Petitioner ENIDE ST. LOUIS (ST. LOUIS), in this CPLR Article 78 proceeding,

seeks a judgment annulling the February 12, 2009 determination by the Board of Trustees (PENSION BOARD) of respondent NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM (NYCERS), which denied petitioner ST. LOUIS' January 16, 2008 renewed application for disability retirement, in accordance with the May 20, 2008 recommendation of NYCERS' Medical Board (MEDICAL BOARD). Further, petitioner ST. LOUIS requests an [*2]order, pursuant to CPLR § 2307, directing NYCERS to serve and file: all reports, recommendations, certificates, and other documents submitted to NYCERS in connection with her disability retirement application; and, copies of all medical records, reports, or notes related to her that are on file with NYCERS. Respondents NYCERS and THE CITY OF NEW YORK oppose the petition and seek its dismissal.

The instant petition is granted to the extent of: annulling the PENSION BOARD's February 12, 2009 determination with respect to petitioner ST. LOUIS; remanding the matter to NYCERS for a new medical report and findings by the MEDICAL BOARD; and, a new determination by the PENSION BOARD with respect to petitioner ST. LOUIS January 16, 2008 renewed application for disability retirement. Petitioner ST. LOUIS's request for an order, pursuant to CPLR § 2307, is moot. Respondents provided petitioner ST. LOUIS with "[a]ll other documents in petitioner's file not specifically referenced by the Medical Board. [verified answer ¶ 27, note 3 and exhibit 27]."

Petitioner ST. LOUIS, a 42-year-old pediatric Registered Nurse on the staff of

Woodhull Medical and Mental Health Center (a New York City Health and Hospitals Corporation municipal hospital), allegedly sustained, on November 16, 2004, on-the-job injuries to her neck/right shoulder area and went on sick leave [verified petition, exhibit A]. She returned to work at Woodhull in February 2006. On March 4, 2006, she went back on sick leave [verified answer, exhibit 2, response to questionnaire question 10]. By letter, dated November 10, 2006, her employment was terminated, effective October 29,

degrees; lateral rotation — less than 5 degrees each side. No reference

ranges are indicated. Left-sided paraspinous tenderness and scapular

tenderness without evidence of spasm [p. 2].

Lumbar Spine: Lumbar flexion — 10 degrees; lumbar extension — less

than 5 degrees; tilt bilaterally — less than 5 degrees; rotation bilaterally —

less than 5 degrees. Again, no reference ranges are indicated. Bilateral

lumbar paraspinous tenderness without evidence of spasm [p. 2].

Right Shoulder: Forward flexion — 70 degrees; abduction — 80 degrees;

passive internal rotation — 55 degrees; external rotation — 80 degrees.

No reference ranges are indicated [p. 2].

Left Shoulder: Forward flexion — 120 degrees; abduction — 120

degrees; passive internal rotation — 80 degrees; external rotation —

45 degrees [p. 2].

Muscle Strength: "Maximum muscle strength was 3/5 with give way;"

grip strength (left) — 20 pounds (first trial) and 15 pounds (second

trial); grip strength (right) — 0 pounds (first trial) and 2 pounds (second

trial). The report notes: the intrinsic muscles of the hands were well-

developed; the upper or lower extremities were not atrophied; and,

Tinel's sign was negative, although the report gives no indication

which parts of the body were tested [pp. 2 - 3]. Further, the report

finds "[t]here was a non-anatomical loss of sensation on the entire

right hand and on the dorsal surface of the forearm compared to

the left, which the applicant also stated felt different but not as numb

[p. 2]."

Knees/Hips: Lower extremity muscle strength of: (left) 5/5 and

(right) "3 to 3+/5 with give way," quadriceps at 4/5 and hamstrings,

dorsiflexion, and plantarflexion at 5-/5. The axial load test with

minimal pressure was positive for left-sided neck pain radiating [*4]

down to the lower back [pp. 2 - 3].

Deep Tendon Reflexes: 1+ for: biceps, triceps; brachioradialis

bilaterally; trace patellar; and, Achilles bilaterally [pp. 2 - 3].

