Opinion
Index No. 513947/2021
08-12-2022
In the Matter of the Application of KEITH KAPLAN Petitioner, v. THE NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, THE BOARD OF TRUSTEES of the New York City Employees' Retirement System, THE MEDICAL BOARD of the New York City Employees Retirement System, and THE CITY OF NEW YORK, Respondents.
Unpublished Opinion
DECISION & ORDER
Francois A. Rivera, Judge
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of petition and verified petition, filed on June 9, 2021, under motion sequence one, petitioner Keith Kaplan seeks the following:
1. A judgment pursuant to CPLR Article 78:
A. Reviewing and annulling the action of respondents the New York City Employees' Retirement System, the Board of Trustees of The New York City Employees' Retirement System, the Medical Board of the New York City Employees Retirement System, and the City of New York (hereinafter respondents) denying petitioner, an Accidental Disability Retirement pursuant to New York Retirement and Social Security Law § 605-b, and declaring said action to be arbitrary, capricious, unreasonable, and unlawful; and
B. Directing and ordering respondents to retire petitioner with an Accidental Disability Retirement pension; or in the alternative
C. Directing and ordering respondents, by way of remand, to review petitioner's application for an Accidental Disability Retirement benefit.
-Notice of Petition
-Petition
-Exhibits A to K
-Petitioner's Memorandum of Law
-Respondents' answer
-Exhibit A to N
-Respondents' Memorandum of Law
-Memorandum of Law in Reply
BACKGROUND
On June 9, 2021, petitioner Keith Kaplan (hereinafter Kaplan or petitioner) commenced the instant CPLR Article 78 proceeding against respondents the New York City Employees' Retirement System (hereinafter NYCERS), the Board of Trustees of the New York City Employees' Retirement System (hereinafter the Board of Trustees), the Medical Board of the New York City Employees Retirement System (hereinafter the Medical Board), and the City of New York (hereinafter collectively as the NYCERS respondents), by electronically filing a notice of petition, verified petition, eleven annexed exhibits labeled A through K, (hereinafter the commencement papers) and a request for judicial intervention with the Kings County Clerk's office (hereinafter KCCO). On August 13, 2021, petitioner electronically filed a memorandum of law in support of his application.
On February 25, 2022, the NYCERS respondents filed their verified answer with fourteen annexed exhibits labeled A through N and a memorandum of law. Their verified answer contains ninety-four allegations of fact and eight affirmative defenses.
Kaplan's verified petition alleges the following salient facts. On April 17, 2000, Kaplan was appointed as a sanitation worker with the New York City Department of Sanitation. Prior to his appointment, he demonstrated the requisite psychological and physical fitness to fulfill his duties as a sanitation worker. Kaplan was considered a member of the Pension Fund and made all his required contributions pursuant to the New York City Administrative Code § 13-104.
On April 28, 2015, Kaplan suffered an injury to his left knee during the course of his employment at a garbage pick stop. Kaplan lifted refuse bags and stepped on a large rock which caused his left knee to give out. He was taken to emergency room and imaging was done. The petitioner contends that this injury did not prevent him from performing his job as a sanitation worker.
On October 1, 2015, Kaplan experienced some left knee pain that his treating orthopedic surgeon, Dr. Steven Small (hereinafter Dr. Small) attributed to gout based on his medical records. In an October 15, 2015, medical report, Dr. Small reviewed an MRI and diagnosed Kaplan with a lateral meniscus tear and recommended an arthroscopic debridement to help with the pain. On October 22, 2015, Kaplan underwent left knee arthroscopy.
Merriam Webster's dictionary defines Arthroscopy as a "a minimally invasive surgical procedure involving visual examination of the interior of a joint with an arthroscope to diagnose or treat various conditions or injuries of a joint and to repair or remove damaged or diseased tissue or bone." https://www.merriam-webster.com/dictionary/arthroscopy.
On November 30, 2015, Dr. Smalls cleared the petitioner to return to work. However, on the following day, Kaplan complained of continued problems in his left knee and requested an additional two weeks to be kept out of work and recuperate. Kaplan was later cleared to work as of December 21,2015.
