SUPREME COURT OF NEW
YORK
NEW
YORK COUNTY
In the Matter of the
Application of
Stanley
Jefferson, Petitioner,
against
Raymond Kelly,
as
the Police Commissioner of the City of New York,
et al.,
Respondents.
No. 103125/06
2006 NY Slip Op 26417
2006 N.Y. Misc. Lexis 2954
October 17, 2006, Decided
Lottie E. Wilkins, J.
Petitioner seeks
an order, pursuant to CPLR article 78, annulling respondents’ determination
which denied petitioner’s application for accident disability retirement
benefits and directing respondents to retire petitioner with a line of duty
accidental disability allowance retroactive to the date of his retirement on
ordinary disability. In the alternative, petitioner asks that the mater be
remanded for further hearings and that petitioner be allowed to present
additional testimony in support of his application for accidental disability
benefits. Petitioner also seeks a subpoena pursuant to CPLR 2307 directing
service of the record and minutes of the proceedings below.
Petitioner became a uniformed
police officer with the NYPD on December 8, 1997. It is not seriously disputed
that, shortly after the September 11, 2001 attacks, [*2] petitioner was
assigned to work at the World Trade Center site for some period of time.
Sometime in or about July 2004, respondent Police Commissioner submitted an
application to the Article II Medical Board on petitioner’s behalf for ordinary
disability retirement (ODR). The Commissioner submitted the application on the
recommendation of the Police Supervising Chief Surgeon who, in May 2004,
diagnosed petitioner with symptoms of depression, anxiety and agoraphobia. On November 8, 2004, the Article II Medical Board unanimously approved the
Commissioner’s application for ODR, finding that petitioner suffered from major
depressive disorder.
Although the
Medical Board approved the Commissioner’s ODR application on November 8, 2004, it actually first
reviewed the file about three months earlier, on August 9, 2004. At that first review, petitioner was
examined in person and the Board reviewed reports from the Police Department’s
Psychological Evaluation Unit (PEU), as well as from Dietra
Gamar, a social worker who treated petitioner, and Hillery Bosworth, M.D., a
psychiatrist.
The May
3, 2004 PEU report, written by police psychologist Marissa Barra, covered the preceding year during which petitioner’s
psychological problems were followed by PEU. During much of that time,
petitioner was out sick from work as an apparent result of regular anxiety and
panic attacks. According
to Ms. Barra, petitioner first walked into PEU on June 30, 2003 while being treated by another doctor for a cardiac
condition. At that first meeting, petitioner reported that he had been
experiencing anxiety since January 2002 and that, in March 2003, an angiogram confirmed the presence of coronary artery disease
and a 30% blockage in one of his coronary arteries. Petitioner also
reported that his mood had worsened significantly in January 2003 and that,
within a week of his March 2003 angiogram, his mother
also died. Following a visit to Lenox
Hill Hospital
on June 28, 2003,
petitioner met with Dr. Bosworth for the first time
and also began therapy with Dietra Gamar. Ms. Barra’s report
concluded by questioning whether petitioner “possibly had a longer standing
depression” than had been previously recognized. She noted little improvement
in petitioner’s symptoms which included panic attacks, sleep disturbance,
decreased appetite, lack of concentration and motivation, social withdrawal and
feelings of sadness despite a year of therapy and medication. Ms. Barra concluded with a diagnoses
of generalized anxiety disorder and major depressive disorder and questioned
whether petitioner would ever be well enough to report back to full duty.
The Medical Board also
considered a July 11, 2003 letter from petitioner’s
therapist, Dietra Gamar,
written at petitioner’s request. In her letter Ms. Gamar
stated that petitioner was deeply affected by his mother’s death in early 2003
and was overwhelmed with grief, all while dealing with his own coronary disease
problems. Although Ms. Gamar’s letter did
mention that petitioner had been assigned to Ground [*3] Zero following 9/11, she
did not opine that the episode was causally connected to any of petitioner’s
psychological problems.
