Upon the foregoing papers in this CPLR article 78 proceeding, petitioner George J. Quinn, Jr., seeks: (1) a judgment reviewing and annulling the determination of respondents Salvatore Cassano, as the Fire Commissioner of the City of New York and as the Chairman of the Board of Trustees of the New York City Fire Department (FDNY) Article 1-B Pension, the Board of Trustees of the FDNY and the City of New York which denied him an accident disability retirement pursuant to the New York City Administrative Code (the Administrative Code) §§ 13-353, 13-353.1 and 13-354; declaring said determination to be arbitrary, capricious, unreasonable and unlawful; and remanding the matter to respondents for further review; and (2) an order, pursuant to CPLR 2307(a), directing respondents to [*2]serve and file all reports, recommendations, certificates and other documents submitted to the Board of Trustees and to the Medical Board in connection with petitioner's disability retirement applications; copies of the minutes of each meeting of the Board of Trustees wherein the Board considered, discussed or acted upon petitioner's retirement applications; and copies of any and all records, reports or notes relating to petitioner which are on file with or contained in his file with the Article I-B Pension Fund and/or FDNY.

Petitioner passed the physical and mental examinations administered by the FDNY which demonstrated that he was physically and mentally fit to perform full duties as a firefighter; he was appointed to the uniformed force of the FDNY on November 20, 1982 and served continuously until his retirement. Pursuant to Administrative Code §§13-313 and 13-314, petitioner was a member of the Pension Fund and made all contributions thereto as required by law.

On September 11, 2001, petitioner was a first responder to the World Trade Center (WTC) attack and for days thereafter, was assigned to the rescue, recovery and clean-up operations; there is no dispute that petitioner participated in these efforts. Petitioner alleges that as a result of his participation, he has been diagnosed with asthma and reactive airway disease syndrome. Accordingly, on September 4, 2008, he filed service-connected disability retirement applications under Administrative Code § 13-353.1 (the WTC Bill), indicating that he suffers from asthma. The Fire Commissioner filed applications for a service-incurred disability retirement under Administrative Code §§ 13-353 and 13-354. On July 3, 2008, petitioner retired from the FDNY with a service pension after 26 years of City service.A review of petitioner's medical history, as it pertains to his application to retire because of asthma,^[FN1] reveals that on August 6, 2008, petitioner underwent a methacholine bronchochallenge test at Long Island Jewish Medical Center. By report dated August 13, 2008, Mark J. Rosen, M.D., noted that the findings were "consistent with, but not diagnostic of" asthma. On September 5, 2008, petitioner underwent a CT scan of his chest; the report indicated that petitioner suffered from boarder line thickening of the bronchial wall, without evidence for bronchial dilation, mucoid impaction or air trapping, and calcified atherosclerosis of the coronary arteries. On October 2, 2008, petitioner was examined by the Bureau of Health Services (BHS) of the FDNY Medical Board Committee to evaluate his fitness to perform full fire fighting duties. The report for that exam stated that he had a vital capacity that was 101% of predicted, a force expiratory volume at one second (FEVI) that was 89% of predicated and a decline in FEVI at 4 mg/ML of methacholine, "which, in combination with his symptoms, confirmed the diagnosis of reactive airways disease." The report also noted that petitioner had been maintained on inhaled beta-agonists and [*3]corticosteroids with significant symptomatic improvement. The Committee recommended that petitioner was permanently unfit for firefighting duties, diagnosing him as suffering from asthma with airway reactivity.

Thereafter, the 1-B Medical Board (the Medical Board) reviewed petitioner's application for disability retirement on four occasions. The first report, dated November 6, 2008, indicated that the Medical Board reviewed petitioner's medical records, including the BHS report of October 2, 2008, the Bronchochallenge report dated August 13, 2008, a Pulmonary Function Test (PFT) report dated August 6, 2008 and Dr. Jerome Zisfein's report dated July 24, 2008; the Board referred petitioner to the Rusk Institute for a PFT. The December 8, 2008 report for that test stated that "although baseline FEV1 was within normal limits, there is suggestion of obstructive dysfunction evidenced by reduced FEV1/FVC ratio, reduced airflows at mid and low lung volume, and response to bronchodilator."

