Matter of Clancy v. Kavanagh

Matter of Clancy v Kavanagh

2024 NY Slip Op 30026(U)

January 3, 2024

Supreme Court, New York County

Docket Number: Index No. 158921/2022

Judge: Nancy M. Bannon

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.

FILED: NEW YORK COUNTY CLERK 01/05/2024 05:02 PM INDEX NO. 158921/2022

NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/05/2024

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. NANCY M. BANNON PART 42

Justice

---------------------------------------------------------------------------------X INDEX NO. 158921/2022

In the Matter of the Application of

MOTION DATE 04/14/2023

MICHAEL C CLANCY,

MOTION SEQ. NO. 001

Petitioner,

For Judgment pursuant to Article 78

-v- DECISION + ORDER ON

LAURA KAVANAGH, THE BOARD OF TRUSTEES, LOUIS MOTION

LOMBARDI, DAMIAN MARTINO, and PETER NEUMANN,

Respondents.

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The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 12, 13, 14, 15, 16,

17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28

were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) .

I. INTRODUCTION

In this proceeding pursuant to CPLR Article 78, petitioner Michael Clancy, a retired

firefighter with the New York City Fire Department (“FDNY”), seeks judicial review of a

determination by respondent the Board of Trustees of the FDNY, Article I-B Pension Fund

(“Board of Trustees”), to deny his application for Accident Disability Retirement (“ADR”) and

instead grant him Ordinary Disability Retirement (“ODR”). Respondents Laura Kavanagh,

former Acting Fire Commissioner of the FDNY, and Louis Lombardi, Damian Martino, and Peter

Neumann, members of the Fire Pension Fund Medical Board, oppose the petition. The petition

is granted to the extent discussed below.

II. BACKGROUND

In 2005, two years before beginning his employment with the FDNY, the petitioner

suffered an injury to his right shoulder while lifting weights, necessitating a surgical repair. The

petitioner thereafter began working as a full-duty firefighter for the FDNY in August 2007.

During his employment with the FDNY, he suffered several additional injuries to his right

shoulder while in the line-of-duty—on June 12, 2010, February 21, 2012, and July 23, 2013.

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Following each of these line-of-duty injuries the petitioner was medically cleared and able to

return to full duty.

On December 4, 2020, the petitioner again injured his right shoulder when he slipped

and fell while doing maintenance work atop a firetruck. As described in a subsequent report by

the petitioner’s treating physician, Dr. Answorth Allen, an orthopedic surgeon at the Hospital for

Special Surgery (“HSS”), the petitioner suffered an acute injury when, to arrest his fall from atop

the firetruck, he grabbed a crossbar with his right hand causing a hyperabduction of, and

“sudden trauma” to, his right shoulder.

The parties agree that the December 2020 injury resulted from an accident suffered

while the petitioner was in the line-of-duty. The parties further agree that the petitioner, who

was previously able to fully perform the physically demanding functions of a full-duty firefighter,

became permanently disabled following the December 2020 injury, as he suffered persistent

motion loss, pain, and notably decreased strength in his right shoulder despite extensive

medical treatment.

On January 5, 2021, the petitioner began treatment for the December 2020 injury with

Dr. Allen, who thereafter performed two surgeries to repair the petitioner’s right shoulder, an

arthroscopic bankart repair, capsulorrhaphy, and biceps tenodesis performed on January 28,

2021, and a second surgery for capsular release, manipulation under anesthesia, and labral

repair on September 16, 2021. In a letter dated December 17, 2021, Dr. Allen noted that

“[p]revious to [the December 2020 injury] Mr. Clancy claims to have had no pain, full range of

motion, and full weight bearing to right shoulder[,]” but that, more than a year later, and despite

the medical treatment rendered to him, the petitioner continued to suffer from “persistent motion

loss, notable decreased strength . . . and persistent pain” in his right shoulder. Consequently,

Dr. Allen concluded that, “[b]ased on these factors from the [December 2020] accident, Mr.

Clancy is not a candidate to return to his full duties as a firefighter.”

