medical board's conclusory finding lacking a factual basis did not constitute "competent evidence" required to rebut statutory presumption of causation
How later courts described this case
- medical board's conclusory finding lacking a factual basis did not constitute "competent evidence" required to rebut statutory presumption of causation
Written by the judges who cited it.
The opinion
Quinn v Board of Trustees of the Fire Dept. of the City
of N.Y. Pension Fund
2024 NY Slip Op 30013(U)
January 3, 2024
Supreme Court, New York County
Docket Number: Index No. 151624/2023
Judge: Arthur F. Engoron
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 151624/2023
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/03/2024
SUPREME COURT OF THE STA TE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON.ARTHURF.ENGORON PART 37
Justice
------n••------------·----------------------------X INDEX NO. 151624/2023
MICHELE QUINN,
MOTION DATE 02/17/2023
Petitioner,
MOTION SEQ. NO. 001
-v-
THE BOARD OF TRUSTEES OF THE FIRE DEPARTMENT
OF THE CITY OF NEW YORK PENSION FUND, THE NEW DECISION + ORDER ON
YORK CITY FIRE PENSION FUND, LAURA KAVANAGH, MOTION
Respondents.
-------------------------------------
The following e-fHed documents, listed by NYSCEF document number (Motion 001} 2, 18, 19, 20, 21, 22,
23,24,25,26, 27,28, 29, 30, 31, 32, 33, 34, 35, 36, 37,38, 39, 40,41,42,43,44,45,46,47,48,49, 50,
51, 52, 53, 54, 55, 56, 57
were read on this motion to/for ARTICLE 78 (BODY OR OFFICER)
Upon the foregoing documents, and for the reasons stated herein below, the petition is granted as
follmvs.
Background
On January 25, 2023, petitioner, Michelle Quinn, commenced this Article 78 Special Proceeding
seeking: (1) to annul the October 26, 2022 determination of respondent The Board of Trustees of
the Fire Department of the City of New York Pension Fund (the "Board") that denied a World
Trade Center ("WTC") line-of-duty death benefit pension arising from the post-surgery
accidental drug overdose death of petitioner's husband, retired firefighter Peter A. Quinn
("Quinn"), and (2) directing that respondents grant the application. NYSCEF Doc. No. 1.
The parties do not dispute that Quinn was a uniformed member of the FDNY who retired in 2015
with a line-of-duty disability pension, pursuant to New York Administrative Code§ 13-
353. l(l)(a) (the "WTC Bill"). A December 11, 2014 report from New York Fire Department
Pension fund Subchapter II Medical Board recommending Quinn's retirement found that he was
"permanently disabled with reactive airways disease and asthma ... he has had symptoms for
many years which has always been called bronchitis but has required prednisone on multiple
occasions." NYSCEF Doc. No. 5. The Board also noted that Quinn had "gained about 150 lbs.
over the past several years which he describes [sic] to his use of prednisone." Id.
On January 15, 2019, Quinn was admitted to the Hospital for Special Surgery ("HSS") for a total
replacement of his left knee apparently due to his underlying obesity. The day after the surgery,
according to HSS medical records, a doctor "educated" Quinn about pain management and its
risks, especially ""in the setting of' obstructive sleep apnea ("OSA"), a recognized WTC
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condition of which Quinn suffered. NYSCEF Doc. No. 7. On January 20, 2019, Quinn was
discharged and given various prescriptions, including for morphine and for a naloxone rescue kit
in case of an overdose. NYSCEF Doc. No. 8.
On the morning of January 21, 2019, Quinn was found unresponsive and later pronounced dead.
NYSCEf Doc. No. 9. An autopsy report detennined that his death was an accident caused by
"acute mixed drug intoxication'' from "medication ingestion" and "acute bronchopneumonia."
NYSCEF Doc. 10.
On March 12, 2020, petitioner applied to the Board for a line-of-duty pension. NYSCEF Doc.
No. 11. On October 9, 2020, the Board denied petitioner's application, noting that, while Quinn
had been disabled due to his pu1monary health, "it is not clear whether [Quinn] meets the criteria
for ta] Linc-Of-Duty pension, as it is not clear what his actual cause of death was, or the
circumstances that surrounded his death." NYSCEF Doc. No. 12. The Board also expressed
"our hope and expectation that further information \Vill be made available to us that will help us
in understanding FF Quinn's psychological state of mind in the years of his retirement and at
around the time of his death." Id.
On May 28, 2021, petitioner submitted to the Board a toxicology case record review by Dr.
Richard Stripp, Ph.D, who had found, to a "reasonable degree of toxicological certainty,'' that
Quinn "experienced respiratory complications as a result of consuming morphine and
oxycodone. His health status and previous history of respiratory disease and sleep apnea greatly
increased the risk of a fatal accidental overdose from opioid analgesics." NYSCEF Doc. No. 13.
Dr. Stripp also found that suicide was unlikely as Quinn's
postmortem drug levels reflect an accidental overdose in a high-
risk situation that was precipitated by previous physical health
conditions as a result of working recovery/rescue operations at the
\VTC site. Had it not been for Mr. Quinn's history of respiratory
disease (RADS), pneumonia and sleep apnea, it is unlikely that
doses of these drugs would have been fatal in a tolerant individual.
Despite Dr. Stripp's report, the Board continued unanimously to deny petitioner's applications
based on what they did not know (i.e.; where the specific medications Quinn overdosed might
have come from, what happened in the hours after Quinn was discharged from HSS, what his
state of mind was after retirement) and the fact that the autopsy report listed acute mixed drug
intoxication as the cause of death, which is not a qualifying condition for the purposes of a WTC
death benefit. NYSCEF Doc. Nos. 14, 15, 16.
