Jackson v. The N.Y.C. Emps' Ret. Sys.

1

2023 NY Slip Op 33075(U)

In the Matter of the Application of Dennis Jackson, PETITIONER,

For a judgment under Article 78 of the Civil Practice Law and Rules, v. The New York City Employees' Retirement System, RESPONDENT.

Index No. 509505/2020, Motion Sequence No. 1

Supreme Court, Kings County

September 6, 2023

Unpublished Opinion

Calendar No. 13

DECISION AND ORDER

HON PATRIA FRIAS-COLON, J.S.C.

Recitation as required by CPLR §§ 2219 of Papers consider on Review of Motion: Papers NYSCEF Document #s:

Petitioner's Article 78, Exhibits, Memorandum of Law and Appendix.................1-29, 35-38

Respondent's Answer, Exhibits and Memorandum of Law in Opposition............44-61

Petitioner's Reply Memorandum and Appendix..........................................62-63

Upon the foregoing cited papers and after oral argument on March 8, 2023, the Decision and Order on Petitioner's Article 78 (CPLR § 7804[a]), is as follows:

Petitioner was employed by the New York City Department of Sanitation ("DSNY") until he was separated medically from his position pursuant to Civil Service Law § 73. Petitioner had his Uniformed Sanitation three quarter Accidental Disability Retirement ("ADR") application denied by Respondent New York City Employees' Retirement System ("NYCERS"). Petitioner now seeks annulment of Respondent's denial and declaration that it was arbitrary, capricious, unreasonable, and unlawful. Petitioner wants Respondent to allow him an ADR pension retroactive to his last day on the New York City payroll. In the alternative, Petitioner requests the matter be remanded to Respondent for an appropriate review by a newly composed NYCERS Medical Review Board ("the Medical Board"). In addition, Petitioner seeks, pursuant to CPLR § 2307(a), an Order requiring Respondent to provide all documentation, including the minutes of Medical Board and NYCERS Board of Trustees' ("Board of Trustees") meetings.

For the following reasons, the petition is GRANTED to the extent of annulling the determination of the NYCERS Board of Trustees that denied Petitioner's ADR benefits and remanding the matter for further consideration of proffered medical evidence. The branch of the petition seeking the award of the ADR pension or review by a "newly composed" Medical Review Board, and all other requested relief is DENIED without prejudice.

By verified petition filed on June 8, 2020, Petitioner sought relief from Respondent's denial of his pension application. Petitioner was appointed a sanitation worker with DSNY in July 2000 and enrolled in NYCERS the same year. See NYSCEF Doc. # 1 at paragraphs 3-4; NYSCEF Doc. # 44 at paragraph 12. On or about March 29, 2017, Petitioner sustained line of duty injuries after being assaulted with brass knuckles while collecting garbage, requiring him to be transported by ambulance to Jamaica Hospital. See Doc. # 1 at paras 6-15; Doc # 44 at para 13. The medical records indicate he suffered abrasions to his scalp, ear and face as well as a sustained a shoulder strain. See Doc. # 1 at 11-12. Petitioner was released the next day after having received CT scans, x-rays, a tetanus shot and pain medication. See id.

After the assault, Petitioner received additional diagnosis and treatment for his shoulder, received psychotherapy and medication for emotional trauma. See id. at 16-17. One doctor diagnosed Petitioner as having suffered head trauma, concussion, post-concussion syndrome with cognitive dysfunction, cervical spine derangement and myelopathy thoracic spine sprain and strain, lumbosacral spine derangement with myofascitis, lumbar radiculopathy, shoulder derangement with tendinitis anxiety, depression, and posttraumatic stress disorder. See id. at 17. The doctor prescribed ibuprofen, flexeril, cervical traction for home use, lumbar support, and recommended additional testing and physical therapy. See id. A brain MRI showed abnormalities including a right-sided hemispheric infarct. See id. at 19. In the subsequent months, Petitioner had additional psychological testing where he was diagnosed with levels of psychological distress. See id. at 20-27. Petitioner also underwent additional diagnosis and testing of his right shoulder, followed by arthroscopic surgery. See id. at 28-29.

In a November 2, 2017 letter, Petitioner was notified by the Case Management Unit of the DSNY Medical Division that the DSNY Medical Review Board was going to submit applications on his behalf for Accident (RSSL^[1] § 605-b)/Ordinary (RSSL § 605) Disability. See id. at 33. On or about November 9, 2017, Petitioner submitted to NYCERS a Uniformed Sanitation Three Quarter Accidental Disability pension application pursuant to RSSL § 605-b. See id. at 34; Doc # 44 at para 14. His ADR application was supplemented several days later by a NYCERS' Physician's Report of Disability prepared by Petitioner's psychiatrist. See Doc. # 1 at 35.