In its second report, dated December 11, 2008, the Medical Board noted that the PRT that petitioner underwent on December 8, 2008 was "performed in an outstanding fashion after being off all inhaled medication for a period of four weeks. These studies are normal." The Board stated that examination of petitioner demonstrated that he has "mild intermittent asthma" and referred him to St. Francis Hospital for a cardio-pulmonary stress test with cold air. On February 13, 2009, petitioner underwent that test; the report indicated that testing revealed normal exercise work tolerance and that he had a functional fitness level of mild disease, although the ECG finding were most consistent with normal function, as there was no significant reduction in flows after the performance of exercise with cold air.

In its third report, dated April 16, 2009, the Medical Board considered these results and denied petitioner's disability applications, stating that "[i]t is noteworthy that with breathing cold air there was normal response. There was no evidence of impairment of the ventilatory reserve."

On June 5, 2009, petitioner consulted Denise Janus, M.D., who is board-certified in internal medicine and who found that testing indicated mild airway obstruction and a positive bronchodilator response in the small airways; she concluded that petitioner suffers from asthma/reactive airway disease and cannot perform full fire duty. On June 20, 2009, petitioner was again examined by Dr. Weiden at the BHS; his report stated that petitioner is permanently disabled from fire duty based on his asthma. By letter dated June 23, 2009, petitioner's attorney requested that the Board of Trustees remand petitioner's case to the Medical Board based on this new medical evidence. On July 23, 2009, the Medical Board again denied petitioner's disability applications, stating that the Board reviewed the new submissions and again found that petitioner "has mild intermittent asthma, which does not preclude full firefigthing." By letter dated August 31, 2009, petitioner's attorney requested that the Board of Trustees again remand petitioner's case to the Medical Board based on the alleged cursory review of the medical evidence. On September 2, 2009, the Board of Trustees reviewed petitioner's case, noted the Medical Board's denial of his application for a service-connected disability retirement and denied his application. [*4]

In a supplemental petition, petitioner asserts that on March 27, 2010, he was evaluated by Dr. Weiden. In his report, Dr. Weiden stated that petitioner suffered from asthma and reactive airway disease, which is confirmed by the methocholine challenge test conducted on August 13, 2008; he also noted that petitioner suffers from shortness of breath, chest tightness, episodic acute bronchitis, fatigue, episodic asthma, wheezing and coughing. A CT scan of his chest taken on April 1, 2010 indicated that there was airway inflammation. Further, petitioner was awarded social security disability benefits on April 13, 2010 because of his asthma and restrictive airway disease. Petitioner accordingly contends that this new evidence establishes that his lung condition prevents him from performing the full duties of a fire captain.

In support of his application, petitioner argues that the action of the Board of Trustees in denying him a service-connected disability retirement has resulted in him receiving a retirement allowance which is substantially less than that to which he is entitled, in that a service-connected disability retirement pension is comprised of 75% of his final pay pursuant to Administrative Code § 13-258. He accordingly contends that respondents' determination to deny his application for a service-connected disability retirement pension is arbitrary, capricious, unreasonable, unlawful and contrary to the provisions of the Constitution of the United States and the State of New York statutes, laws, ordinances, rules and regulations applicable to these circumstances in that the Medical Board failed, neglected and refused to use the proper legal test of entitlement and that the determination was contrary to the competent evidence.

In opposition to the petition, respondents argue that petitioner fails to demonstrate that he is entitled to disability retirement in that the determination that he is not disabled, as made by the Medical Board, is supported by credible evidence on the record and is binding on the Board of Trustees. Moreover, the court cannot substitute its judgment on medical issues for that of the Medical Board, so that the determination must be upheld.

An application for accidental disability retirement involves a two-tier administrative process:

"A firefighter is entitled to accidental disability retirement when a medical examination and investigation shows that he or she is physically or mentally incapacitated for the performance of city-service as a natural and proximate result of an accidental injury received in such city-service' (Administrative Code § 13-353). . . . Following a medical examination (which in each of these cases was conducted by the Fire Department medical committee), the three-physician member pension fund Medical Board, charged with passing upon all such required medical examinations and investigating all essential information in connection with a disability retirement application (see, Administrative Code § 13-323), [*5]determines whether the member is disabled for performance of duty and ought to be retired (Administrative Code § 13-352)."

