APPELLATE DIVISION FIRST DEPARTMENT - July 2010 - The Appellate Division, First Department, reversed the Supreme Court, New York County, which had upheld a disability pension denial in the case of a former NYPD police officer who had presented extensive evidence of severe line of duty related spinal injuries. In reversing the lower Court, and remanding the matter to the Police Pension Fund, the First Department Judges agreed with the petitioner-appellants’ arguments, and determined that the Pension Fund’s Medical Board had failed to consider evidence, including the Officer’s surgeons’ reports, and diagnostic test results, and that the Board failed to explain and justify its denial, particularly in light of its own noted observations that the Officer had limitations in his range of motion and physical abilities. The Appellate Court further found that petitioner-appellant had demonstrated that instead of putting forth a legally sufficient explanation of its denial, the Medical Board simply referred back to previous ‘minutes’ in which it had concluded no disability, without discussing new probative evidence which was presented for its review and evaluation. The Appellate Court based its decision on the Officer’s arguments, that under the applicable laws, fairness dictates that all evidence in a disability pension matter be considered by the Medical Board and the Board of Trustees, and that the Medical Board must clearly state its reasons for a denial; and that neither of which had occurred; and thus the decisions of the Pension Fund and lower Court were legally deficient.

(PUBLISHED AS DECISION OF INTEREST IN NEW YORK LAW JOURNAL) June 2010 - It was the finding of the New York Supreme Court, that the NYPD Pension Fund had acted arbitrarily and improperly under the controlling laws, in awarding the petitioner an Ordinary (1/2) as opposed to an Accidental (3/4) disability pension, based on a determination that her psychological disability was the result of an “incident” and not an “accident”, under the disability pension law definition of an accident: “a sudden, fortuitous mischance, out of the ordinary and injurious in impact”; and it was ordered that the petitioner be granted an Accidental Disability Retirement pension and retroactive benefits. The petitioner was a police officer who had worked at an “inside” administrative job full time for 6 years prior, as opposed to being out in ‘the field’ performing what is commonly thought of as ‘true’ ‘police work’, and had just returned from being out of work for 6 weeks following a major life altering surgery, when she was forced to shoot and kill a deranged individual who attacked her through the passenger window of the car she was being driven home from work in; and who bled to death on top of her and whose dead body had to be lifted off of her. It was found by the Court, that it was totally unexpected when the individual charged the car in the middle of the traffic packed highway and attacked petitioner, and tried to take her gun. And that based on the petitioner’s job assignment and recent medical leave, it was totally out of the ordinary for her to have to take the police action of shooting an individual at that time. The Court thus ordered the pension upgrade and retroactive benefits.

May 2010 – The Supreme Court, New York County, determined, in remanding a ‘Heart Bill’ matter, that the Police Pension Fund had ignored the evidence of petitioner’s cardiologist and “cherry picked” from the evidence presented, in denying petitioner a line of duty disability pension under the Heart Bill. The Court found that the Pension Fund had not rebutted the presumption of the Heart Bill and had not disproven the connection between petitioner’s long standing history of hypertension and his heart disease. The Court noted that the Medical Board’s findings were conclusory, that the Medical Board contradicted itself, and seemed to ignore key evidence including the petitioner’s bouts of uncontrolled hypertension despite his taking tremendously high doses of high blood pressure medicine, and the extreme stress incurred in the final years of his career based on the operations in which he was involved. The Court sent the matter back to the Police Pension Fund to present the petitioner with “an appropriate application” of the Heart Bill.

May 2010– (Note that based on the nature of petitioner’s job duties, this case was made to be confidential.) It was the finding of the Court that the Pension System had acted arbitrarily and improperly under the controlling laws based on the facts of the case, where the petitioner was found to be disabled, but it was determined the disability had absolutely no connection to the line of duty. The Court ordered a reconsideration of the case which was to include an evaluation in keeping with the detailed nature of the Court’s finding, which presented an in depth discussion of the applicable pension laws, and focused on the fact that the purpose and intent of such laws, is to protect those individuals whose occupations place them in harm’s way, to protect the general public.

(PUBLISHED AS DECISION OF INTEREST IN NEW YORK LAW JOURNAL) March 2010 - The Kings County Supreme Court found the New York City Employees’ Retirement System (NYCERS) acted in a legally deficient manner in denying the disability pension application of a New York City Staff Nurse. The Judge held that it was clear that the NYCERS' Medical Board had dismissed findings of its own physicians and an independent physician, as well as ignored medical proof of disability which was submitted by the petitioner. The Court held that the Board of Trustees adopted a Medical Board recommendation which was not supported by credible evidence. The Court annulled the denial and remanded the application to the Retirement System for a new evaluation and new report by the Medical Board with regards to petitioner’s numerous debilitating conditions. In its decision the Court emphasized that the denial lacked a rational basis and the Medical Board put forth a bald and conclusory explanation for its findings which failed to substantiate that the petitioner was not disabled from performing the duties of a City Nurse.