The petition alleges that the injuries at issue occurred on January 6, 2016. Kaplan alleges that he was asked to operate a sweeper during his overtime shift. Prior to beginning his route, Kaplan observed that the right mirror was defective and broken. He reported the defect to his supervisors but was told to continue with his route using the mirror. Kaplan contends that the distortion of the mirror affected his ability to navigate. On January 6, 2016, Kaplan collided with a pillar while operating the sweeper (hereinafter the January 2016 incident). The impact of the collision caused him to hit a panel in the cab of the sweeper with his left knee. After this incident, Kaplan visited the emergency room two times complaining of knee pain. Kaplan was treated by Dr. Small between January and June of 2016. Dr. Small indicated that the petitioner's left knee was exacerbated by the accident. On October 27, 2016, petitioner underwent left knee replacement surgery.
On October 26, 2016, Kaplan filed an application for Accidental Disability Retirement (hereinafter ADR) pursuant to Retirement and Social Security Law § 605-b.
On May 16, 2017, the Medical Board reviewed the petitioner's application and recommended that it be denied. The Medical Board agreed that the petitioner was "disabled from performing the duties of a Sanitation Worker with the Department of Sanitation due to a left total knee replacement." However, after reviewing the petitioner's medical records including MRIs from 2015 and January 2016, the Medical Board did not find evidence of an acute injury that occurred as a result of the January 2016 incident.
On January 16, 2018, the Medical Board reevaluated the petitioner's application which included a report from Dr. Small dated November 24, 2017, wherein Dr. Small concluded the petitioner had lost 50% of the use of knee and noted that the incident of January 16, 2016 was the final straw which necessitated his knee replacement. The Medical Board concluded that the petitioner's condition was aggravated by pre-existing conditions including gout and osteoarthritis. The Medical Board reaffirmed their denial of Kaplan's application.
On May 31, 2018, the petitioner submitted a memorandum of law to the Board of Trustees and later presented his arguments on June 14, 2018. Kaplan contended that the Medical Board acted in an arbitrary and capricious manner in denying his application. Kaplan's memorandum of law stated that "the pre-existence of gout or osteoarthritis does not prevent an ADR award if the accident exacerbated the condition." Kaplan contended that the Medical Board failed to consider the Court of Appeals case of Tobin v Steisel (64 N.Y.2d 254 [1985]), which Kaplan argued stood for the proposition that an accident that aggravates an underlying or pre-existing condition is the cause for disability. On October 13, 2020, the Medical Board adhered to its prior determination.
On January 22, 2021, the petitioner submitted a letter to the Board of Trustees reiterating his position that the January 2016 incident was an accident that was the proximate cause of his disability. On February 16, 2021, NYCERS sent a letter denying the petitioner's application.
In the instant special proceeding, Kaplan seeks, among other things, to review and annul the determination by NYCERS, which denied him a pension of three quarters of his salary as required by the Retirement and Social Security Law § 605-b.
MOTION PAPERS
Petitioner's papers consist of a notice of petition, verified petition, eleven annexed exhibits labeled A through K, and a memorandum of law. Exhibit A is described as Line of Duty Injury Report. It consists of five pages. Exhibit B is described as Pre-Line Duty Injury Records. Exhibit C is described as Sanitation Progress Notes, with dates ranging from September 6, 2016, to September 24, 2011. Exhibit D is described as Post Line of Duty Injury Records. Exhibit E is described as Hospital Records. Exhibit F is a copy of a NYCERS Application for Disability Retirement, Tier 4 Members, dated October 26, 2016. Exhibit G is described as NYCERS Medical Board Reports. Exhibit H is a letter to the Board of Trustees dated May 31, 2018, from Seelig Law Offices, LLC, counsel for petitioner. It includes a memorandum of law titled, Member's Memorandum of Law. Exhibit I is a letter to the Ms. Karina Yu, Manager of the NYCERS Medical Unit dated August 28, 2018, from Seelig Law Offices, LLC, counsel for petitioner. Exhibit J is a letter to the Board of Trustees dated January 22, 2021, from Seelig Law Offices, LLC, counsel for petitioner. Exhibit K is a letter from NYCERS to Kaplan dated February 16, 2021.
