Meyer v. Board of Trustees of the New York City Fire Dept., Article 1-B Pension Fund by Safir

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: LEVINE; KAYE
• Citation: Meyer v. Board of Trustees of the New York City Fire Dept., Article 1-B Pension Fund by Safir, 659 N.Y.S.2d 215, 90 N.Y.2d 139, 681 N.E.2d 382 (N.Y. 1997)
• Decision Date: 08 May 1997
• Parties: , 681 N.E.2d 382 In the Matter of Robert G. MEYER, Respondent, v. BOARD OF TRUSTEES OF THE NEW YORK CITY FIRE DEPARTMENT, Article 1-B Pension Fund, by Howard Safir, Chairman, et al., Appellants. In the Matter of George W. HACKER, Respondent, v. BOARD OF TRUSTEES OF NEW YORK CITY FIRE DEPARTMENT, Article 1-B Pension Fund, et al., Appellants. In the Matter of Walter SORRENTI, Respondent, v. NEW YORK CITY FIRE DEPARTMENT Article 1-B Pension Fund, Appellant. In the Matter of Charles J. POMILLA, Respondent, v. BOARD OF TRUSTEES OF THE NEW YORK CITY FIRE DEPARTMENT, Article 1-B Pension Fund, by Carlos Rivera, Chairman, et al., Appellants.

Page 215

659 N.Y.S.2d 215

90 N.Y.2d 139, 681 N.E.2d 382

In the Matter of Robert G. MEYER, Respondent, v. BOARD OF TRUSTEES OF THE NEW YORK CITY FIRE DEPARTMENT,

Article 1-B Pension Fund, by Howard Safir,

Chairman, et al., Appellants.

In the Matter of George W. HACKER, Respondent, v. BOARD OF TRUSTEES OF NEW YORK CITY FIRE DEPARTMENT, Article

1-B Pension Fund, et al., Appellants.

In the Matter of Walter SORRENTI, Respondent, v. NEW YORK CITY FIRE DEPARTMENT Article 1-B Pension Fund, Appellant.

In the Matter of Charles J. POMILLA, Respondent, v. BOARD OF TRUSTEES OF THE NEW YORK CITY FIRE DEPARTMENT,

Article 1-B Pension Fund, by Carlos Rivera,

Chairman, et al., Appellants.

Court of Appeals of New York.

May 8, 1997.

Paul A. Crotty, Corporation Counsel of New York City (Mordecai Newman, Larry A. Sonnenshein, George Gutwirth, Ellen Ravitch and Margaret G. King, of counsel), for appellants in the first, second, third and fourth above-entitled proceedings.

Jeffrey L. Goldberg, P.C., Elmhurst (Martina I. Schmidt and Jeffrey L. Goldberg of counsel), for respondent in the first and fourth above-entitled proceedings.

Thomas F. McCarthy, New York City, for respondent in the second above-entitled proceeding.

Noah A. Kinigstein, New York City, for respondent in the third above-entitled proceeding.

OPINION OF THE COURT

LEVINE, Judge.

These appeals involve a recurring question concerning the standard of judicial review when the Board of Trustees of the New York City Fire Department Pension Fund denies by tie vote, a firefighter's application for service-related accidental disability retirement and grants only the lesser ordinary disability retirement benefits. In each case, the pension fund Medical Board found the firefighter incapacitated for the performance of duty (Administrative Code of City of N.Y. § 13-352), but further concluded that the service-related injuries had not caused each firefighter's disabling condition, either directly or by precipitating a latent condition or by aggravating a preexisting condition (see, Matter of Tobin v. Steisel, 64 N.Y.2d 254, 485 N.Y.S.2d 730, 475 N.E.2d 101). Thus, in each case, the Medical Board recommended to the Board of Trustees that the firefighter be retired for ordinary rather than accidental disability (Administrative Code § 13-353). This recommendation was upheld by tie vote when the Board of Trustees could not agree on the issue of causation (see, Matter of Canfora v. Board of Trustees, 60 N.Y.2d 347, 351-352, 469 N.Y.S.2d 635, 457 N.E.2d 740 [citing Matter of City of New York v. Schoeck, 294 N.Y. 559, 63 N.E.2d 104] ).

On the firefighters' CPLR article 78 petitions for review, the Appellate Division concluded in each case that a causal relationship between the service-related injuries and the disabling condition had been established as a matter of law, and ordered that the Board of Trustees' award of ordinary disability retirement be annulled and the application for accidental disability retirement be granted (231 A.D.2d 522, 647 N.Y.S.2d 266, 228 A.D.2d 598, 644 N.Y.S.2d 747, 228 A.D.2d 509, 643 N.Y.S.2d 681, 227 A.D.2d 627, 642 N.Y.S.2d 971). By relying exclusively on the reports of examining physicians who were of the opinion that a causal connection existed between the service injuries and the disabling condition, and on evidence that the firefighter had not returned to full duty following his final service accident, the Appellate Division implicitly held that the opinion of a nonexamining medical expert of no causation (such as that rendered by the Medical Board) does not constitute credible evidence under these circumstances. We granted leave to clarify the credible evidence requirement needed to sustain a denial of service-related disability retirement in such circumstances and now reverse in each case.

