| Matter of Maldonado v Kelly |
| 2011 NY Slip Op 06083 [86 AD3d 516] |
| July 28, 2011 |
| Appellate Division, First Department |
| In the Matter of Eddie Maldonado, Appellant, v RaymondKelly, as Police Commissioner of the City of New York and as Chairman of the Board ofTrustees of the Police Penson Fund, Article II, et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Karen J. Seemen of counsel), forrespondents.
Order and judgment (one paper), Supreme Court, New York County (Michael D. Stallman,J.), entered January 5, 2010, which denied the petition seeking, inter alia, to annul respondents'determination denying petitioner's application for accident disability retirement benefits, anddismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, withoutcosts.
Petitioner, a police officer, was assigned to the World Trade Center site shortly afterSeptember 11, 2001. In connection with the recovery effort, he performed security duties,escorted electrical engineers and food trucks, and distributed supplies. In late summer 2001, butbefore September 11, petitioner noticed a pulling sensation in his left thigh. Shortly after theterrorist attack, he felt a walnut-sized lump in the same area. In November 2001, a biopsy wasperformed on the lump, revealing it to be a high-grade, soft-tissue sarcoma, which is a malignanttumor arising in connective tissue. On February 12, 2002, petitioner underwent a surgicalprocedure to remove the sarcoma, which included removal of most of the muscles from hisanterior thigh. After the surgery, petitioner began receiving chemotherapy. The sarcoma in hisleft thigh then metastasized to his sacrum, lumbosacral spine, and other bones.
On December 15, 2006, petitioner filed an application for accident disability retirement(ADR) pension benefits with the Police Pension Fund. He stated in the application that he wasdisabled from performing police duties due to cancer and related conditions that developed as aresult of his working at the World Trade Center site. The Police Commissioner issued an orderdirecting the Medical Board to examine petitioner and his medical record to determine whetherthe disability was obtained in the line of duty, which would entitle petitioner to an ADR pension;if not, he would be retired on ordinary disability retirement (ODR).[FN1]
On April 18, 2007, the Police Pension Fund Medical Board evaluated petitioner's [*2]application. As reflected in its minutes, the Medical Boardexamined the medical evidence, provided a brief summary of the history and findings therein,interviewed and examined petitioner, gathered additional history of his complaints, and notedvarious medical findings. The Medical Board acknowledged that petitioner was disabled fromperforming police duties due to the diagnosis of cancerous sarcoma. However, in paragraph 54 ofthe minutes, the Board concluded that "the proximity of the diagnosis of the disease to theSeptember 11, 2001 World Trade Center exposure is competent evidence that the exposure wasnot the etiology of the sarcoma." Accordingly, the Board recommended ODR.
On October 9, 2007, petitioner's physician, who had been treating him since 2003, sent aletter to the Police Department in response to the Board's findings. The letter stated, in itsentirety, "With regard to [paragraph] 54 of the [minutes]: While the proximity of the diagnosis ofsoft tissue sarcoma to the September 11, 2001 World Trade Center exposure suggests that theexposure not to be [sic] the etiology of the sarcoma, it does not rule out the possibility theexposure at the World Trade Center may have stimulated factors such as angiogenesis factorswhich may have accelerated the metastatic potential of the sarcoma. [Petitioner] did developmetastatic disease to the bone and lungs soon after the initial diagnosis."
In January 2008, the Medical Board reconsidered the application, taking into considerationthe letter and another interview of petitioner. The Board was not persuaded by the letter andreaffirmed its decision. In May 2008, at petitioner's request, the Pension Fund Board of Trusteesremanded the case to the Medical Board for further evaluation of the application andreexamination of petitioner, and for new evidence to be submitted.
In September 2008, plaintiff's physician sent another letter to the Medical Board, in which hestated, "As I had stated in my letter from 10/9/07, it is scientifically difficult to ascribe theetiology of this rare tumor (liposarcoma) to any specific environmental exposure, such as theWorld Trade Center disaster, but the rapid growth of the tumor is remarkable and suggests thatthis is not an indolent slow-growing tumor which may have started many months prior to thediagnosis."
On September 17, 2008, petitioner's case was again considered by the Medical Board. Inadhering to its decision to grant petitioner only an ODR retirement, the Medical Board noted thatpetitioner's physician could only "speculate that the exposure may have accelerated thegrowth of the preexisting tumor." On March 11, 2009, the Board of Trustees, by a six-to-six vote,determined that petitioner's World Trade Center exposure was not the etiology of his condition,and it denied his application for ADR.[FN2][*3]
Petitioner filed this article 78 petition, alleging thatrespondents' denial of his application for ADR was "arbitrary, capricious, unreasonable andunlawful." The petition sought the annulment of respondents' determination and an orderdirecting respondents to award him an ADR pension. Petitioner invoked the World Trade Centerpresumption, codified at Administrative Code of the City of New York § 13-252.1, entitled"Accidental disability retirement; World Trade Center presumption" which provides: "1. (a)Notwithstanding any provisions of this code or of any general, special or local law, charter orrule or regulation to the contrary, if any condition or impairment of health is caused by aqualifying World Trade Center condition as defined in section two of the retirement and socialsecurity law, it shall be presumptive evidence that it was incurred in the performance anddischarge of duty and the natural and proximate result of an accident not caused by suchmember's own willful negligence, unless the contrary be proved by competent evidence."