(Meyer v Board of Trustees of the NY City Fire Dept., 90 NY2d 139, 144 [1997]).

Generally, the burden rests with the applicant to demonstrate that he or she is disabled from firefighting service and is entitled to a disability retirement (see e.g. Matter of Nemecek v Board of Trustees of the NY City Fire Dept., Art. 1-B Pension Fund, 99 AD2d 954, 955 [1984]), and that a causal relationship exists between the service-related accident and the claimed disability (Wesarg v Board of Trustees of the NY City Fire Dept., Article 1-B Pension Fund, 246 AD2d 601 [1998]; Causarano v Board of Trustees of NY City Fire Dept, 178 AD2d 474 [1991]). As is relevant to the issue now before the court, however, the WTC Bill (Administrative Code § 13-353.1) creates a presumption which specifically applies to firefighters who participated in operations at the World Trade Center site after September 11, 2001 and who suffered impairments to their health as a consequence of that work.^[FN2] This presumption specifically includes bronchitis, asthma and hyper-reactive airway dysfunction syndrome (Administrative Code § 13-353.1 [1] [c]).^[FN3]

"Whether a firefighter is disabled is determined by the Medical Board of the New York City Fire Department, Article 1-B Pension Fund [and its] determination that a firefighter is not disabled for duty is conclusive if it is supported by some credible evidence and is not irrational" (Matter of Campbell v Board of Trustees of NY City Fire Dept., Article 1-B Pension Fund, 47 AD3d 926, 927 [2008], lv denied 10 NY3d 715 [2008] [citations omitted]; accord Matter of Kuczinski v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund Civil Service, 8 AD3d 283, 284 [2004]; Matter of Rodriguez v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 3 AD3d 501, 501 [2004] ). In discussing the evidentiary standard that must be met, the court has explained that "credible evidence is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered" (Matter of Vastola v Board of Trustees of the NY City Fire Dept., Art. 1-B Pension Fund, 37 AD3d 478 [2007]); it "must be evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion" (Matter of Meyer, 90 NY2d at 147 [citations omitted]). "An articulated, rational, and fact-based medical opinion" constitutes credible evidence (Id. at 148 [citations omitted]), as does the [*6]Medical Board's "detailed and fact-based report, explaining the basis for its conclusion" (Id. at 152). Further, " fairness demands that all available relevant medical evidence be considered by the medical board and the board of trustees before petitioner's claim to accident disability retirement may properly be rejected'" (Matter of Kiess v Kelly, 75 AD3d 416, 417 [2010], quoting Matter of Kelly v Board of Trustees of Police Pension Fund, Art. II, 47 AD2d 892, 893 [1975]).

Thus, given the Medical Board's sole authority to make the ultimate disability determination with respect to a firefighter's application for disability retirement, a contrary conclusion as to disability by the BHS does not, in and of itself, render the Medical Board's determination arbitrary and capricious (see generally Matter of Nemecek, 99 AD2d at 954-955). Similarly, "where conflicting medical evidence and medical reports are presented to the Medical Board, it is solely within its province to resolve such conflicts" (Matter of Clarke v Board of Trustees of NY City Fire Dept., Article 1-B Pension Fund, 46 AD3d 559, 560 [2007]; Matter of Kuczinski, 8 AD3d at 284). It is also well established that "[t]he court cannot weigh the medical evidence and substitute its own judgment for that of the Medical Board" (Matter of Campbell, 47 AD3d at 928, citing Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 761 [1996]; Matter of Vastola, 37 AD3d at 478; Matter of Kuczinski, 8 AD3d at 284). Finally, the Board of Trustees cannot make an independent determination regarding disability (see e.g. Matter of Borenstein, 88 NY2d at 760).