On or about March 22, 2018, Petitioner submitted to a NYCERS Independent Medical Examination ("IME") where he was examined by psychiatrist Dr. Bruce H. David who wrote a report and concluded that Petitioner was "psychiatrically disabled from performing his former duties as a Sanitation Worker due to Post-Traumatic Stress Disorder ("PTSD"), which was caused by the [assault]. [but] he has a reasonable expectation of recovery within a year with continued treatment, which could be enhanced by an increase in his dose of Zoloft^[2]...." See id. at 38; Doc # 54 at pages 6, 9. On June 11, 2018 Petitioner was interviewed and examined by the Medical Board which also reviewed records, including reports by two of Petitioner's psychiatrists and his social worker, an MRI of Petitioner's brain and shoulder, and a report by his orthopedic surgeon. See id. at 23, 39; NYSCEF Doc. # 44 at 17-18.

The Medical Board deferred Petitioner's disability application, finding that Petitioner "has not reached maximum medical improvement and there is a good chance he may further improve within a year's time. The Medical Board elects to defer its recommendation in order for Dennis Jackson to completely recover from recent right shoulder surgery." See NYSCEF Doc. # 1 at 39.

On or about November 15, 2018, Petitioner was re-interviewed and re-examined by the Medical Board, which also reviewed additional reports from his social worker and orthopedic surgeon. See id. at 40; NYSCEF Doc. # 44 at 23. After examining Petitioner, the Medical Board denied his application, concluding there was no asymmetry between the right and left shoulders and that "documentary and clinical evidence fail to substantiate that Dennis Jackson is disabled from performing the duties of Sanitation Worker.. ..The Medical Board notes significant discrepancies in the range of motion of the right shoulder between the exam today [95 degrees].and that reported from [Petitioner's orthopedic surgeon] in August [140 degrees].." See NYSCEF Doc. # 1 at 40; Doc. # 44 at 26; Doc # 61 at 12.

By letters dated November 27, 2018 and February 1, 2019, Petitioner was informed of the Medical Board's denial of his application for disability retirement. See NYSCEF Doc. # 44 at 27. In a January 11, 2019 letter, Petitioner was notified of his termination from DSNY because of his absence from work and inability to perform his duties for more than one year. See NYSCEF Doc. # 1 at 41.

In a letter dated February 22, 2019, Petitioner's attorney requested that the Medical Board reconsider its denial because it did not reference Petitioner's psychological trauma nor considered updated medical records from Petitioner's treating psychiatrist and therapist. See id. at 42-43 NYSCEF Doc. # 44 at 29. The NYCERS Board of Trustees subsequently referred Petitioner's application back to the Medical Board for reconsideration given said additional information. See NYSCEF Doc. # 44 at 28, 30-31. As a result, NYCERS Medical Board re-interviewed Petitioner in the presence of his attorney and a NYCERS employee. See id. at 34. Around May of 2019, Petitioner again submitted for an IME evaluation by psychiatrist Dr. David who reported that:

"[i]nconsistencies in [Petitioner's] treatment record are concerning and do not support significant psychiatric impairment. His treatment providers made no changes to his medications over the past year and continue to prescribe sub-optimal dosing..Also, recommended Prolonged Exposure Therapy has not been provided..[Petitioner] doesn't describe severe anxiety or depression..[H]is presentation today was consistent with someone attempting to exaggerate his distress....[Significant cognitive impairment, as reported by his treatment providers, has not been observed during either of our two meetings. In sum, the evidence does not support a finding of psychiatric disability."

See id. at 32-33; NYSCEF Doc. # 1 at 45.

On July 23, 2019, the NYSCERS Medical Board affirmed its prior denial of Petitioner's disability application. See NYSCEF Doc. # 1 at 46; Doc. # 44 at 35-36. In a November 4, 2019 letter Petitioner's counsel requested NYSCERS remand Petitioner's case to the Medical Board based on additional documentation now being provided, including: an October 19, 2019 social worker's report concluding that Petitioner suffers from PTSD, an October 16, 2019 shoulder MRI report, and a November 1, 2019 orthopedic surgeon's report. See NYSCEF Doc. # 1 at 47-48. On January 9, 2020, the NYSCERS Board of Trustees adopted the last recommendation of the NYSCERS Medical Board and denied Petitioner's RSSL § 605-b disability application. See id. at 49; Doc. # 44 at 39.

POSITION OF THE PARTIES

Petitioner argues that NYSCERS' denial of his pension application was based on "arbitrary, capricious and irrational decisions of the NYSCERS Medical Board and their psychiatric independent medical...