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A. Orli Spanier, for appellants.
David Jalosky, for respondent.
KAYE, CHIEF JUDGE:
This appeal centers on a determination by the
Medical Board of appellant New York City Employees' Retirement System
("NYCERS") that respondent was not physically disabled for the purpose
of performing city-service. We now consider the proper standard for
judicial review of that determination.
In the early morning hours of December 25,
1990, while working at Rikers Island Correctional Facility as an assistant
deputy warden, respondent allegedly slipped on loose carpeting in the supervisors'
bathroom and suffered injuries to her neck, shoulder, back, and right hand
and wrist. There were no eyewitnesses to the incident. Respondent
was immediately examined by a Department of Corrections clinical physician
who diagnosed her right hand as sprained. The physician noted that
respondent had some degree of neck discomfort but had full range of motion.
A week later, another physician with the Department's Health Management
Division, after examining respondent, reported that she may have sustained
a
concussion in the fall. An X-ray of respondent's right hand revealed
that there was no fracture.
Approximately two months later, respondent's
physician (Dr. Carlisle St. Martin) concluded from a number of neurological
tests that she was suffering from post-concussion syndrome and cervical
and lumbosacral sprains. An electroencephalogram was inconclusive,
but a Magnetic Resonance Imaging ("MRI") scan of respondent's cervical
spine on May 8,
1991 revealed a herniated disc at the C5-C6 interspace, a "prominent
annulus" at the C6-C7 interspace and a slight reversal of the spine's normal
curvature. There were no "other focal abnormalities" and no "abnormalities
of the brain stem or spinal cord."
In August 1991, the Department applied to
NYCERS requesting that respondent -- who had been on sick leave for the
seven months since the incident -- be considered for disability benefits.
In that connection, on January 29, 1992, respondent
was examined by the three NYCERS Medical Board physicians. At that
time she complained of constant headaches, blurred vision, neck pain and
weakness of her left arm. The Medical Board found that the motion
in her cervical spine was limited, the grip of her left hand was weak,
and her left paracervical and left trapezius muscles were painful to ordinary
touch. The Board noted, however, that respondent could adequately
extend both arms, the measurements of her left arm and forearm were equal
to the right, the deep tendon reflexes of both of her arms were normal
and she showed no signs of a hernial defect. The Board concluded
that respondent's complaints did not "substantiate a finding of disability"
and recommended to the NYCERS Board of Trustees that she be denied disability
benefits.
Respondent then obtained written opinions
from her own doctors contradicting the Board's findings. Dr. St.
Martin opined that, based on his examination and test results, respondent
suffered from cervical disc disease, was "unfit for any type of duty" and
"should not return to the workplace." Dr. Harvey Levine, an orthopedic
surgeon, writing to the
attorney representing respondent on her claim for Social Security disability
benefits, noted that because respondent had a herniated C6 disc and radiculitis
(an inflammation of the nerve root) on the left side of her body, she would
not be able "to function in any meaningful capacity."
Following a determination by a Workers' Compensation
Board physician that respondent was "partially disabled," the Medical Board
reconsidered her application for accidental disability retirement, including
the new reports of Dr. St. Martin and Dr. Levine. After reviewing
her entire file and re-interviewing and re-examining her, the Medical Board
again concluded that respondent was not medically disabled for the performance
of city-service and recommended to the Board of Trustees that her request
be denied. Some time after the Medical Board reported its findings
to the Board of Trustees, the Social Security Administration approved respondent's
claim for disability benefits.
After the NYCERS Board of Trustees denied
respondent's request for accidental disability retirement benefits, respondent
commenced an article 78 proceeding seeking to annul the determination.
Supreme Court dismissed her petition, but the Appellate Division reversed
and granted respondent's application for an accident disability pension.
We now reverse and dismiss the petition.