On December 22, 2021, the FDNY Bureau of Health Services (“BHS”) Medical

Committee issued an opinion agreeing with Dr. Allen’s finding that the petitioner was

permanently disabled for full firefighting duties, citing his persistent limitations in range of motion

and strength following the December 2020 injury and the subsequent surgeries to repair his

right shoulder. Notably, the BHS opinion took account of the fact that the petitioner had a

previous surgical repair of his right shoulder in 2012 (following the second of the four line-of-

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duty injuries to his right shoulder), but that he “had been working full duty since then and doing

well,” at least up until the December 2020 injury. Based on this BHS opinion, on January 14,

2022, the Fire Commissioner’s Office submitted applications for ADR and ODR on the

petitioner’s behalf. ADR pensions are granted to firefighters who are disabled due to an

accidental injury in the line of duty. ODR pensions are a lesser pension granted to those who

are disabled, but not due to an injury suffered in the line of duty.

On April 13, 2022, the Fire Pension Fund Medical Board (the “Medical Board”) issued its

recommendations based on its review of the petitioner’s medical records going back to his first

line-of-duty injury in 2010, including the injury reports from his various line-of-duty injuries, MRI

reports related to his line-of-duty injuries, reports from BHS physician examinations, relevant

surgical notes, and the petitioner’s HSS treatment records from Dr. Allen. The Medical Board

did not review any medical records from before 2010, but briefly noted the petitioner’s history of

a non-line-of-duty right shoulder injury and surgical repair in 2005. After summarizing the

petitioner’s medical history, including the treatment he received following the December 2020

injury, as well as the three prior line-of-duty injuries to the same right shoulder, the Medical

Board unanimously concluded that the petitioner “is permanently disabled from performing full

Firefighting duties due [sic] his right shoulder.” The Medical Board noted, with respect to the

petitioner’s medical history, that:

[T]he member underwent multiple right shoulder surgeries. The member had a

history of a Labral tear in 2005 and radiographic evidence of previous shoulder

dislocation first noted in 2012 as per his MRI right shoulder dated 2/23/2012 (which

indicated a Hill-Sachs lesion of the Humeral head). The follow up MRIs do not

show an acute injury due to the fact that injuries where [sic] on the Bursal side of

the joint.

The Medical Board then “further note[d],” without explanation, “that the injury dated

12/4/2020 is not the proximate cause of the member’s right shoulder disability” and

recommended the petitioner for ODR rather than ADR.

On June 29, 2022, the Board of Trustees held a meeting to, inter alia, review the Medical

Board’s recommendation and decide the petitioner’s ADR application. The Board of Trustees’

vote regarding the petitioner’s application for ADR benefits was tied, 6 to 6. Accordingly,

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pursuant to well-established and accepted practice in the case of a deadlocked vote, the Board

of Trustees denied the ADR application and granted the petitioner an ODR.

The petitioner thereafter commenced this proceeding seeking, as relevant here, to have

the court (1) annul the determination of the Board of Trustees to deny his ADR application and

(2) direct the Board of Trustees to grant his ADR application; or, in the alternative, (3) direct a

trial pursuant to CPLR 7804(h) so that the doctors from the Medical Board may be produced to

testify in support of their recommendation to deny ADR benefits; or, in the alternative, (4)

remand the matter to the Board of Trustees to have the petitioner’s ADR application reviewed

by a newly composed Medical Board. The respondents oppose the petition.

III. LEGAL STANDARD

Pursuant to Administrative Code of the City of New York § 13-353, an FDNY firefighter is

entitled to ADR benefits if medical examination and investigation show that he or she is

“physically or mentally incapacitated” during his or her service “as a natural and proximate result

of an accidental injury received in such city-service.” See Matter of Meyer v Bd. of Trustees of

the New York City Fire Dept., Art. 1-B Pension Fund by Safir, 90 NY2d 139, 144 (1997). In

evaluating an FDNY member’s eligibility for ADR, the Medical Board first conducts a medical

examination and reviews medical records to determine whether the member is disabled for

performance of duty. Id. “If the Medical Board concludes that the member is disabled, it must

further determine whether the disability is a natural and proximate result of an accidental injury

received in such city-service and certify its recommendation on this issue to the Board of

Trustees, the body ultimately responsible for retiring the pension fund member and determining

the issue of service-related causation.” Id.

