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IN RE: the Application of Haitham NOUFAL, Petitioner, for a Judgment under Article 78 of the Civil Practice Law and Rules, v. The NEW YORK CITY EMPLOYEES’ RETIREMENT SYSTEM, Respondent.
The following e-filed documents, listed by NYSCEF document number (Motion 2) 1-12, 20-56, and 59 were read on this motion seeking a judgment pursuant to Article 78 of the CPLR.
Petitioner, Haitham Noufal, has commenced this proceeding pursuant to Article 78 of the CPLR seeking the following relief: (1) reviewing and annulling the action of the respondent, The New York City Employees’ Retirement System (hereinafter NYCERS), in denying the petitioner Disability Retirement pursuant to Retirement and Social Security Law § 605; and (2) directing and ordering the respondent to retire the petitioner with a Disability Retirement allowance under Retirement and Social Security Law § 605; or in the alternative (3) remanding the matter to the respondents for an appropriate review. The petitioner also seeks an order, pursuant to CPLR § 2307, directing the respondent to serve all reports, recommendations certificates and all other documents submitted to NYCERS in connection with his disability retirement application; copies of the minutes of each meeting of the Board of Trustees concerning the petitioner's retirement application; and copies of all medical records, reports or notes relating to petitioner's line-of-duty injuries which are on file with NYCERS.
The petitioner was appointed as a traffic enforcement agent with the New York City Police Department on September 27, 2012. During his employment, the petitioner was a member of the NYCERS Pension Fund. On December 14, 2012, the petitioner suffered a line-of-duty injury when he was bitten on the left leg by an unleashed pit bull while on summons issuance patrol. The petitioner sustained puncture wounds to his left calf. Thereafter, on March 19, 2015, the petitioner was in the process of issuing a summons to a motorist, when the operator of the vehicle reversed the vehicle and struck the petitioner, knocking him to the ground.
On March 16, 2017, the petitioner filed an application for Disability Retirement, pursuant to New York State Retirement and Social Security Law § 605, based on his line-of-duty injuries to his left knee, left ankle, left arm, lower back, neck and head, as well as psychological complaints. The NYCERS Medical Board, consisting of three physicians, was provided with medical documentation of the petitioner's physical injuries relating to the incident, including hospital records, independent medical examinations (IMEs) in connection with his Workers’ Compensation claims, and the reports of his treating physicians and mental health experts.
On June 29, 2017, the petitioner underwent an IME by Dr. Solomon Miskin, a board certified psychiatrist, in connection with the Workers’ Compensation case arising from the March 19, 2015 incident. Dr. Miskin diagnosed the petitioner with post-traumatic stress disorder finding that the petitioner had a partial psychiatric disability. As noted in Dr. Miskin's report, the petitioner had been awarded Social Security Disability benefits related to his orthopedic and psychiatric injuries.
On July 17, 2017, the Medical Board reviewed the medical records submitted by the petitioner in support of his application, and conducted an interview and physical examination of the petitioner. All physical findings are set forth in the Medical Board's 15-page report of July 17, 2017. The Medical Board found inconsistencies between its physical findings and those of the petitioner's physicians, who concluded that the petitioner had functional range of motion in both shoulders and knees. In its report, the Medical Board noted that the MRI findings “did not show enough objective pathology to warrant profound loss of motion and weakness exhibited on today's exam.” The Medical Board also found that the petitioner “has submitted no formal testing to substantiate the claim of neurocognitive deficits․” It concluded that based on the examination of the petitioner “there is high suspicion for symptom magnification and malingering vs. psychosomatic component to his lack of effort.” Based on these findings, the Medical Board elected to defer its recommendation pending psychiatric evaluation.
On October 22, 2017, the petitioner was evaluated by Dr. James Lynch, a psychiatrist, who also deferred making his own recommendation to the Medical Board pending additional testing of the petitioner. On November 28, 2017, Lauren Caruso, Ph.D., a neuropsychologist, conducted neuropsychological testing of the petitioner and concluded that “there was extreme symptom exaggeration in his testing and considerable distortion in clinical representations and variability in psychiatric impressions.” Dr. Caruso diagnosed the petitioner with malingering, major depressive disorder and anxiety disorder. Upon consideration of Dr. Caruso's findings, Dr. Lynch issued a report to the Medical Board, dated January 30, 2018, stating that it was his opinion that the petitioner had signs and symptoms of anxiety disorder, and that he should be declared eligible for disability pension based on this condition. Dr. Lynch opined that there was no evidence of causation between his anxiety disorder and the injuries he sustained in the line-of-duty accidents. Therefore, Dr. Lynch recommended that the petitioner's application should be granted for ordinary disability pension, but not for accident disability.