Moreover, the MEDICAL BOARD expressly incorporated by reference the

findings and conclusions of its initial October 16, 2007-report and the interim reports of February 26, 2008 and April 22, 2008 [verified petition, exhibits B, C, and D]. The two

interim reports expressly incorporate by reference the October 16, 2007-report. With respect to the interim reports, the MEDICAL BOARD did not examine or test

petitioner.

The Court finds it helpful to compare the October 16, 2007 and May 20, 2008 findings side by side and has done so in Appendix A to this decision and order. Appendix A reflects, among other things, that petitioner ST. LOUIS's range of motion (ROM) measurements for her cervical spine and her right shoulder deteriorated from the October 16, 2007 examination by the MEDICAL BOARD to the May 20, 2008 examination by the MEDICAL BOARD.

The Court's function in a CPLR Article 78 proceeding is to determine whether the action of an administrative agency had a rational basis or was arbitrary and capricious. (Matter of Borenstein v New York City Employees' Retirement System, 88 NY2d 756, 760 [1996]; Pell v Board of Educ. of Union School District No.1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 230-231 [1974]). "Arbitrary action is without sound basis in reason and is generally taken without regard to the fact." (Pell at 231). A rational basis exists where the determination is "[supported] by proof sufficient to satisfy a reasonable [person], of all the facts necessary to be proved in order to authorize the determination." (Ador Realty, LLC v Division of Housing and Community Renewal, 25 AD3d 128, 139-140 [2d Dept 2005], quoting Pell at 231). Further, a reviewing court will not substitute its judgment for that of the agency unless the agency's determination is arbitrary, capricious, or contrary to law. (See Pell at 231; Matter of Brockport Cent. School Dist. v New York State & Local Employees' Retirement System, 270 AD2d 706, 707-708 [3d Dept 2000]).

The MEDICAL BOARD'S determination must be supported by "substantial

evidence," which in the disability context has been interpreted to require "some credible evidence." (Matter of Meyer v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 147 [1997], rearg denied 90 NY2d 936 [1997]). (See Harrison v Scopetta, 59 AD3d 545 [2d Dept 2009]; Zamelsky v New York City Employees' Retirement System, 55 AD3d 844 [2d Dept 2008]; Matter of Clarke v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 46 AD3d 559 [2d Dept 2007]). "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 at 147). The requirement of " [s]ome credible evidence' strikes a proper balance between deference to the Medical Board and accountability to NYCERS members." (Matter of Borenstein at 761).

In the instant action, the MEDICAL BOARD's recommendation to the PENSION

BOARD to deny disability retirement to petitioner ST. LOUIS lacks a rational basis. A new disability retirement determination for petitioner ST. LOUIS is required.

Meanwhile, the MEDICAL BOARD found in its May 20, 2008-reconsideration report that petitioner ST. LOUIS: suffered from a "loss of sensation on the entire right hand and on the [*6]dorsal surface of the forearm compared to the left"; had almost no range of motion in her cervical spine; and, had a limited range of motion in her lumbar spine [verified petition, exhibit D, p. 1 - 2]. Therefore, the MEDICAL BOARD's own findings that petitioner ST. LOUIS was not disabled from performing her duties as a staff nurse is

not rational. (See Matter of Rodriguez v Board of Trustees of New York City Fire Dept., Art. 1-B Pension Fund, 3 AD3d 501, 502 [2d Dept 2004]). The MEDICAL BOARD did not explain how petitioner ST. LOUIS, who had no feeling in her right hand, who could not move her neck, and whose maximum lumbar movement was only a ten-degree flexion, was fully capable of performing the practice of nursing, including the "diagnosing and treating [of] human responses to actual or potential health problems." (See Matter of Samadjopoulos, at 3 - 4).

The MEDICAL BOARD's disingenuous conclusion is contradicted by the opinion of an independent orthopaedic surgeon, Andrew Miller, M.D., who, in connection with petitioner ST. LOUIS' workers' compensation claim examined her on April 17, 2008, approximately one month before her reevaluation by the MEDICAL BOARD [verified petition, exhibit P]. Dr. Miller, in his independent medical examination report of the same date, opined that "[b]ased on my evaluation the claimant is not capable of working as a registered nurse at this time. She is capable of working performing sedentary duties with restrictions on prolonged standing, bending, twisting and lifting weight greater than 10 lbs. [verified petition, exhibit P, p. 4]."