“Ordinarily, the decision of the board of trustees as to the cause of an officer's disability

will not be disturbed unless its factual findings are not supported by substantial evidence or its

final determination and ruling is arbitrary and capricious.” Matter of Canfora v Bd. of Trustees of

Police Pension Fund of Police Dept. of City of New York, 60 NY2d 347, 351 (1983); see CPLR

7803(3) & (4). However, where, as here, the court reviews a determination of the Board of

Trustees to deny ADR, and the Board of Trustees’ determination resulted from a tied vote, “the

standard of judicial review is necessarily different,” as “there has been no factual determination

by the board to be subjected to review” under the normal standard. Matter of Canfora v Bd. of

Trustees of Police Pension Fund of Police Dept. of City of New York, supra at 351-52; see

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Matter of Meyer v Bd. of Trustees of the New York City Fire Dept., Art. 1-B Pension Fund by

Safir, supra at 145. In such circumstances, the reviewing court may not set aside the Board of

Trustees' determination “unless it can be determined as a matter of law on the record that the

disability was the natural and proximate result of a service-related accident.” Matter of Walsh v

Scoppetta, 18 NY3d 850, 852 (2011), citing Matter of Canfora v Bd. of Trustees of Police

Pension Fund of Police Dept. of City of New York, supra. Consequently, “as long as there was

any credible evidence of lack of causation before the Board of Trustees, its determination must

stand.” Matter of Meyer v Bd. of Trustees of the New York City Fire Dept., Art. 1-B Pension

Fund by Safir, supra at 145; see Matter of Baranowski v Kelly, 95 AD3d 746, 746 (1st Dept.

2012) (where, as here, Medical Board finds an employee disabled and Board of Trustees

deadlocks on issue of causation, “accidental disability retirement is denied as long as there is

any credible evidence of lack of causation before the Board of Trustees”).

IV. DISCUSSION

In support of the petition, the petitioner submits, inter alia, his employment-related

medical records from the BHS, including reports from examinations by BHS physicians and

injury reports dating back to the petitioner’s first line-of-duty injury on June 12, 2010; records

from Dr. Allen’s treatment of the petitioner; MRI reports; the opinion of the BHS Medical

Committee; the recommendation of the Medical Board; and the resolution of the Board of

Trustees to deny the petitioner’s ADR application and grant only his ODR application.

In opposition, the respondents submit, inter alia, the same documents submitted by the

petitioner, as well as reports from MRIs performed following each of the petitioner's line-of-duty

injuries prior to the December 2020 injury, and minutes from the Board of Trustees' June 29,

2022, meeting.

It is undisputed that, despite his history of right shoulder injuries, the petitioner did not

suffer from a right shoulder disability and was medically cleared and able to perform his job as a

full duty firefighter prior to the December 2020 injury; that the December 2020 injury resulted

from an accident and was a line-of-duty injury; and that, following the December 2020 injury,

despite undergoing a pair of surgical repairs, the petitioner was determined by his treating

physician, Dr. Allen, the BHS Medical Committee, and the Medical Board to be permanently

disabled due to the condition of his right shoulder. Based on these undisputed facts, logic

would dictate that the December 2020 injury was the proximate cause of the petitioner’s

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disability. Indeed, both Dr. Allen and the BHS Medical Committee attributed the cause of the

petitioner’s disability to the December 2020 injury. The Medical Board, however, inexplicably

concluded otherwise, finding that the December 2020 injury was not the proximate cause of the

petitioner’s disability and recommending to the Board of Trustees against granting ADR

benefits.

The basis for the Medical Board’s conclusion regarding the lack of causality is far from

clear, as it is stated in conclusory fashion without a plain explanation of the Board’s reasoning.

However, based on the discussion of the petitioner’s medical history that immediately precedes

the announcement of the Board’s causality finding, its reasoning appears to be that the

petitioner had a history of previous injuries to the same right shoulder, and that the petitioner’s

disability manifested in a different part of the right shoulder than that affected by the December

2020 injury. Assuming this accurately reflects the Board’s reasoning, this rationale strains

credulity.

