Resolving a challenge to the denial of an application for accidental disability retirement benefits resulting from a tie vote by the pension fund's Board of Trustees

The New York City's Police Pension Fund [Fund] Medical Board [Medical Board] concluded that the disability of an individual's [Applicant] for accidental disability retirement benefits [ADR] "stemmed from an unsuccessful spinal surgery and not from a line-of-duty incident." As the Fund's Board of Trustees [Trustees] review of the Medical Board's decision resulted in a tie vote, Applicant was denied accidental disability retirement [ADR] pension benefits and was awarded ordinary disability retirement [ODR] benefits instead. 

Applicant then filed a CPLR Article 78 petition seeking a Supreme Court order annulling the Trustee's action and the Medical Board's determination. Supreme Court dismissed the proceeding and the Appellate Division unanimously affirmed the lower court ruling.

Citing Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, the Appellate Division explained that in the event the Fund's Trustees' determination is the result of a tie vote, the reviewing court may not set aside the denial of ADR benefits "unless it can be determined as matter of law on the record that the disability was the natural and proximate result of a service-related accident."

Accordingly, said the court, in the event that there some credible evidence which supports the Medical Board's findings, a court may not substitute its judgment for that of the Medical Board, noting the decision by the Court of Appeals in Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756 on this point.

Notwithstanding the Applicant's contentions to the contrary, the Appellate Division said that the record shows that the Medical Board reviewed all of the relevant evidence, including Applicant's medical records. Further, said the court, the Medical Board conducted three separate evaluations of the Applicant before reaching its final determination that ultimately resulting in her being awarded ODR benefits. 

Finding that there was credible evidence in the record to support the Medical Board's determination, the Appellate Division opined that the Trustees' denial of the ADR benefits sought by the Applicant should not be disturbed, affirming the Supreme Court's ruling in this matter.

Click HERE to access the Appellate Division's decision.

 

The Freedom of Information Law and Collective Bargaining

The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute,* are available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise within the ambit of the several exceptions to disclosure permitted by FOIL. In other words, there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded. 

In Uniformed Fire Officers Association et al. v. de Blasio et al., Nos. 20-2789-cv, 20-3177-cv,  the United States Circuit Court of Appeals, Second Circuit, addressed a number of issues arising after the repeal of §50-a of New York State's Civil Rights Law. §50-a had for decades shielded the disciplinary records of sworn law enforcement personnel from public disclosure.

In addition, the Circuit Court noted the following:

1. Citing Matter of M. Farbman & Sons v. N.Y.C. Health and Hosps. Corp., 62 N.Y.2d 75, the Circuit Court noted that with respect to records that must be disclosed under FOIL, a public employer cannot bargain away its FOIL disclosure obligations; and

2. Citing Trump v. Deutsche Bank AG, 943 F.3d 10 627, vacated and remanded on other grounds, 140 S. Ct. 2019, the Circuit Court commented that a federal district court may grant a preliminary injunction where the moving party "demonstrates irreparable harm and meets either of two standards: (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation, and a balance of hardships tipping decidedly in the movant’s favor”. 

* The release of some public records pursuant to a FOIL request may be limited by statute such as Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records. 

Click HERE  to access the full text of the decision by the Circuit Court, which opinion, in particular, contains the two observations set out below.

  

 

An employer may rely on its medical expert's opinion if there are conflicting medical opinions as to an applicant's ability to perform the duties of the position

Supreme Court granted the New York City Fire Department's [NYFD] motion to dismiss Plaintiff's CPLR Article 78 petition challenging NYFD's decision disqualifying him for appointment the position of firefighter for medical reasons. Plaintiff's appeal from the Supreme Court's decision was sustained by the Appellate Division, which found that NYFD's decision was not arbitrary and capricious, or without a rational basis.

Citing Matter of Rivers v New York City Dept. of Sanitation, 49 AD3d 436, the court said that the record indicated that Plaintiff "had profound sensorineural hearing loss in his left ear," which, under the standards promulgated by the National Fire Protection Association (NFPA), was grounds to disqualify him from appointment to the position of firefighter

NYFD's physician had considered Plaintiff's medical submissions and letters from his former colleagues, but ultimately determined that his unequal hearing would interfere with his ability to perform search and rescue operations safely, as well as tasks requiring an ability to localize faint sounds in high-noise environments.

NYFD's physician also opined that Plaintiff's hearing loss in his left ear was progressive and would further impair his ability to serve as a firefighter. 

Although Plaintiff's physicians had reached a different conclusion, the Appellate Division said that these different conclusions on the part of Plaintiff's physicians  "does not render [NYFD's] medical examiner's conclusions arbitrary and capricious."

Click HERE to access the Appellate Division's decision.