It must also be recognized, however, that determinations of the Medical Board and the Board of Trustees have been remanded where the medical evidence did not sustain the determination, the record did not reveal a rational evaluation of the medical evidence, or where the basis of a determination was not adequately articulated (see e.g. Matter of Stack v Board of Trustees, 38 AD3d 562 [2007]; Matter of Rodriguez, 3 AD3d 501; Matter of McAdams v Kelly, 17 Misc 3d 1112 [A] [2007]; Matter of Weller v Kelly, Index No. 109357/2006 [2009]; Matter of Brady v Board of Trustees NY City Police Pension Fund, 2008 NY Slip Op 32529[U] [2008]). Further, despite the wide latitude afforded to the Medical Board in rendering its accident disability determinations, a number of recent trial court decisions have remanded denials for further proceedings or more detailed findings where the determination lacked any explicit discussion or evaluation of the evidence considered. For example, in Matter of Tesoriero v Board of Trustees of New York Fire Department., Art. 1-B Pension Fund (17 Misc 3d 497 [2007]), the court, by the Hon. Larry Martin, remanded the matter, holding that:

"On the record . . . this court finds that the Medical Board's determination is not credible since its scant six-sentence determination is devoid of any articulated basis for concluding that mild intermittent asthma' is not a disabling condition for a firefighter. Such findings are wholly conclusory without any explanation of the characteristics of mild intermittent asthma,' the performance requirements for a firefighter, or an assessment of any risk that mild intermittent asthma,' may pose to the safety of the petitioner and his colleagues [*7]while performing his duties as a firefighter. Moreover, the report fails to identify any specific medical literature or other documentation which supports the Medical Board's claim of non-disability, nor does the Medical Board explain the apparent inconsistency within its expert's reports, i.e., that petitioner has obstructive airway dysfunction' and bronchial hyper-reactivity, that pulmonary studies are essentially normal' with small airway dysfunction,' and that petitioner has mild intermittent asthma" although he is not disabled. Therefore, while the Medical Board's report is binding upon the Board of Trustees, since the Medical Board's report is not credible, it is insufficient."

(Id. at 503-504 [citations omitted]).

Similarly, in Matter of Marley v Board of Trustees of New York Fire Dept., Art. 1-B Pension Fund (15 Misc 3d 1068 [2007]), the court, by the Hon. Jack Battaglia, annulled the findings of the Medical Board with respect to petitioners' respective applications for accident disability retirement benefits by reason of mild intermittent asthma and remitted the matters, holding that:

"[T]he Medical Board's determinations as to petitioners . . . [are] completely devoid of any articulated basis for concluding that mild intermittent asthma' is not a debilitating or incapacitating condition for firefighting. As previously noted, the determinations are purely conclusory. There is no description of the performance requirements of firefighting, no description of the characteristics of mild intermittent asthma,' and no assessment of any risk that the diagnosed condition will threaten the safety of any person during the anticipated course of firefighting. At the least, the Medical Board's determinations are not in such form as to allow adequate judicial review . . .

"A statement of no evidence,' assuming it is a correct characterization of the Medical Committee's assessment and other professional materials discussed above, cannot substitute for the exercise and articulation of the expert scientific' judgment that has been found to warrant near-conclusive deference to the Medical Board's determination. The court would not presume to say that the Medical Board did not exercise that judgment on petitioners' applications, but it has no difficulty concluding that it cannot be found in the written determinations or elsewhere in this record."

(Id. at 1074-1075).

In Matter of Rocco v Scopetta (15 Misc 3d 1146[A], 2007 NY Slip Op 51179[U] [2007]), the court, by the Hon. Ira Harkavy, similarly remanded the matter, holding that:

"A determination of the Pension Fund Medical Board can not be said to be rational where the medical issues presented by the applicant are not adequately addressed by the Medical Board or where the medical findings do not sustain the determination of the Medical Board. The Pension Fund Medical Board is obligated to explain it's [sic] determination and provide some basis for judicial review. . . . [*8]

"The court finds that the determinations of the Medical Board and the Board of Trustees in the instant matter should be set aside, and that the matter should be remanded for their further consideration. Taken together, the reviews of the Medical Board can only be viewed as conclusory. An examination of the records leads this court to conclude that the Medical Board considered only those tests and reports that supported its denial and ignored those tests and reports that contradicted its position without explanation. Accordingly, its reviews are insufficient to establish that the Medical Board's recommendations and the Board of Trustee's determinations were based on credible evidence. . . .

"For the court to find that the determination of the Pension Fund Medical Board was based upon credible evidence, the Pension Fund Medical Board must do more than simply identify reports and tests and state its conclusion. Further, where there is seemingly conflicting medical evidence, the Medical Board must address that evidence and explain why the evidence it discounts is not valid, and why the evidence it relies upon is more persuasive. To the extent that certain medical evidence seems to contradict the conclusion of the Medical Board, if the Board believed those opinions and diagnoses were incorrect, the Medical Board was obligated to explain why. Without such, the court can not say the recommendation of the Medical Board and the determination of the Board of Trustees was based on credible evidence."