Third, the MEDICAL BOARD considered only those tests and reports that supported its denial and ignored those tests and reports that contradicted its position. By way of illustration, the MEDICAL BOARD selectively quoted from Dr. Richard L. Parker's statement, in his March 10, 2008-report, that "[m]otor strength was found to be 5/5 in all muscle groups [verified petition, exhibit C, April 22, 2008-interim report, at p. 2]." A full review of Dr. Parker's March 10, 2007-report [verified answer, exhibit 19] indicates that this refers only to muscle groups in the lumbar spine. Further, Dr. Parker, at p.1 of his report, found petitioner's "[m]otor strength is 3/5 in the right shoulder." Further, the MEDICAL BOARD completely overlooked Dr. Parker's assessment of, and plan for, petitioner ST. LOUIS, including that she was suffering from a torn rotator cuff in her right shoulder and needed arthroscopic surgery to address it. Dr. Parker stated, at p. 2 of his report:

ASSESSMENT: Cervical Spine Herniated Nucleus Pulposus

Cervical Spine Radiculopathy, Right

Cervical Spine Myofascial Strain/CS Disorder

Lumbar Spine Herniated Nucleus Pulposus

Lumbar Spine Radiculopathy, Right

Lumbar Spine Sciatic Syndrome, Right

Right Shoulder Tear, Rotator Cuff

Right Shoulder Impingement Syndrome

PLAN: [T]he patient is recommended an MRI of the right shoulder,

an arthroscopy of the right shoulder, and epidural steroid injections

times three to the cervical spine and epidural steroid injections times

three to the lumbar spine.

Another example of the MEDICAL BOARD's selective quoting deals with July 6, 2007-MRI report of petitioner ST. LOUIS' right shoulder. The MEDICAL BOARD, in its February [*7]26, 2008-interim report [verified petition, exhibit B, p. 3], stated that this MRI report showed "tendinopathy of the supraspinatus tendon." However, the July 6, 2007-MRI report stated, in full, that petitioner ST. LOUIS suffered from "[h]ypertrophic changes in the acromioclavicular joint with supraspinatus impingement" and, an "[i]ncreased signal in the supraspinatus tendon consistent with a tendinopathy [verified petition, exhibit F, July 6, 2007-MRI report]."

Fourth, while the MEDICAL BOARD'S recommendation remained the same in

both the initial and the reconsideration reports, its supporting findings became more tenuous, particularly with respect to petitioner ST. LOUIS' neck/right shoulder area. As shown in Appendix A, petitioner ST. LOUIS's decreased ROM measurements for her neck and right shoulder became even more pronounced from the MEDICAL BOARD's October 16, 2007 examination of petitioner ST. LOUIS to the MEDICAL BOARD's May 20, 2008 examination of petitioner ST. LOUIS. These undisputed ROM restrictions further demonstrate the irrationality of the MEDICAL BOARD's recommendation that petitioner ST. LOUIS be denied disability retirement.

Accordingly, it is

ORDERED, that the petition of petitioner ENIDE ST. LOUIS is granted to the extent that: the February 12, 2009 determination of respondent THE NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM PENSION BOARD, which denied petitioner ENIDE ST. LOUIS' January 16, 2008 application for disability retirement, is annulled; the instant matter is remanded to THE NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM for a new medical report and findings by the MEDICAL BOARD of respondent THE NEW YORK CITY EMPLOYEE'S RETIREMENT SYSTEM; and, a new determination by the PENSION BOARD of respondent THE NEW YORK CITY EMPLOYEE'S RETIREMENT SYSTEM, with respect to petitioner ENIDE ST. LOUIS' January 16, 2008 application for disability retirement.

This constitutes the Decision and Order of the Court.

ENTER

____________________________

HON. ARTHUR M. SCHACKJ. S. C.