Collins v. Kelly
| Decision Date | 08 December 2011 |
| Docket Number | Index No. 114924/2010 |
| Citation | 2011 NY Slip Op 33495 |
| Parties | In the Matter of the Application of NANCY COLLINS, Petitioner For a Judgment Under Article 78 of the Civil Practice Law and Rules v. RAYMOND KELLY, as Police Commissioner of the City of New York, and as Chairman of the Board of Trustees of the Police Pension Fund, Article II; BOARD OF TRUSTEES of the Police Pension Fund, Article II; and NEW YORK CITY POLICE DEPARTMENT, Respondents |
| Court | New York Supreme Court |
For Petitioner
Jeffrey L. Goldberg Esq.
2001 Marcus Avenue, Lake Success, NY 11042
Iylse Sisolak, Assistant Corporation Counsel
100 Church Street, New York, NY 10007
I. BACKGROUND
Respondent Board of Trustees of the Police Pension Fund granted petitioner, a New York City Police Officer, ordinary disability retirement on July 9, 2008, based on a diagnosis of major depression. On May 8, 2009, petitioner applied for reclassification of her ordinary disability retirement to accident disability retirement (ADR) due to post-traumatic stressdisorder (PTSD) she sustained from her work at the World Trade Center site after the terrorist attacks September 11, 2001. On July 20, 2009, respondents' medical board recommended denial of ADR on the ground that family factors arising in 2006 and 2007 caused her depression, rather than her service as a police officer on or after September 11, 2001. The medical board reviewed petitioner's application twice more, but reaffirmed its determination. Adopting the findings of the medical board, respondent Board of Trustees denied petitioner ADR benefits July 14, 2010.
In this proceeding pursuant to C.P.L.R. Article 78, petitioner seeks to annul the determination denying her ADR as arbitrary and capricious or to require respondents to review her application once again. C.P.L.R. § 7803(3); N.Y.C. Admin. Code § 13-252.1. Petitioner also seeks respondents' production of specified documents, 'but nowhere indicates the grounds for this request.
In sum, even though petitioner benefits from the presumption of an accidental disability due to work at the World Trade Center site on and following September 11, 2001, respondents need only present relevant, credible evidence supporting a contrary conclusion to rebut the presumption. They need not attack the conclusions by petitioner's treatment providers directly and show that they are unsupported or unscientific. Nor does respondents' uncodified, non-mandatory instruction, that their medical board explain its rejection of outside physicians' contraryconclusions, impose a binding requirement for rebuttal more stringent than the applicable precedent.
Nothing in the current record, however, dispels the observations by petitioner's expert that respondents' psychological evaluations supporting their denial of ADR never explored her World Trade Center experience. Such a failure to conduct the relevant examination is no less arbitrary than failing to consider other relevant medical evidence, which is grounds for a remand, nor is a medical conclusion that is not based on such an examination any more supported by relevant, credible evidence than a conclusion lacking other medical support. Therefore the court remands the proceeding for a review of whether respondents' evaluations avoided focussing on the source of petitioner's disability that her treatment providers diagnosed and, if so, a reevaluation. A further evaluation must examine that identified source and address whether her World Trade Center work contributes to her disability.
II. APPLICABLE STANDARDS
In reviewing respondents' determination regarding disability, the court must defer to the medical board's determination of causation and uphold it if rationally based and not arbitrary, capricious, an abuse of discretion, or contrary to law. Borenstein v. New York City Employees' Retirement Sys., 88 N.Y.2d 756, 760 (1996); Maldonado v. Kelly. 86 A.D.3d 518, 519 (1st Dep't 2011); Claudio v. Kelly, 84 A.D.3d 667 (1st Dep't 2011); Jefferson v. Kelly, 51 A.D.3d 536 (1st Dep't 2008). SeeLinden Airport Mgt. Corp. v. New York City Economic Dev. Corp., 71 A.D.3d 501, 502 (1st Dep't 2010); Valentin v. New York City Police Pension Fund, 16 A.D.3d 145 (1st Dep't 2005); City of New York v. O'Connor, 9 A.D.3d 328 (1st Dep't 2004). Physical or mental incapacity to perform city service qualifies a police officer for ordinary disability retirement. N.Y.C. Admin. Code § 13-251. If that incapacity is "a natural and proximate result of an accidental injury received in such city-service," the police officer is eligible for ADR. N.Y.C. Admin. Code § 13-252. Incapacity resulting from "a qualifying World Trade Center condition as defined in section two of the retirement and social security law," is presumptive evidence of an injury incurred as a "result of an accident" in the performance of service. N.Y.C. Admin. Code § 13-252.1 (1) (a) ; Maldonado v. Kelly, 86 A.D.3d at 518. Both depression and PTSD are qualifying conditions. N.Y. Retire' & Soc. Sec. Law § 2 (36) (a), (b), and (d).