The final piece
of information the Medical Board considered on its first review of the ODR
application was an August 19, 2003
letter from psychiatrist Hillery Bosworth,
also sent to PEU at petitioner’s request. Dr. Bosworth
stated that she had been seeing petitioner on a monthly basis for
psychopharmacologic management and that he had been diagnosed with moderate
panic disorder with agoraphobia and major depressive disorder. Dr. Bosworth reported that petitioner was taking Paxil and Ativan. She did not
offer an opinion on the cause (or causes) of petitioner’s condition.
Notwithstanding
the above information, the Medical Board would not render a decision on the
Commissioner’s ODR application. After noting that the reports from the treating
social worker and psychiatrist were over one year old, the Board deferred
decision pending receipt of updated reports from them, including estimates as
to petitioner’s prognosis.
In a November 3,
2004 letter, Dr. Bosworth expressed a belief that
petitioner “could adequately perform virtually any work duty, with the possible
exception of duty which requires the ability at all times to react instantly to
a life and death situation” (emphasis in the original). In her November 7, 2004 update, Dietra Gamar opined that
petitioner was fully competent to work in an administrative capacity, but not
ready to return to full and active duty. Although there was some mention of
9/11 and the death of petitioner’s mother, neither Dr. Bosworth
nor Ms. Gamar offered an opinion as to the cause of
petitioner’s disability. With this additional information having been provided,
the Medical Board approved the Commissioner’s application for ODR on November 8, 2004.
Several months
later, on May 5, 2005,
petitioner applied for accident disability retirement (ADR). In a letter
attached to his application, petitioner stated that, after 9/11/01, he began to suffer from chronic fatigue,
shortness of
breath and chest pains. Petitioner further stated that, as a result of 9/11 and
other life changing circumstances, he had become a “different person.” This
application apparently included a third letter from Dr. Bosworth,
dated May 4, 2005, wherein she states that “it is possible that [petitioner’s]
exposure to 9/11 may have exacerbated his conditions.” n1 Because [*4]
petitioner had submitted a new application for ADR benefits on his own behalf,
the Police Pension Fund Board of Trustees remitted petitioner’s case back to
the Medical Board for reevaluation and reexamination. On June 20, 2005, after its reevaluation, the
Medical Board unanimously denied petitioner’s application for ADR and
unanimously reaffirmed its prior approval of the ODR benefits. Both
determinations were subsequently affirmed by the Board of Trustees on November 9, 2005. This article 78
proceeding ensued.
Petitioner claims
that denial of his ADR application was arbitrary and capricious, as well as
violative of state and federal statutes and constitutions. Specifically,
petitioner alleges that the Board of Trustees did not apply the proper legal
test for determining eligibility for line of duty ADR benefits and that the
final determination was not based on substantial evidence. Respondents argue
that the determination to deny petitioner’s application for ADR was neither
arbitrary nor capricious under the circumstances because there is some credible
evidence in the record on which to base the conclusion that petitioner’s disability
was not caused by his assignment to the World
Trade Center
site. Additionally respondents argue that petitioner cannot qualify for the World
Trade Center
presumption because he did not file the necessary notice of participation.
Ordinary disability
retirement, or ODR, is available to a member of the NYPD when a medical
examination shows that the member is physically or mentally incapacitated for
the performance of duty and ought to be retired (see, Administrative Code of
the City of New York § 13-251). Accident disability retirement benefits, which
are greater than ODR benefits, are available when examination and investigation
shows that the member 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 wilful negligence on the part of the member and that the
member should be retired (see, Administrative Code of the City of New York § 13-252).
