Cases

      


Matter of O'Brien v Kelly, 126 A.D.3d 437 (Decided March 5, 2015)

This case involved an NYPD Sergeant who lost his hearing in the line of duty.  When the Sergeant was attempting to arrest an armed suspect, he suffered repeated elbow strikes to the ear with simultaneous firearm discharge by the perpetrator.  After the Sergeant was prescribed hearing aids and told that he could not return to duty by the NYPD Medical Division, the Sergeant applied for a service-connected disability pension. 

However, the NYPD Pension Fund Medical Board stated that the Sergeant's hearing loss was "congenital," in spite of the overwhelming evidence that he became disabled by a line-of-duty assault.  After years of litigation, the New York State Appellate Division, First Department, overruled the NYPD Pension Fund Medical Board, finding that their decision ignored credible evidence from the NYPD's own doctors.



Matter of Sheldon v Kelly, 126 A.D.3d 138 (Decided February 17, 2015)

This case involved an NYPD officer who worked at the World Trade Center in the aftermath of September 11, 2001, for a total of over 300 hours.  In 2002, the Officer was diagnosed with fibromyalgia as a result of heavy metal poisoning; she suffered with muscle aches, fatigue, and unexplainable hair loss.  The officer was eventually removed from duty, and the NYPD Pension Fund Medical Board found her disabled with a diagnosis of "fibromyalgia."  However, the Medical Board denied her application for accidental disability retirement ("ADR") because fibromyalgia is not specifically listed in the World Trade Center Disability Law.

The New York State Appellate Division, First Department, overruled the Medical Board, and granted Officer Sheldon's ADR application.  The court stated, "In determining whether a particular illness or condition is covered under the statute, the Medical Board should avoid employing narrow definitions...  Indeed, the record contains no proof whatsoever that petitioner's disabling conditions were attributable to any other cause.  Petitioner is therefore entitled to ADR benefits as a matter of law."  The New York State Court of Appeals denied the City's motion for leave to appeal, and the First Department's decision in this case is now binding law.



Matter of McAuley v Kelly, 103 A.D.3d 449 (Decided February 14, 2013)

This case involved an NYPD officer who worked at Ground Zero between September 11, 2001 and September 27, 2001.  The officer was treated for chest pain on September 15, 2001, and noticed increasing pulmonary symptoms until March 2, 2002, when she had a 3.5 cm tumor removed from her lung.  The officer retired from the NYPD on an ordinary disability pension in 2005 due to her cancer and the sequelae of her treatment for cancer.  However, the Pension Fund Medical Board stated that the officer's cancer was discovered too soon after September 11, 2001 to be causally related to her work at Ground Zero, and so denied her application for service-connected disability benefits.

The Appellate Division, First Department, overruled the City and granted the officer's application as a matter of law.  The court affirmed that it is legally presumed that the officer's disabling cancer was caused, or at least worsened, by her exposure at Ground Zero, and that the Medical Board failed to affirmatively rebut this legal presumption with any scientific evidence.




Matter of Weiner v Kelly,

This was the case of NYPD Detective Thomas Weiner, who spent 24 consecutive hours at Ground Zero following the collapse of the Twin Towers.  The detective worked at Ground Zero for multiple days, and his health began to suffer almost immediately.  In early 2003, his doctors noticed rapidly metastasizing cancer in the detective's stomach area, which did not appear on his pre-surgical biopsies in October of 2002.  Detective Weiner passed away less than a month after being diagnosed with cancer.  On his deathbed, NYPD Commissioner Ray Kelly awarded him a promotion for his bravery and service at Ground Zero.

However, when Detective Weiner's widow applied for service-connected bereavement benefits under the World Trade Center Disability Law, the NYPD Pension Fund Medical Board stated that his cancer was too advanced in 2003 to have been caused by exposure at Ground Zero.  After court proceedings were initiated to challenge the Medical Board's findings, the City stipulated with Mrs. Weiner to have the case reexamined by the Medical Board, rather than have to defend their decision in court.  Upon further review, the city awarded service-connected bereavement benefits to Mrs. Weiner.


 


Matter of Scialo v Cassano,

This is the long-standing case of Anthony Scialo, a 21-year FDNY firefighter who became permanently disabled when he fell through the floor at a building fire, injuring his left leg.  F.F. Scialo had already suffered multiple service-connected injuries to his left knee up until that time, and he was never permitted to return to firefighting duty by the FDNY Health Services Bureau after his final accident. 

After the member filed an application for service-connected disability retirement, the FDNY Pension Fund Medical Board unjustifiably waited over 18 months to physically examine him.  In doing so, they explicitly violated the provisions of the New York City Administrative Code that require disability survey examinations to take place within 30 days of the filing of the application.  Nevertheless, after the Medical Board examined F.F. Scialo, they eventually stated that he was disabled, but that there was insufficient evidence that he was disabled at the time he filed his application, in spite of their own failure to examine him contemporaneously.  In doing so, they implicitly rejected the findings of the FDNY's own Health Services Bureau, who would not allow F.F. Scialo to return to firefighting duty after his final accident.

After we filed a proceeding in Kings County Supreme Court to challenge the Medical Board's findings, the court remanded the case to the City for a new determination.  Unfortunately, the Medical Board failed to properly credit the evidence that F.F. Scialo was disabled at the time of his application, even when they were directed by the court to reconsider this evidence.  This process continued, and we have initiated a total of four court proceedings against the City in this case, and it has been remanded each time.  In the court's most recent decision, the Honorable Justice Bert Bunyan cautioned the City as follows:

"[T]he Medical Board, and respondents, are cautioned that proffering illegal, unsupported, or previously denied arguments in support of a future denial, if any, shall be tantamount to willful and contumacious conduct that this court will no longer countenance.  Accordingly, the court reserves the right to address such conduct by all available means, including but not limited to the imposition of costs and/or sanctions."

The case is currently pending review by the Medical Board.