The New York City Fire Department Pension Fund is administered by the Board of Trustees pursuant to title 13 of the Administrative Code of the City of New York. A firefighter is entitled to accidental disability retirement when a medical examination and investigation shows that he or she is "physically or mentally incapacitated for the performance of city-service as a natural and proximate result of an accidental injury received in such city-service" (Administrative Code § 13-353). Like other City pension funds and retirement systems, application for accidental disability retirement involves a two-tier administrative process (see generally, Matter of Borenstein v. New York City Employees' Retirement Sys., 88 N.Y.2d 756, 650 N.Y.S.2d 614, 673 N.E.2d 899). Following a medical examination (which in each of these cases was conducted by the Fire Department medical committee), the three-physician member pension fund Medical Board, charged with passing upon all such required medical examinations and investigating all essential information in connection with a disability retirement application (see, Administrative Code § 13-323), determines whether the member is disabled for performance of duty and ought to be retired (Administrative Code § 13-352).

If the Medical Board concludes that the member is disabled, it must further determine whether the disability is "a natural and proximate result of an accidental injury received in such city-service" and certify its recommendation on this issue to the Board of Trustees, the body ultimately responsible for retiring the pension fund member and determining the issue of service-related causation (Administrative Code §§ 13-353, 13-323[b]; Matter of Russo v. Board of Trustees, 143 A.D.2d 674, 676, 533 N.Y.S.2d 78; see, Matter of Canfora v. Board of Trustees, supra, 60 N.Y.2d, at 351, 469 N.Y.S.2d 635, 457 N.E.2d 740 [construing comparable provisions governing New York City Police Pension Fund] [citing Matter of City of New York v. Schoeck, supra; Matter of Bennett v. Board of Trustees, 20 A.D.2d 522, 244 N.Y.S.2d 735, affd. 16 N.Y.2d 562, 260 N.Y.S.2d 837, 208 N.E.2d 782] ).

Where, as here, the Medical Board finds the firefighter disabled for performance of duty and the Board of Trustees becomes deadlocked on the issue of whether the disabling condition is causally related to the service-related injuries, and is thus unable to pass by majority vote a resolution retiring the firefighter for ordinary or accidental disability, by a time-honored procedural practice the application for accidental disability retirement is denied and the lesser ordinary disability benefits are awarded (see, Matter of Canfora v. Board of Trustees, 60 N.Y.2d, at 352, 469 N.Y.S.2d 635, 457 N.E.2d 740, supra; Matter of Pilkington v. Cavanagh, 12 N.Y.2d 888, 237 N.Y.S.2d 998, 188 N.E.2d 264). On subsequent review in an article 78 proceeding, the reviewing court may not set aside the Board of Trustees' denial of accidental disability retirement resulting from such a tie vote unless "it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident" (Matter of Canfora v. Board of Trustees, 60 N.Y.2d, at 352, 469 N.Y.S.2d 635, 457 N.E.2d 740, supra; Matter of McCambridge v. McGuire, 62 N.Y.2d 563, 568, 479 N.Y.S.2d 171, 468 N.E.2d 9). Since, under these circumstances, the reviewing court may only disturb the final award by finding causation established as a matter of law, as long as there was any credible evidence of lack of causation before the Board of Trustees, its determination must stand (see, Matter of Canfora v. Board of Trustees, supra, at 351, 469 N.Y.S.2d 635, 457 N.E.2d 740).

In the cases before us, respondent Board of Trustees points to evidence in the record of each case that it maintains meets the credible evidence standard, namely, an articulated medical opinion, grounded in the firefighter's medical records, that there was no causal relationship between the disabling condition and the service-related injuries. The Board of Trustees further contends that the Appellate Division improperly discounted this evidence for the sole reason that these medical opinions were not based on the experts' own physical examination of the firefighters. Thus, the Board argues that the Appellate Division erred (1) in annulling its determinations in each of these cases and (2) in apparently fashioning a rule that causation is established as a matter of law whenever the examining physicians who express an opinion on the issue of causation find that such a relationship exists, and this opinion is buttressed by the fact that the firefighter did not return to full duty following the final service accident. For the reasons that follow, we agree with the Board of Trustees as to both contentions.

First, we reject the Appellate Division's analysis to the extent it is based on the premise that the Board of Trustees must, as a matter of law, credit the opinion of examining physicians on the issue of causation over the rationally based opinion of a nonexamining physician who, nevertheless, has had the opportunity to make a professional medical judgment based on other medical data concerning the applicant for retirement benefits. This Court has never articulated such a rule and we discern no logical basis for adopting one. As a general rule, it is not arbitrary and capricious for the Board of Trustees to rely upon the Medical Board's recommendation of no causal connection though the Medical Board did not examine the pension fund member itself (see, Matter of Archul v. Board of Trustees, 60 N.Y.2d 567, 467 N.Y.S.2d 42, 454 N.E.2d 123, affg. for reasons stated 93 A.D.2d 716, 461 N.Y.S.2d 5; Matter of Fagan v. Board of Trustees, 185 A.D.2d 341, 586 N.Y.S.2d 631). Additionally, it is well settled that a nonexamining physician is competent to testify as a medical expert in a civil or criminal trial as to the cause of a particular medical condition based upon, for example, inspection of the patient's medical records or the expert's interpretation of diagnostic tools such as X rays and MRI films ...