After having reviewed the reports of Drs. Lynch and Caruso, on February 15, 2018, the Medical Board issued a recommendation to the Board of Trustees that the petitioner was disabled from performing the duties as a traffic enforcement agent due to anxiety disorder, and that there was no connection between the line-of-duty accidents of December 4, 2012 and March 19, 2015 and the petitioner's disability. The Medical Board recommended that the petitioner's application for Disability Retirement because of an accident be denied.
Thereafter, the petitioner continued to submit additional medical evidence for consideration by the Medical Board, including medical records and reports from May 9, 2016 through May 10, 2018. On July 30, 2018 the Medical Board reconvened for the third time to consider the psychiatric reports of Dr. Joel H. King, who had evaluated the petitioner and opined that he was permanently disabled as a result of post-traumatic stress disorder, which was causally related to his line-of-duty accident of March 15, 2015. The Medical Board found that the reports did not adequately explain Dr. King's assessment on causality, and significantly, that the records neither identified nor described a specific workplace accident. The Medical Board reaffirmed its February 15, 2018 recommendation to the Board of Trustees to deny the petitioner's application.
The petitioner then submitted to the Medical Board the report of Dr. Miskin, who evaluated the petitioner on October 17, 2018 in connection with his Workers’ Compensation case. Dr. Miskin again opined that the petitioner was permanently disabled as a result of post-traumatic stress disorder caused by his line-of-duty accident of March 15, 2015. The petitioner also submitted the reports of the petitioner's nurse practitioner, Ashley King, who specializes in psychiatry. In its final report of April 4, 2019, the Medical Board deferred a final determination of the case pending an evaluation by Dr. Lynch of the newly submitted reports of Drs. King and Miskin, and nurse practitioner Ashley King Curtis. Dr. Lynch conducted a further review of the reports, as well as the records from St. Luke's Hospital concerning the care and treatment rendered to the petitioner arising from the March 2015 incident.
On April 29, 2019, the Medical Board reconvened to consider the updated evaluation report of Dr. Lynch. Dr. Lynch opined that based on his review of the records the petitioner did not have any evidence of an acute neurological injury, and that the petitioner continued to be disabled on a permanent basis due to anxiety. He further opined that the petitioner's symptom presentation suggested “malingering with exaggerated magnification of symptoms,” as well as “fabrication of symptoms.” In its April 29th report, the Medical Board referenced the minutes of the meetings of July 17, 2017, February 15, 2018 and July 30, 2018 for complete documentation as to the evidence submitted and the prior findings of the Medical Board. The Medical Board concluded that although the petitioner was disabled by anxiety, he had failed to demonstrate that the disability was the “natural and proximate result” of the line-of-duty incidents, and recommended that the Board of Trustees deny the petitioner's application for Disability Retirement benefits. The Board of Trustees adopted the Medical Board's recommendation, and issued a Final Determination on September 24, 2019 denying the petitioner's application. The petitioner now challenges the determination of the Board of Trustees denying the petitioner's request for Disability Retirement.
The petitioner argues that the Medical Board's determination was “arbitrary, capricious, and unreasonable,” and not based on “credible evidence” that he sustained physical injuries. He asserts that Dr. Lynch and Dr. Caruso are mental health professionals who did not conduct a physical examination of the petitioner or review the medical reports concerning the petitioner's alleged injuries to his right shoulder, knee, and cervical and lumbar spine.
The respondent opposes the petition, asserting that the determination was based on “some credible evidence” that consisted of a physical examination of the petitioner by the Medical Board and four thorough reviews of medical evidence submitted by the petitioner in support of his Disability Retirement application. Respondent also argues that the credible evidence standard was met because the Medical Board consulted with Drs. Lynch and Caruso, who conducted examinations of the petitioner and reviewed the medical evidence.
Article 14 Section 605 (b)(1) of the New York Retirement and Social Security Law (hereinafter RSSL), sets forth the criteria for members of NYCERS to qualify for Disability Retirement, requiring that the member have “at least ten years of total service credit” in order to apply for Disability Retirement allowance. Section 605(b)(3) of RSSL states that if a member with less than ten years of total service credit is disabled as a result of certain line-of-duty accidents the member is required to demonstrate that the physical or mental incapacity was the “natural and proximate result of an accident” in order to qualify for Disability Retirement.
