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November 29, 2023

Court finds the "heart presumption" set out in the Retirement and Social Security Law was "successfully rebutted" by the Retirement System

Petitioner, a correction officer, suffered a heart attack in 2007 and was diagnosed with and treated for high blood pressure. Petitioner returned to work in 2008, voluntarily joining a unit tasked with returning parole absconders to the counties of their convictions. In February 2017, Petitioner, complaining of fatigue and edema, sought treatment from a cardiologist, who diagnosed petitioner with coronary artery disease, heart failure and high blood pressure. Approximately one month later, Petitioner sought further treatment after experiencing chest pains and shortness of breath while at work, and he did not thereafter return to work.

Petitioner applied for performance of duty disability retirement benefits in September 2017, contending he was permanently incapacitated from the performance of his duties as the result of a heart condition. Although Petitioner was found to be permanently incapacitated, his application for benefits was denied upon the ground that his disability was not sustained as a result of the performance or discharge of his duties.

Following a hearing and redetermination, the Hearing Officer upheld the denial, finding that Petitioner's heart disease was not caused by his employment. The State Comptroller adopted the Hearing Officer's findings of fact and conclusions of law, and Petitioner commenced this CPLR Article 78 proceeding challenging the Comptroller's determination.

The Appellate Division affirmed the Comptroller's determination, noting that the New York State and Local Employees' Retirement System concedes that Petitioner is permanently incapacitated from the performance of his duties as a correction officer as a result of his heart condition and, further, that the "heart presumption" embodied in Retirement and Social Security Law §507-b(c) applies. However, said the court, citing  Matter of Park v DiNapoli, 123 AD3d 1392; Matter of Walters v DiNapoli, 82 AD3d 1487; and Matter of Rivera v DiNapoli, 78 AD3d 1295, "the issue distills to whether the Retirement System successfully rebutted the heart presumption, which, in turn, required the Retirement System to demonstrate -- through expert medical proof -- that Petitioner's cardiac condition was caused by risk factors other than his employment".

The Retirement System's medical expert [Expert] reviewed Petitioner's job description, together with numerous medical records, test reports and office notes, and conducted a physical examination of Petitioner in January 2018. After examining Petitioner, Expert diagnosed Petitioner with "nonobstructive coronary artery disease, very mild congestive heart failure and diabetes (not well controlled)". According to Expert, diabetes is "a major risk factor" for, among other things, heart attack and coronary artery disease; Petitioner's "additional risk factors for coronary artery disease included hypertension, dyslipidemia, obesity and a sedentary lifestyle."

In the words of the Appellate Division, "Although Expert agreed that Petitioner was permanently incapacitated from the performance of his duties as a correction officer as a result of his cardiovascular disease, Expert was adamant that Petitioner's correctional officer duties were not the cause of such disease, stating that '(c)oronary artery disease is not occupation specific.' Rather, Expert opined, there are 'well-defined risk factors for coronary artery disease,' including the various risk factors previously attributed to Petitioner. With respect to work-related stress, Expert acknowledged that stress could be a contributing factor to, for example, Petitioner's high blood pressure, but he made clear that stress was neither a recognized risk factor for developing coronary artery disease nor a cause of coronary artery disease or hypertension in the first instance (see Matter of Walters v DiNapoli, 82 AD3d at 1488). Expert further opined that the identified risk factors could not be viewed in isolation, i.e., no one individual risk factor may be said to have caused [Petitioner's] coronary artery disease; rather, such disease was the 'collective' effect of the recognized risk factors identified in Expert's report.

The Appellate Division said Expert's testimony, in its view, was sufficient to exclude Petitioner's employment as a causative factor in the development of his disabling coronary artery disease and, as such, the statutory presumption was effectively rebutted. Further, opined the court, "The testimony offered by Petitioner's treating cardiologist, which the Comptroller was free to reject ... does not warrant a contrary result, as such testimony -- at best -- establishes that stress "appears to" or may "possibl(y)" have some effect upon the development or progression of coronary artery disease. The decision then notes that Petitioner's remaining arguments on this point, to the extent not specifically addressed, had been examined and found to be "lacking in merit" by the Appellate Division.

* RSSL §507-b(c) provides as follows: c. Notwithstanding any provision of this chapter or of any general or special law to the contrary, any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a member covered by this section, presently employed and who shall have sustained such disability while so employed, who successfully passed a physical examination on entry into service as a correction officer or security hospital treatment assistant, which examination failed to disclose evidence of any disease or other impairment of the heart, shall be presumptive evidence that it was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.

Click HERE to access the Appellate Divisions decision posted on the Internet.

 

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