The NYCERS respondents' answering papers consist of a verified answer, fourteen annexed exhibits labeled A through N, and a memorandum of law. Exhibit A is described as a Pension Membership Application. Exhibit B consist of a three-page, Line of Duty Injury Report. Exhibit C is a copy of a NYCERS Application for Disability Retirement, Tier 4 Members. It includes a date stamp of October 26, 2016, at 4:58 p.m. and is marked "Rec'd NYCERS Medical." Exhibit D is a letter from NYCERS to Kaplan dated October 18, 2016. Exhibit E is a copy of a Medical Board Report addressed to the Board of Trustees, dated May 16, 2017. Exhibit F is described as Medical Records. It contains 401 pages of documents. Exhibit G is a copy of a Medical Board Report addressed to the Board of Trustees, dated January 16, 2018. Exhibit H is a copy of the petitioner's memorandum of law before the Board of Trustees. Exhibit I is a copy of the NYCERS Board of Trustees minutes dated June 14, 2018. Exhibit J is described as the petitioner's letter to the Board of Trustees dated August 21, 2018. Exhibit K is a copy of a NYCERS Medical Board Report addressed to the Board of Trustees, dated October 13, 2020. Exhibit L is described as the petitioner's letter to the Board of Trustees dated January 22, 2021. Exhibit M is a copy of the Board of Trustees minutes dated February 11, 2021. Exhibit N is described as the Board of Trustees denial of the petitioner's application.
Kaplan's reply papers consist of a memorandum of law.
LAW AND APPLICATION
In the instant CPLR Article 78 proceeding, Kaplan seeks judicial review and annulment of the determination by NYCERS to deny him accidental disability benefits pursuant to Retirement and Social Security Law § 605-b.
An award of accidental disability retirement benefits to an applicant, such as Kaplan, involves a two-step process (Matter of Barenstein v New York City Employees' Retirement Sys., 88 N.Y.2d 756, 760 [1996], citing Administrative Code of City of N.Y. § 13-168[a]) The first step involves a fact finding by the Medical Board after completion of its own medical examination of the applicant and any evidence submitted in support of the claim (Matter of Barenstein, 88 N.Y.2d at 760, citing Administrative Code §§ 13- 123[a], 13-168[a]). The Medical Board must certify whether the applicant is physically or mentally incapacitated for the performance of city-service (Matter of Barenstein, 88 N.Y.2d at 760, quoting Administrative Code § 13-168[a] [internal quotation marks omitted]). Upon a finding that the applicant is disabled, the Medical Board must make a recommendation to the Board of Trustees as to whether the disability was "a natural and proximate result of an accidental injury received in such city-service" (id)
The second step of this process involves the Board of Trustees (Matter of Barenstein, 88 N.Y.2d at 760, citing Administrative Code §§ 13-103 [b]). The Board of Trustees is bound by the Medical Board's determination as to whether an applicant is disabled (Matter of Vargas v New York City Employees' Retirement Sys., 95 A.D.3d 1345, 1346 [2nd Dept 2012], citing Matter of Meyer v Board of Trustees of N.Y.City Fire Dept., Art. 1-B Pension Fund, 90 N.Y.2d 139, 144 [1997]). Nevertheless, where the Medical Board certifies that an applicant is disabled, the Board of Trustees must make its own evaluation as to the Medical Board's recommendation regarding causation (Matter of Vargas, 95 A.D.3d at 1346, quoting Matter of Barenstein, 88 N.Y.2d at 760).
Kaplan contends that the January 2016 incident, caused an aggravation of a preexisting condition which led him to have left knee replacement surgery. The petitioner contends that the conclusion by the Medical Board and Board of Trustees that the January 6, 2016, incident did not aggravate preexisting conditions in his left knee is arbitrary, capricious, and irrational.
Generally, in a proceeding pursuant to CPLR Article 78, judicial review of factual findings made by an administrative agency following an evidentiary hearing is limited to consideration of whether the findings are supported by substantial evidence (Sekul v City of Poughkeepsie, 195 A.D.3d 622, 624 [2nd Dept 2021], citing CPLR 7803 [4]; Matter of Haug v State Univ, of N.Y. at Potsdam, 32NY3d 1044, 1045 [2018]. Where substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently (Matter of Haug, 32 N.Y.3d at 1046). Moreover, the court must only ascertain whether there is a rational basis for the determination or whether it is arbitrary and capricious (Halloran v NYC Employees' Retirement Sys., 172 A.D.3d 715, 716-17 [2nd Dept 2019], citing Flacke v. Onondaga Landfill Sys., 69 N.Y.2d 355, 363 [1987]).