The court denied the petition and dismissed the proceeding, finding that petitioner had notmet his burden of demonstrating that the Board of Trustees' pension determination was arbitraryand capricious or contrary to law. The court held that, based on the Medical Board's repeatedconsideration of the medical examinations, interviews and tests, including those performed bypetitioner's physicians, the Board of Trustees had a rational basis for its determination that theWorld Trade Center presumption of causation had been overcome and that petitioner's WorldTrade Center work did not cause or exacerbate his cancer or its metastasis. Noting that the onsetof petitioner's symptoms and the size and advanced state of the cancer appeared in close temporalproximity to September 11, 2001, the court found that petitioner's physician's speculation thatpetitioner's World Trade Center work could have caused or exacerbated his condition wasproperly rejected by respondents.
Disability retirement applications by police officers invoking World Trade Center-relatedinjuries differ from usual applications insofar as the burden of proof is shifted to the policedepartment respondents. So long as the petitioner can establish that he or she worked therequisite number of hours at the site and was diagnosed with one of the enumerated medicalconditions, the respondents bear the ultimate burden of establishing that a qualifying injury wasnot incurred in the line of duty (see Administrative Code § 13-252.1 [1][a]). However, a determination by the Board of Trustees that the Medical Board properly found alack of causation is entitled to the deference ordinarily due an agency determination in an article78 proceeding. In other words, so long as the determination is rationally based, is not arbitrary,capricious, an abuse of discretion or contrary to law, a reviewing court is obliged to affirm it (Matter of Jefferson v Kelly, 51 AD3d536 [2008]). The existence of "credible evidence" supporting the Medical Board's decision isa sufficient basis for a reviewing court to determine that the Board of Trustees correctly foundthat the Medical Board rebutted the World Trade Center presumption (see Matter of Claudio v Kelly, 84AD3d 667 [2011]; Matter of Kellyv Kelly, 82 AD3d 544 [2011]).
In this proceeding, respondents do not dispute that petitioner worked the minimum [*4]number of hours required for the World Trade Center presumptionto attach, or that his condition is one of the qualifying injuries enumerated in the Retirement andSocial Security Law. Furthermore, there is no dispute, as petitioner has effectively conceded, thatthere is no causal link between the initial onset of petitioner's cancer and the conditions at theWorld Trade Center site on and after September 11, 2001. Rather, it is petitioner's position thathis work at the World Trade Center site aggravated his cancer. However, in attempting to supportthis theory before the Medical Board, petitioner offered only his own treating physician's letters,which acknowledged that there was no proof that the World Trade Center site environmentcaused petitioner's cancer, and only speculated that the cancer spread rapidly because of thatenvironment. Indeed, the doctor's comment in his September 2008 letter to the Medical Boardthat "rapid growth of the tumor is remarkable and suggests that this is not an indolentslow-growing tumor" is not supported by any medical evidence. Nor did petitioner's doctor evenstate that, in his medical opinion, it was more likely than not that the rapid growth of the tumorwas related to petitioner's work at the World Trade Center site.
The 2008 letter from petitioner's doctor did not buttress his letter of October 2007, whichwas suffused with equivocal language. In that letter he stated that petitioner's "exposure. . . does not rule out the possibility the exposure at the World Trade Centermay have stimulated factors such as angiogenesis factors which may haveaccelerated the metastatic potential of the sarcoma" (emphasis added). Together, these twoletters cannot be viewed as anything but bare conjecture. The existence of evidence so equivocallends credence to the Board of Trustees' determination that the presumption was rebutted (seeMatter of Callaghan v Bratton, 253 AD2d 390 [1998]). Further, the Medical Board was notrequired to identify the actual cause of the rapid metastasis; it was sufficient for it to demonstratethat nothing in the record constituted evidence of causation (see Matter of Stegmuller vBrown, 216 AD2d 23 [1995], lv denied 87 NY2d 807 [1996]). Thus, we find thatcredible evidence supports the Medical Board's determination, adopted by the Board of Trustees,that the aggravation of petitioner's cancer was not caused by the World Trade Center siteconditions.
This decision should not be viewed as a diluting of the World Trade Center presumption,which was enacted in recognition of the enormous sacrifice made by those public employees whoassisted in the recovery from the World Trade Center attacks. Rather, it reflects the unique factsof this case, where not even petitioner's own physician could offer more than a wholly equivocal,speculative opinion on causation. Accordingly, the court properly found that respondentsrebutted the World Trade Center presumption. Concur—Tom, J.P., Mazzarelli, Acosta,Renwick and Freedman, JJ.
Footnote 1: A World Trade Center ADRpension provides a recipient with a three-quarters final salary tax-free pension, while an ODRpension provides a recipient with a one-half pay taxable pension.
Footnote 2: It is "a time-honored proceduralpractice" that, where the Board of Trustees is deadlocked, the applicant is denied ADR andgranted ODR (Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B PensionFund, 90 NY2d 139, 144-145 [1997]).