WTC Presumption
Pursuant to the WTC Bill, an eligible firefighter's disability or death as a result of a qualifying
WTC condition, as defined in Retirement and Social Security Law§ 2 (36), is "presumptive
evidence that it was incurred in the performance and discharge of duty and the natural and
proximate result of an accident not caused by such member's own willful negligence, unless the
contrary be proved by competent evidence" (the "WTC Presumption'').
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Arguments
Petitioner now moves to annul the Board's decisions, arguing that the Board arbitrarily and
capricious1y failed to take into account the \VTC Presumption, as Quinn meets the statutory
requirements (he worked at the WTC site and suffered from recognized qualifying WTC
conditions) and the ultimate cause of his accidental overdose, if not the overdose itself, was
directly related to his qualifying WTC conditions.
In opposition respondent argues, inter alia, that the instant denials were neither arbitrary nor
capricious, as the WTC Presumption does not apply when, as here, credible evidence shows that
a party did not die of a qualifying condition. Respondent argues that the autopsy report and "the
Medical Board's expert opinion constitutes credible evidence."
Discussion
In Matter of Bltchatchi v Bd. of Trustees of New York City Police Dept. Pension Fund, 20 NY3d
268 (2012 ), the Court of Appeals addressed the WTC Presumption, in the identical context of
NYPD first responders, and found:
The legislature created the WTC presumption to benefit first
responders because of the evidentiary difficulty in establishing that
non-trauma conditions, such as cancer, could be traced to exposure
to the toxins present at the WTC site in the aftermath of the
destruction. l lence, unlike ordinary [Accident Disability
Retirementj claimants, first responders need not submit any
evidence--credible or otherwise--of causation to obtain the
enhanced benefits. Nevertheless, the legislature did not create a
per se rule mandating [Accident Disability Retirement] benefits for
all eligible responders. Rather, it provided that a pension fund
could rebut the presumption by "competent evidence." Under this
carefully calibrated framework, we believe that the competent
evidence contemplated by the WTC presumption may be equated
with the well-established credible evidence standard, provided that
the pension fund bears the burden of comingfonvard with
affirmative evidence to disprove causation .
.kl at 281-82 ( emphasis added),
Credible evidence "is evidence that proceeds from a credible source and reasonably tends to
support the proposition for which it is offered.'' Matter of Meyer v Bd. of Trustees of the New
York City Fire Dept.. Art. 1-B Pension Fund by Safir, 90 NY2d 139, 147 (1997) (citations
omitted). Furthermore, "it must be evidentiary in nature and not merely a conclusion oflaw, nor
mere conjecture or unsupported suspicion," Id.
Here, there is no question that Quinn was at the WTC site and disabled as the proximate result of
his line-of-duty exposure. But see Brennan v Kellv, 111 AD3d 407,408 (1st Dept 2013)
(affirming respondent's denial of WTC benefits when petitioner offered no credible evidence of
presence at w·rc site). Quinn's disabilities included reactive airway disease, asthma, and
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obstructive sleep apnea, all recognized WTC conditions. See Matter of Dement v Kelly. 97
AD3d 223, 230 (1st Dept 2012). Petitioner, through the report of Dr. Stripp, has made a credible
argument supporting the proposition that the accidental overdose cause of death listed on
Quinn's autopsy was, in turn, a result of his WTC injuries. Bitchatchi at 275 ("an officer's
disability or death as a result of a qualifying condition is presumed to be caused by his or her
exposure at the WTC site for purposes of benefit upgrades."). That Quinn's qualifying
conditions specifically made him susceptible to an accidental overdose is further supported by
the HSS doctor's notes and the fact that he was prescribed anti-overdose medications.
The purpose of the WTC Bill "is to protect workers harmed by the September I 1th tragedy."
Dement v Kelly, 97 AD3d 223, 231 (I st Dept 2012). "Respondents' narrow reading of the law
would defeat the avowed purpose of the statute, i.e., to protect 9/1 l workers as a result of their
heroic effmts ... The statutory language 'an impainnent of health caused by a qualifying [WTC]
condition' must be interpreted in a manner consistent with the underlying purposes of the
statute." Id.
It was arbitrary and capricious for respondents to find that Quinn was not entitled to the WTC
Presumption, and, therefore, they must rebut that preswnption with "credible evidence," which
they failed to do. Respondent's conjecture and unsupported suspicion that Quinn's accidental
overdose was not ultimately caused by a qualifying WTC condition is insufficient. Liston v City
of New York, 161 AD2d 491, 492 (1st Dept 1990) (medical board's conclusory finding lacking a
factual basis did not constitute "competent evidence" required to rebut statutory presumption of
causation).
Therefore, this Court will direct respondent to vacate its prior determination, denying petitioner's
application for a line-of-duty death benefit pension pursuant to the WTC Bill. Dement at 232
(1st Dept 2012) ("A court may set aside the Board of Trustees' denial of ADR benefits where it
can conclude, as a matter of law, that a petitioner's disability is the natural and proximate result
of a service-related accident."); see Canfora v Bd. of Trustees of Police Pension Fund of Police
Dept. of City of New York, 60 NY2d 347 (1983).
Conclusion
The petition is granted; respondents are hereby directed to annul the October 26, 2022
determination of respondent The Board of Trustees of the fire Department of the City of New
York Pension Fund, which denied petitioner's application for line-of-duty death benefits, and
reconsider its determination consistent with this Decision; the Clerk is directed to enter
judgement accordingly.
1/3/2024
DATE ARTHUR F. ENGORON, J.S.C.
~
CHECK ONE: CASE DISPOSED NON•FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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