An applicant seeking disability retirement has the burden of establishing that the disability is causally related to a line-of-duty accident. See Halloran v. NYC Employees’ Retirement Sys.,172 AD3d 715 (2d Dept 2019). In determining whether there is a causal connection, a court must first determine whether some credible evidence exists to support the findings of the agency denying the application. Id. If there was any credible evidence of lack of causation the Board of Trustees’ determination must stand. See Giuliano v New York Fire Dept. Pension Fund, 185 AD3d 812 (2d Dept 2020). Credible evidence consists of evidence “from a credible source and reasonably tends to support the proposition for which it is offered.” Id. at 814.
Moreover, a line-of-duty accident is considered the proximate cause of a disability if the accident “either precipitated the development of a latent condition or aggravated a preexisting condition Where the medical evidence with respect to causation is equivocal, the burden has not been sustained.” See Matter of Kmiotek v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 232 AD2d 640, 640-641 (2d Dept 1996); see also Halloran, 172 AD3d at 716. “[T]he courts cannot weigh the medical evidence or substitute their own judgment for that of the Medical Board.” See Giuliano, 185 AD3d at 814, quoting Matter of Santoro v Board of Trustees of NY City Fire Dept. Art. 1-B Pension Fund, 217 AD2d 660, 660 (2d Dept 1995) (internal quotation marks omitted).
Where there is conflicting medical evidence and medical reports presented to the Medical Board, it is solely within its province to resolve such conflicts. Matter of Kuczinski v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 8 AD3d 283 (2d Dept 2004); see also Matter of Borenstein v New York City Employees’ Retirement Sys., 88 NY2d 756 (1996); Matter of Zamelsky v New York City Employees’ Retirement Sys., 55 AD3d 844 (2d Dept 2008).
Based upon the record, in reaching its determination the Board of Trustees considered all of the medical evidence submitted by the petitioner concerning the petitioner's medical condition, which included right knee internal derangement, and strains and sprains of the cervical and lumbar spine and right shoulder. It also considered the Medical Board's own physical examination of the petitioner, which revealed significant physical limitations in range of motion and disparities between its findings and those of previous examinations by the petitioner's medical providers. Additionally, the Board of Trustees considered the reports of Drs. King and Miskin and nurse practitioner Ashley King Curtis, which were submitted by the petitioner concerning his psychiatric claims. The reports of the Medical Board's psychiatric experts, Drs. Lynch and Caruso, were also reviewed. The Medical Board reviewed the petitioner's case four times before making its recommendation to the Board of Trustees that petitioner's application for Disability Retirement benefits should be denied.
Moreover, although the medical and psychiatric reports considered by the Medical Board conflicted with one another, the Board of Trustees adopted the recommendation of the Medical Board that the petitioner had failed to demonstrate that the disability was the “natural and proximate result” of the line-of-duty incidents. Significantly, after the Medical Board reached its initial determination denying the petitioner disability benefits in February of 2018, it permitted the petitioner to continue to submit medical evidence in support of his application through April of 2019, and convened three times after its initial determination to consider the submissions.
The Board of Trustees was entitled to resolve the conflicting medical and psychiatric evidence in reaching its determination, and the minutes of September 24, 2019 reveal that the Board carefully considered all of the evidence in concluding that the petitioner had not established that the disability was proximately caused by the accident. See Halloran, 172 AD3d 715. “[W]here, as here, the judgment of the agency involves factual evaluations in the area of the agency's expertise and is supported by the record, such judgment must be accorded great weight and judicial deference.” Id. at 717, quoting Flacke v Onondaga Landfill Sys., 69 NY2d 355, 355-356 (1987). As such, the determination of the Board of Trustees denying the petitioner's application for Disability Retirement was based on credible evidence, and the petitioner has failed to establish a causal relationship between his disability and the accidents. Therefore, the respondent's decision is upheld, and the petition is dismissed.
That branch of the petition seeking, inter alia, certain records, reports, recommendations and minutes of each Board of Trustees meeting in connection with the petitioner's Disability Retirement application is denied as moot. The respondent has complied with its obligation under CPLR § 7804(e), and filed with the Court the entire administrative record considered by the agency, Medical Board and Board of Trustees in rendering its decision, which is attached to the respondent's submissions as Exhibits 1 through 38.
The remaining contentions are without merit.
Accordingly, it is hereby
ORDERED, that the petition for relief, pursuant to CPLR Article 78, of petitioner Haitham Noufal (motion sequence number 02) is denied in its entirety and this proceeding is dismissed.
This constitutes the decision and order of the Court.
Lillian Wan, J.
Response sent, thank you
Docket No: 501170/2020
Decided: March 05, 2021
Court: Supreme Court, Kings County, New York.
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