By MARK TOOR — Friday, August 20th, 2010 ‘The Chief / Civil Service Leader’

A recent ruling by a state Appellate Division panel could make it easier for uniformed-services retirees seeking three-quarters disability pensions to win court challenges to the decisions of pension-fund medical boards, according to several disability attorneys.

“It should give us a better ability to challenge pension-fund medical determinations,” said Chet Lukaszewski, who brought the case that resulted in the ruling, “because the language of the decision seems to expand the scope of what a court can review when a challenge of a pension denial is sought.”

‘Some Credible Evidence’

In one of those decisions, Eileen Borenstein vs. the New York City Employees’ Retirement System, the Court of Appeals concluded in 1996 that a trial court cannot substitute its own judgment for that of a medical board, as long as the board’s decision was based on “some credible evidence.”

This ruling by the state’s highest court made it extremely difficult for retirees who appealed medical-board rejections of their applications for accidental disability pensions, Mr. Lukaszewski said in an interview. Another case six months later, in which the Court of Appeals revoked some pensions awarded by lower courts, further demonstrated “the power of the pension funds,” he said.

The deadline for appealing the recent, more-liberal ruling passed Aug. 9 without an appeal from the city.

Cop’s Patrol Car Hit By Cab

The case involved Joshua Kiess, who had been with the NYPD for three years in November 2006 when a taxicab struck his police car. After the accident, he complained of back pain.

A series of MRIs taken over the next few months diagnosed spinal tears—damage to the spongy discs that act as shock absorbers for the vertebrae in the spine—and herniated discs, in which the discs slip out of place and compress the spinal cord and nerves. Several private physicians said Mr. Kiess was disabled and his treatment options were limited, and a Police Surgeon ruled him medically unable to attempt firearms qualification.

The medical board of the New York City Police Pension Fund, however, in both 2007 and 2008 found that “there are no objective findings precluding the officer from performing the full duties of a New York City Police Officer.”

Mr. Kiess quit the Police Department in January 2008 after it announced that members who had been denied disability pensions would be evaluated for a return to full duty.

Board Was ‘Glaringly Deficient’

After losing in State Supreme Court, Mr. Lukaszewski, who represented Mr. Kiess, said in court papers filed with the Appellate Division that the medical board’s notes on the case were “glaringly deficient.” He said the board had offered no discussion of the recommendations of Mr. Kiess’s private doctors. “The Medical Board blatantly fails to discuss key evidence which supports petitioner’s claims, and minimizes other evidence which it cites,” according to the papers.

Mr. Lukaszewski argued that the medical board’s determination was made without sound basis in reason and without regard to the facts.

The Appellate Division panel sent the case back to the pension fund for re-evaluation July 1, ruling that “it does not appear that the Medical Board considered all of the submitted medical evidence, and. . . the reasons for concluding that the petitioner is medically fit for police work are not clearly stated in the Medical Board’s report.”

The panel said the Borenstein case and others had determined that the medical board is “entitled to resolve conflicts in the medical evidence and rely on its own physical examinations of the applicant.” But it quoted a 1975 decision that found “fairness demands that all available relevant medical evidence be considered by the medical board and the board of trustees before petitioner’s claim to accident disability retirement may properly be rejected.” And it said, the medical board must make its medical reasoning clear.

The Justices on the panel that issued the decision were Angela M. Mazzarelli, Dianne T. Renwick, Helen E. Freedman, Rosalyn H. Richter and Sheila Abdus-Salaam.

Praise for Decision

Other pension attorneys agreed the decision could be a sea change. “I was more than pleased to learn that one of my colleagues was able to finally demonstrate that the pension medical boards are not at liberty to choose what they want to review when making decisions that affect our client’s livelihoods,” said Todd J. Strier.

“Current legal doctrine makes it very challenging to overturn medical determinations if the medical board has what’s called credible evidence to support its findings,” said Robert Ungaro. “Credible evidence has been interpreted to be as meager as the opinion of one medical doctor. This case calls the medical board to task for not considering all the medical evidence and represents, once again, that the medical board has a duty to consider all available medical evidence before reaching a determination.”

City Downplays Significance

“This case says that the medical board cannot simply issue conclusory medical judgments denying disability pensions,” said Troy Rosasco,

But Rhonda Cavagnaro, general counsel for the Police Pension Fund, disagreed that the case would make things easier for the disability attorneys. “I don’t think this case does anything for them,” she said. “All it does is force the medical board to be a little more articulate.”

Ms. Cavagnaro said that because Mr. Kiess had left the Police Department, when the case comes back as remanded the fund will argue that it has no jurisdiction.