner receive ordinary disability retirement (ODR) benefits rather than accident disability retirement benefits (ADR) on December 12, 2012.
The Medical Board and the Board of Trustees reconsidered petitioner's application for ADR in March 2013. The Medical Board reaffirmed its earlier findings, but the Board of Trustees remanded the matter for further findings on May 13, 2015. Upon reexamination, the Medical Board adhered to its original recommendation, concluding that petitioner's subsequent documentation—a 2015 note from a pain management specialist who had commenced his treatment of petitioner on November 6, 2014—did not alter its finding regarding causation. The Board of Trustees tabled final determination of petitioner's application on several occasions and considered the February 8, 2016 letter from petitioner's counsel. On February 10, 2016, the Board of Trustees adopted the Medical Board's finding in a tie vote. Petitioner currently challenges the decision as irrational. In opposition, respondents argue the decision is rational and is supported by credible evidence.
The Court has considered all the parties' submissions and legal arguments and need not detail them here. After careful consideration, it denies the petition. Respondent denied petitioner's application for accident disability benefits as the result of a tie vote, and thus this Court cannot remand the matter "unless the petitioner establishes that the determination is completely unsupported by credible evidence...and that the disability at issue is, as a matter of law, the natural and proximate result of a service-related accident" ( Deleston v. Safir , 294 AD2d 207, 207 [1st Dept 2002] [citing Matter of Meyer v. Bd. of Trustees , 90 NY2d 139 [1997] ). Respondents' reliance on the determination of its examining expert and of the Board was reasonable (see City of New York v. New York City Civil Serv. Commission , 20 AD3d 347, 348 [1st Dept 2005] ), as was their reliance on the facts that petitioner returned to full duty for over a year and made no complaints concerning his condition during that period. Often, where there is a lapse of time between the LOD accident and the disabling condition and courts have upheld such findings, the lapse of time has been greater (e.g. , Visconti v Kelly , 49 AD3d 273 [1st Dept 2008] [five years]; Dugan v. Kerik , 16 AD3d 142 [1st Dept 2005] [fifteen years] ). Dugan v Ward , however, involved three LOD injuries, the third of which occurred one year before petitioner's retirement (See Dugan v. Ward , 160 AD2d 532, 533 [1st Dept 1990] ). Thus, it was rational to find that the LOD injury was not the cause of petitioner's disability (See id. ). In an Article 78 proceeding regarding a disability application, "the court may not substitute its judgment for that of the Medical Board" if the decision is rational and supported by evidence ( Hughes v. Kelly, 93 AD3d 604, 605 [1st Dept 2012] ). It therefore was rational for respondents to conclude that petitioner's spondylolysis was congenital, and to reject the opinion of petitioner's doctors that his LOD injuries were the cause.
As petitioner has not satisfied his substantial burden of showing irrationality, it is
ORDERED and ADJUDGED that the petition is dismissed. The Clerk shall enter judgment accordingly.