Generally speaking, an applicant
for ADR benefits must prove the existence of a disability and that the
disability is causally related to an injury sustained in the line of duty
(see, Matter of Drayson v Bd. of Trustees of the
Police Pension Fund of the City of New York, Art. 2, 37 A.D.2d 378, 326
N.Y.S.2d 328[1st Dept. 1971]). Courts defer to rational determinations by the
Board of Trustees of the Police Pension Fund when it comes to applications for
accidental disability benefits, especially determinations regarding causation
(see, Matter of Canfora v Bd. of Trustees of the
Police Pension Fund, Article II, 60 N.Y.2d 347, 457 N.E.2d 740, 469 N.Y.S.2d
635 [1983]). “Ordinarily, the decision of the board of trustees as to the cause
of an officer’s disability will not be disturbed unless its factual findings
are not supported by substantial evidence or its final determination and ruling
is arbitrary and capricious” (id., citing [*5] Matter of Fiore v Board. of
Educ., 48 A.D.2d 850, 369 N.Y.S.2d 179, affd 39
N.Y.2d 1016, 355 N.E.2d 300, 387 N.Y.S.2d 245; Matter of Drayson
v Board of Trustees, 37 A.D.2d 378, 380, 326 N.Y.S.2d 328, affd
32 N.Y.2d 852, 299 N.E.2d 684, 346 N.Y.S.2d 273).
Although the
burden of proof with respect to causation usually rests with the ADR applicant,
the Legislature has seen fit to provide a presumption in favor of accidental
line of duty causation in certain situations. One such situation involves
members of the NYPD who, like petitioner, worked at the World
Trade Center
site following the 9/11 attacks. The Administrative Code provides that a
“disability to a member who participated in World Trade Center rescue, recovery
or cleanup operations for a minimum of forty hours shall be presumptive
evidence that it was incurred in the performance and discharge of duty and the
natural and proximate result of an accident not caused by the member’s own
willful negligence, unless the contrary be proved by competent evidence”
(Administrative Code of City of NY § 13-252.1[1][a]).
This section of the Administrative Code specifically includes “post-traumatic
stress disorder, anxiety, depression, or any combination of such conditions” as
qualifying disabilities for purposes of this presumption. (Administrative Code
§ 13-252.1[1][c][iv]). As a condition precedent to
eligibility for the presumption, however, the member must file a sworn
statement on a form provided by the retirement system setting forth the dates
and locations of employment (Administrative Code § 13-252.1[1][e]).
There is no body of case law analyzing
what constitutes proof by competent evidence for purposes of rebutting the
World Trade Center presumption, however, the parties point to a line of cases
discussing whether there is some credible evidence to support a “no causation”
determination on a typical ADR application (see, Matter of Meyer v Bd.
of Trustees of the New York City Fire Dept., Article 1-B Pension Fund, 90
N.Y.2d 139, 681 N.E.2d 382, 659 N.Y.S.2d 215 [1997]; Matter of Cusik v Kerick, 305 A.D.2d 247,
760 N.Y.S.2d 149 [1st Dept. 2003]; Matter of Rodriguez v Bd. of Trustees of New
York City Fire Dept., Article 1-B Pension Fund, 3 A.D.3d 501, 770 N.Y.S.2d 132
[2d Dept. 2003]). Additionally,
the parties cite to cases dealing with the so-called “Heart Bill,” which
creates a similar presumption that a previously undetected heart condition is
causally related to an accidental injury sustained in the line of duty and
which also has identically worded rebuttal language as the World Trade Center
Presumption (see, General Municipal Law § 207-k; see also, Matter of
Travers v Kelly, 12 Misc. 3d 887, 815 N.Y.S.2d 407 [Sup Ct, NY County, 2006, Stallman, J.]; Matter of Wendling
v Kelly, Sup Ct, NY County, Nov. 4, 2005, Feinman,
J., Index No. 100187/04) . Interestingly, the Court of Appeals has held that
the two standards are essentially the same: in order to rebut the presumption,
there must be some credible medical
evidence in the record on which to base the determination that the (presumed)
accidental injury did not cause the disability (see, Matter of Goldman v
McGuire, 64 N.Y.2d 1041, 478 N.E.2d 983, 489 N.Y.S.2d 467 [1985], affg 101 A.D.2d 768, 475 N.Y.S.2d 849 [1st Dept. 1984]; see
also, Matter of Meyer, supra, 90 N.Y.2d 139).