The award of accidental disability retirement
benefits to a NYCERS applicant is a two-step process (see Administrative
Code of City of New York 13-168[a]). The first step involves fact-
finding by the NYCERS Medical Board (see also, Administrative Code of City
of New York 13-123[a] [composition of Medical Board]). After conducting
its own medical examination of the applicant and considering the evidence
submitted in support of the claim, the Medical Board, as a threshold matter,
must certify whether the applicant is actually "physically or mentally
incapacitated for the performance of city-service." If the Medical
Board concludes that the applicant is disabled, it must then 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."
The second step in the process involves the
NYCERS Board of Trustees (see also, Administrative Code 13-103[b] [composition
of Board of Trustees]). If the Medical Board certifies that the applicant
is not medically disabled for duty, the Board of Trustees must accept that
determination and deny applicant's claim. The Board of Trustees is
equally bound by a Medical Board finding that the applicant is disabled,
but in that event it must then make its own evaluation as to the Medical
Board's recommendation regarding causation.
In an article 78 proceeding challenging the
disability determination, the Medical Board's finding will be sustained
unless it lacks rational basis, or is arbitrary or capricious (see, Canfora
v Board of Trustees, 60 NY2d 347, 351; Matter of Pell v Board of Educ.,
34 NY2d 222, 230-31).
Ordinarily, a Medical Board's disability
determination will not be disturbed if the determination is based on substantial
evidence (see, Matter of Tobin v Steisel, 64 NY2d 254, 259; Canfora v Board
of Trustees, supra). While the quantum of evidence that meets the
"substantial" threshold cannot be reduced to a formula, in disability cases
the phrase
has been construed to require "some credible evidence" (see, e.g, Matter
of Longo v City of New York, 178 AD2d 253, 255, aff'd 79 NY2d 1011; Matter
of Goldman v McGuire, 101 AD2d 768, 770, aff'd 64 NY2d 1041; Matter of
Belnavis v Board of Trustees, 84 AD2d 244, 248; Matter of Manza v Malcolm,
44 AD2d 794; Matter of Drayson v Board of Trustees, 37 AD2d 378, 380, aff'd
32 NY2d 852). "Some credible evidence" strikes a proper balance between
deference to the Medical Board and accountability to NYCERS members.
Here, the Medical Board's determination was
based on "some credible evidence" and was not arbitrary or capricious.
The Appellate Division faulted the Medical Board for "solely" describing
respondent's condition in terms of her subjective complaints of pain, for
basing its determination on "questionable clinical evidence garnered from
its own examination" and for ignoring the "conclusive proof" of disability
provided by the results of the MRI scan -- all of which the court deemed
"irrational." Such a view of the record was erroneous.
Although the Medical Board did consider respondent's
subjective complaints of pain when determining disability, the record makes
clear that it went beyond them. As the Medical Board found, the medical
evidence submitted by respondent -- including the MRI -- was not dispositive
on the issue of disability but was subject to conflicting interpretations.
The
Board alone had the authority to resolve such conflicts (see, Matter
of Tobin v Steisel, supra, at 258-59; Matter of Cassidy v Ward, 169 AD2d
482, 483). In each of its two final reports submitted to the Board
of Trustees, the Medical Board detailed what medical proof had been considered,
specified the nature of respondent's complaints and outlined the results
of
its physical examinations of respondent, concluding that respondent's
physical condition was not disabling for duty.
In the end, the Appellate Division here did
what it should not do: "substitute * * * [its] own judgment for that of
the Medical Board" (Matter of Santoro v Board of Trustees, 217 AD2d 660,
660-61, citing Matter of Brady v City of New York, 22 NY2d 601; Matter
of Appleby v Herkommer, 165 AD2d 727). Thus, the court erred in overturning
the Medical Board's
finding regarding disability, and additionally erred in granting an
accident disability pension, which is dependent on a finding of causation
as well as disability.
Accordingly, the order of the Appellate Division
should be reversed, with costs, and respondent's article 78 petition dismissed.
* * * * * * * * * * * * * * * * *
Order reversed, with costs, and petition dismissed. Opinion by Chief Judge Kaye. Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.
Decided October 15, 1996