With respect to the petitioner’s history of prior right shoulder injuries, it is undisputed that

his initial 2005 injury did not prevent him from gaining employment as a firefighter, and that he

was medically cleared and able to return to full duty after each of his subsequent injuries, all of

which were suffered in the line-of-duty. Indeed, the BHS Medical Committee itself noted that

the petitioner had a previous surgical repair of his right shoulder in 2012 but “had been working

full duty since then and doing well,” up until the December 2020 injury. It was incumbent on the

Medical Board, if it wished to point to these prior injuries as the true cause of the petitioner’s

disability, to reasonably address this glaring incongruity. It did not do so. Further, the Medical

Board had before it no credible evidence that would have allowed it to conclude that the 2005

non-line-of-duty injury was the cause of the plaintiff’s disability, as it only reviewed medical

records dating back to 2010. See Matter of Meyer v Bd. of Trustees of the New York City Fire

Dept., Art. 1-B Pension Fund by Safir, supra at 147 (“credible evidence is evidence that

proceeds from a credible source and reasonably tends to support the proposition for which it is

offered . . . [it is] not merely a conclusion of law, nor mere conjecture or unsupported

suspicion”). And, insofar as the Board was pointing to the petitioner’s prior line-of-duty injuries

as the cause of his disability, its conclusion was irrational and internally inconsistent because

attributing causation to these prior line-of-duty injuries should still result in a recommendation in

favor of ADR benefits.

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As to the possibility that the Medical Board’s rationale was that the disability manifested

in a different part of the right shoulder than that affected by the December 2020 injury, the

Board’s conclusion simply lacks a sound basis in reason or any medical explanation articulated

in the record. The basis for this reading of the Board’s reasoning is its statement, immediately

after a brief reference to the petitioner’s prior right shoulder surgery in 2012, that “follow up

MRIs do not show an acute injury due to the fact that injuries where [sic] on the Bursal side of

the joint.” Assuming that this highly ambiguous statement was meant to convey that, in the

Board’s opinion, the petitioner’s disability stemmed from a condition affecting a different part of

the right shoulder than that affected by the December 2020 injury, it is unclear how one would

square this opinion with the Board’s much more clearly explicated disability finding. The

Board’s conclusion that the petitioner was disabled was based on the medical evidence that,

following the pair of surgical repairs performed by Dr. Allen, the petitioner continued to suffer

from persistent pain, weakness, and decreased range of motion in his right shoulder. That is,

the disability found by the Board was attributed to the condition of the petitioner’s right shoulder

generally, and not to a more particular condition specifically affecting or located in only one

discrete portion of the joint.

Moreover, the Board’s apparent reasoning would require one to believe that, in an

incredible coincidence, the petitioner suffered a severe injury to one part of his right shoulder,

requiring multiple surgical repairs, and, simultaneously, a latent and/or preexisting condition, in

a different part of the same shoulder suddenly, for an unknown but entirely unrelated and

independent reason, caused the petitioner to become permanently disabled. The court simply

cannot find rationality in such a conclusion. Further, other than its general summary of the

petitioner’s history of prior shoulder injuries, the Medical Board does not identify a specific,

alternative cause of his disability, let alone point to credible evidence demonstrating causality

with respect to such an alternative.

In sum, the Medical Board failed to clearly explicate the rationale for its causality opinion,

leaving the court to guess at its reasoning. Even so, the conclusion that the Medical Board

lacked any credible evidence of lack of causation appears nearly inescapable. Either the

Medical Board’s causality finding was based on impermissible conjecture regarding the

presence of some unidentified alternative cause for the petitioner’s disability, or else it was

premised on the petitioner’s prior line-of-duty injuries, which are the only potential alternative

cause that appear in the records reviewed by the Medical Board. But, as already discussed

above, if the prior line-of-duty injuries are to be accepted as the true cause of the petitioner’s

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disability, then the Medical Board must explain why such a conclusion does not itself require a

recommendation in favor of ADR benefits.

For these reasons, the petition is granted to the extent that the determination to deny the

petitioner’s ADR application is annulled and the proceeding is remanded to the Medical Board

either to reassess the evidence in its entirety or to set forth a clear and thorough explanation as

to how it determined that the December 2020 injury was not the cause of the petitioner’s

disability and/or, if the cause of his disability is determined to be his prior line-of-duty injuries,

why this would not also entitle him to ADR benefits.

V. CONCLUSION

Accordingly, it is

ORDERED and ADJUDGED that the petition is granted to the extent that the

determination is annulled and the matter remanded for appropriate reconsideration in

accordance with this court’s decision; and it is further

ORDERED that the Clerk of the court shall enter judgment accordingly.

This constitutes the Decision and Order of the court.

N;Jl~

HON. NANCY M. BANNON

1/3/2024 $SIG$

DATE

CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

□ □

X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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