Applying the above standard to
these facts, there was credible medical evidence [*6] in this record on which
to base the determination that petitioner’s disability was not caused by his
assignment to the World Trade Center site. There were numerous
references in the materials reviewed linking petitioner’s anxiety and panic, as
well as the depression that came with them, to the death of his mother and his
incipient cardiac disease. Furthermore, notwithstanding the existence of
a statutory presumption, neither Dr. Bosworth nor Ms.
Gamar offered a conflicting opinion that causally
linked petitioner’s psychological ailments to his World
Trade Center
assignment. If anything, the absence of causation opinions in the reports from
petitioner’s treating professionals left even more room for the Medical Board’s
exercise of its own expertise on the question of causation (cf. Matter of Borenstein v New York City Employees’ Retirement System, 88
N.Y.2d 756, 761, 673 N.E.2d 899, 650 N.Y.S.2d 614 [1996]; Matter of Drayson v Board of Trustees of Police Pension Fund of City
of NY, Art. 2, 37 A.D.2d 378, 381, 326 N.Y.S.2d 328 [1st Dept. 1971], affd 32 N.Y.2d 852, 299 N.E.2d 684, 346 N.Y.S.2d 273
[1973]).
Nor do these
facts raise issues similar to the ones dealt with by the Appellate Division in
Matter of Petrella v Bd. of Trustees of the Police
Pension Fund (141 A.D.2d 361, 529 N.Y.S.2d 307 [1st Dept. 1988]). For one
thing, there is no factual assertion in this record which would suggest that
petitioner had a preexisting psychological condition which was aggravated by
his assignment to the World Trade
Center site. Moreover, it does not
appear on this record that respondents misapplied any relevant causation rules.
Respondents rationally relied on evidence in the record which suggested that
petitioner’s condition was caused by “life changing circumstances,” and not his
service at Ground Zero (see, In re Lahm v Bloomberg,
29 A.D.3d 461, 817 N.Y.S.2d 5 [1st Dept. 2006]).
Respondents
alternatively argue that the petition should be denied in any event because
petitioner did not submit the necessary forms in order to qualify for the World
Trade Center
presumption prior to applying for ADR. There is indeed a requirement that any
officer seeking the benefit of the World Trade Center presumption must submit a
form supplied by the retirement system indicating the dates and locations of
service (Administrative Code of the City of New York § 13-252.1[1][e]).
Petitioner here did submit a letter wherein he discussed his service at the World
Trade Center
site, but there is no indication that he submitted a “Notice of Participation.”
This technical argument could, on its own, be sufficient to defeat petitioner’s
claim of entitlement to the World Trade
Center presumption. However,
respondents have not clearly established that such a form is available from the
Retirement System or that its submission is regularly considered as a condition
precedent for the presumption. In general, this argument is only cursorily
asserted and, given the Court’s disposition on the merits, is academic. The
Court finds no merit to petitioner’s broader statutory or constitutional
claims. Petitioner’s motion for a subpoena is likewise denied. Accordingly, it
is
Ordered and
adjudged that the petition is denied and the proceeding [*7] dismissed.
This constitutes the
decision and judgment of the Court.
Lottie E. Wilkins, J.S.C.
Note:
- Petitioner
annexes two additional letters from Dr. Bosworth,
dated August 22, 2005
and December 22, 2005,
but both these letters postdate the Medical Board’s consideration of
petitioner’s ADR application and, thus, are dehors
the administrative record. The December
22, 2005 letter even postdates the Board of Trustee’s final
determination on the application. It is also noteworthy that the December
letter is addressed to the New York State Office of Temporary and
Disability Assistance, not the Medical Board or Pension Fund.