In an Article 78 proceeding challenging a disability determination, the applicant for accident disability retirement has the burden of establishing that the disability is causally connected to a line-of-duty accident (Halloran, 172 A.D.3d 715, 716 citing Matter of Doorley v Kelly, 106 A.D.3d554, 554 [1st Dept 2013]). In determining the question of causal connection, the test is the existence of some credible evidence to support the findings of the agency denying the application (Halloran, 172 A.D.3d at 716, citing Matter of Drayson v Board of Trustees of Police Pension Fund of City of N.Y., 37 A.D.2d 378, 380 [1st Dept 1971]). The agency's determination can be set aside upon judicial review only if it can be determined on the record as a matter of law that the disability was the natural and proximate result of a service-related accident (Halloran, 172 A.D.3d at 716, citing Retirement and Social Security Law § 605-b[b][l]). A line-of-duty accident is considered the natural and proximate cause of a petitioner's disability if the accident "either precipitated the development of a latent condition or aggravated a preexisting condition,... [w]here the medical evidence with respect to causation is equivocal, the burden has not been sustained" (Halloran, 172 A.D.3d at 716. quoting Matter of Kmiotek v Board of Trustees of N.Y. City Fire Dep., Art. I B Pension Fund, 232 A.D.2d 640, 641 [2nd Dept 1996]).
Accordingly, the Medical Board's determination regarding disability as well as the decision of the Board of Trustees as to the cause of an applicant's disability wilt not be disturbed unless its factual findings are not supported by substantial evidence or its final determination and ruling is arbitrary and capricious (Boyd v New York City Employees' Retirement Sys., 202 A.D.3d 1082, 1082-83 [2nd Dept 2022], citing Matter of Canfora v Board of Trustees of Police Pension Fund of Police Dept, of City of N. Y., Art. II, 60 N.Y.2d 347, 351; see also Bradley v New York City Employees' Retirement Sys., 193 A.D.3d 847 [2nd Dept 2021]). "Substantial evidence" in this context refers to "some credible evidence" (Boyd, 202 A.D.3d 1082, 1082-83 [2nd Dept 2022], citing Matter of Borenstein, 88 N.Y.2d at 760; see also Matter of Gibbs v New York City Employees' Retirement Sys., 161 A.D.3d 981 [2nd Dept 2018]). The Court of Appeals has described the substantial evidence standard as a minimal standard that is than a preponderance of the evidence (Matter of Haug, 32 N.Y.3d 1045, 1046, citing Matter of FMC Corp. v Unmack, 92 N.Y.2d 179, 188 [1998]; Matter of Kelly v DiNapoli, 30 N.Y.3d 674, 684 [2018]). Furthermore, substantial evidence demands only that a given inference is reasonable and plausible, not necessarily the most probable (Matter of Haug, 32 N.Y.3d at 1046, citing Matter of Ridge Rd. Fire Dist. v Schiano, 16 N.Y.3d 494, 499 [2011]).
Accordingly in reviewing a disability determination, the Court may not weigh the medical evidence or substitute its own judgment for that of the Medical Board (Giuliano v New York Fire Dept. Pension Fund, 185 A.D.3d 812, 814 [2nd Dept 2020], citing Matter of Santoro v Board of Trustees of N.Y.City Fire Dept. Art. 1-B Pension Fund, 217 A.D.2d 660, 660, [2nd Dept 1995]). Even a conflict in the medical opinions of physicians does not provide a basis to set aside the Medical Board's determinations (Bradley, 193 A.D.3d at 847). The resolution of any conflicts in medical evidence are within the sole province of the Medical Board (id).