The medical board's medical examination must establish disability N.Y.C. Admin. Code §§ 13-251, 13-252. Thus the medical board's fact finding process requires (1) determining whether the applicant is physically or mentally incapable of performing city work and (2) whether an "accidental" injury while in service proximately caused the applicant's disability to perform that work. Meyer v. Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund. 90 N.Y.2d 139, 144 (1997); Borenstein v. New York City Employees' Retirement Sys., 88 N.Y.2d at 760. The medical board's determination must be supported bysubstantial evidence, which must be credible, relevant evidence reasonably adequate to support a fact or conclusion. Jennings v. New York State Off, of Mental Health, 90 N.Y.2d 227, 239 (1997); Borenstein v. New York City Employees, Retirement Sys., 88 N.Y.2d at 760. Credible evidence is evidence from a reliable source, which must reasonably tend to support the fact or conclusion for which the evidence is offered, as long as it is neither conjecture nor simply a conclusion itself. Meyer v. Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 N.Y.2d at 147; Cusick v. Kerik, 305 A.D.2d 247, 248 (1st Dep't 2003).
The presumption of an accidental disability from work in the line of duty at the World Trade Center site on,or following September 11, 2001, provided by N.Y.C. Admin. Code § 13-252.1(1) (a) shifts the burden of proof to respondents to show that the disabling condition did not arise from work at the World Trade Center site after the terrorist attacks. Maldonado v. Kelly, 86 A.D.3d at 519. Credible medical evidence that the applicant's condition from work at the site on or following September 11, 2001, did not cause her disability thus is required to rebut the presumption. N.Y.C. Admin. Code § 13-252.1; Maldonado v. Kelly, 86 A.D.3d at 519; Bitchatchi v. Board of Trustees of the N.Y. City Police Dept. Pension Fund, Art. II, 86 A.D.3d 427 (1st Dep't 2011); Velez v. Kelly, 84 A.D.3d 693 (1st Dep't 2011); Claudio v. Kelly, 84 A.D.3d 667.
III. PETITIONER'S ACCIDENT DISABILITY RETIREMENT CLAIM
Petitioner claims entitlement to ADR based on major depressive disorder and PTSD caused by her recovery work after the terrorist attacks. She maintains that respondents' denial of ADR failed to apply the required standards in evaluating the cause of her disability, reaching a conclusion contrary to the evidence, and disregarding their own rules.
Petitioner presented evidence that she suffered from depression and PTSD, which her experts concluded arose from her service on and after September 11, 2001. Justin Germaine, a licensed clinical social worker, began treating petitioner October 30, 2006, for symptoms of an adjustment disorder and PTSD. Germaine found that petitioner's post-traumatic stress reaction to her work following the attacks September 11, 2001, exacerbated the loss petitioner experienced from her sibling's later suicide, when she suffered a severe grief reaction with depression and anxiety. Psychologist Joseph Andrews Ph.D. evaluated petitioner November 13, 2008, and diagnosed both major depressive disorder and PTSD. Frank Dowling M.D., who treated petitioner in 2009 for chronic depression and PTSD, found, in contrast yet still consistent with Germaine, that her brother's death in 2006 exacerbated symptoms she already was experiencing.
Ernest Leuci M.A., a licensed clinical social worker, treated petitioner from September 2008 through February 2010 for recurrent major depression, PTSD, and anxiety disorder. In hisreport December 27, 2008, Leuci specifically found, more consistent with Dr. Bowling, that petitioner's debilitating symptoms after her daughter's birth juxtaposed with her brother's death forced petitioner to confront her own mortality as she had on September 11, 2001, and in the recovery operations, triggering her PTSD and depression. In short, when exposed to a life versus death stimulus and forced to confront it, she no longer could suppress her fears from her World Trade Center experience. Leuci also specifically denied that petitioner's family difficulties caused her mental conditions. Like both Dr. Dowling and Germaine, Leuci concluded that petitioner's conditions arose from her work relating to the attacks September 11, 2001, and disabled her from working.
Given petitioner's evidence, respondents bore the burden to rebut the presumption that - her service in recovery operations on or after September 11, 2001, caused her disabling conditions. The presumption prevails "unless the contrary be proved by competent evidence." N.Y.C. Admin. Code § 13-252.1(1)(a). As set forth above, the evidence sufficient to rebut the presumption need only be relevant, credible evidence...
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