Here, the burden is upon Kaplan to establish that his injuries were the result of the incident on January 6, 2016 (see Halloran, 172 A.D.3d at 715-16/ In May 2016, the Medical Board, after consideration of clinical and documentary evidence, found that Kaplan was disabled from performing the full duties of a sanitation worker with the Department of Sanitation due to a left total knee replacement. However, the Medical Board found that the January 2016 incident, was not the cause of the petitioner's disability. The Medical Board noted the following regarding causation:
"Keith Kaplan did not have a dormant condition of the left knee, which included a meniscal tear in the past as well as gout that required arthroscopy, multiple drainage of the knee effusions respectively, and he had just returned to work between two and three weeks prior to the incident of January 7,2016. We note that an MR1 performed in January 2016 and compared to an MR1 prior to the incident on October 12, 2015, not to show any significant change. There was no evidence of new acute injury. We do not find that the incident of January 7, 2016, was
a competent casual factor of his disability. We note that he had arthritic disease and cystic changes on his MRI that preexisted the incident."
The Medical Board determined that the petitioner's disabling condition was not caused by a line of duty left knee injury sustained on January 2016 incident and recommended the denial of the petitioner's accidental benefit application. The Medical Board noted that Kaplan had a history of arthritic disease, a meniscal tear and gout that required arthroscopy and multiple drainage of the knee effusions. Kaplan had only returned to work two to three weeks prior to the January 2016 incident having been on employment leave dealing with ongoing medical issues with his left knee. Furthermore, the Medical Board noted that MRI scans of Kaplan's knee in 2015 when compared to scans in January 2016 did not demonstrate an acute injury nor any significant changes.
Upon the petitioner's appeal of the May 2016's recommendation, the Medical Board reevaluated the petitioner's application which included additional documentation, among other things, including a report by Dr. Steven Small, the petitioner's orthopedic surgeon. The Medical Board noted that Dr. Small "believes what necessitated Keith Kaplan to undergo knee replacement was the accident of January 2016 without supporting evidence." As stated earlier, the Medical Board has the sole province to resolve any conflicts in medical evidence or opinion (see Bradley, 193 A.D.3d at 847). Accordingly, the Medical Board was privileged to disregard Dr. Small's opinion in favor of its own medical assessments and adhere to its prior determinations in 2016 that "gout and osteoarthritis ultimately" resulted in the petitioner's knee replacement (id.). Similarly, in its October 13, 2020, report the Medical Board reviewed Kaplan's medical records, supporting documentation and interviewed the petitioner. The Medical Board recommended the denial of Kaplan's application and cited its prior reasoning regarding prior history of left knee complications.
The reports of the Medical Board between 2016 and 2020, among other things, demonstrate that Kaplan was interviewed, afforded the opportunity to present evidence including a memorandum of law to the Board of Trustees and that based upon this process the resulting Medical Board determinations were based on substantial evidence and therefore not irrational, arbitrary or capricious.
Therefore, the NYCERS respondents' determination to deny the petitioner accident disability retirement benefits pursuant to Retirement and Social Security Law § 605-b based upon the credible evidence of the Medical Board was neither irrational nor arbitrary or capricious (see Matter of Imbriale v Bd. of Trustees of New York City Employees' Retirement Sys.. 29 A.D.3d 995, 995-96 [2nd Dept 2006]).
CONCLUSION
The petition of Keith Kaplan for judgment pursuant to CPLR Article 78 to review and annul the action of respondents the New York City Employees' Retirement System, the Board of Trustees of The New York City Employees' Retirement System, the Medical Board of the New York City Employees Retirement System, and the City of New York denying petitioner, an Accidental Disability Retirement pursuant to New York Retirement and Social Security Law § 605-b, and declaring said action to be arbitrary, capricious, unreasonable, and unlawful is denied.
The petition of Keith Kaplan for judgment pursuant to CPLR Article 78 directing and ordering respondents the New York City Employees' Retirement System, the Board of Trustees of The New York City Employees' Retirement System, the Medical Board of the New York City Employees Retirement System, and the City of New York to retire petitioner with an Accidental Disability Retirement pension is denied.
The petition of Keith Kaplan for judgment pursuant to CPLR Article 78 directing and ordering respondents the New York City Employees' Retirement System, the Board of Trustees of The New York City Employees' Retirement System, the Medical Board of the New York City Employees Retirement System, and the City of New York, by way of remand, to review petitioner's application for an Accidental Disability Retirement benefit is denied and the petition is dismissed.