(2007 NY Slip Op 51179[U], *7, *9).

Here, the court finds that the determination of the Medical Board suffers from the same infirmities discussed in Matter of Tesoriero (17 Misc 3d 497), Matter of Marley (15 Misc 3d 1068) and Matter of Rocco (15 Misc 3d 1146[A]). More specifically, in its first report, dated November 6, 2008, the Medical Board did nothing more than list the medical records that were allegedly considered and asked petitioner to have a PFT completed. If the Medical Board did, in fact, actually consider the reports, it fails to advise the court of its reliance upon or rejection of the findings and recommendations contained therein, particularly since the report from the BHS confirmed a diagnosis of asthma and reactive airways disease and found that petitioner was permanently unfit for firefighting duties.

In its second report, dated December 11, 2008, the Medical Board noted that the pulmonary studies requested "were performed in an outstanding fashion" and in one sentence, concluded that petitioner has mild intermittent asthma and referred him for a cardiopulmonary test. This report is particularly troublesome in that a review of PFT results reveals that the report stated "outstanding effort and cooperation," which statement does not support a finding that petitioner is able to perform the duties of a firefighter. Moreover, the Medical Board again failed to discuss any of the findings upon which it based its conclusion that petitioner is not disabled, particularly since the report for the PFT found a "suggestion of obstructive dysfunction evidenced by reduced FEV1/FVC ratio" and reduced air flows. [*9]

In its third report, dated April 16, 2009, in addressing the results of the requested cardiopulmonary stress test, the Board stated that "[i]t is noteworthy that with breathing cold air there was normal response. There was no evidence of impairment of the ventilatory reserve" and concluded, again in one sentence, that petitioner's application for disability retirement be denied. This report, however, failed to address the findings of the test, which revealed that petitioner had "a functional fitness level of mild disease." Finally, in its fourth report, dated July 23, 2009, following a remand from the Board of Trustees, the Medical Board listed the additional medical data that was submitted, stated that the documents were reviewed and again concluded, in one sentence, that petitioner "has moderate intermittent asthma, which does not preclude full firefighting," again ignoring Dr. Janus' opinion that petitioner suffered from asthma and reactive airway disease that rendered him unable to perform full fire fighting duties and Dr. Weiden's opinion that petitioner was permanently disabled by reason of his asthma.

Thus, while recognizing that the court is precluded from second guessing the conclusions of the Medical Board and substituting its own judgment, given the necessity of a finding by the court that some credible evidence exists in order to uphold the determination of the Medical Board, this court will not resort to speculation, conjecture and unsupported assumptions with respect to the evidence that was relied upon by the Medical Board in reaching its conclusion. Further, the conclusory findings of the Board preclude the court from determining if the Board actually weighed the conflicting evidence and addressed the evidence submitted by petitioner which supported his disability claim. This is especially true where, as here and in the Tesoriero case, the Medical Board finds that petitioner is suffering from mild intermittent asthma, but then, without explanation, concludes that the condition is not disabling with respect to his active firefighting duties. Accordingly, as was true in Matter of Tesoriero and Matter of Marley, there is no "explanation of the characteristics of mild intermittent asthma,' the performance requirements for a firefighter, or an assessment of any risk that mild intermittent asthma,' may pose to the safety of the petitioner and his colleagues while performing his duties as a firefighter" (Matter of Tesoriero, 17 Misc 3d at 503; Matter of Marley, 15 Misc 3d at 1074).

In addition, the Medical Board must do more than simply identify reports and tests and state its conclusion; it must address the evidence before it and explain why the evidence it discounts is not valid, and why the evidence it relies upon is more persuasive, explaining why the opinions and diagnoses that are not relied upon are incorrect (Matter of Rocco, 2007 NY Slip Op 51179[U], *22). Most significant in this regard is the fact that although petitioner's medical records indicate that he also suffers from restrictive airway disease, none of the Medical Board's four reports mention this condition. Accordingly, it is clear that the Medical board failed to address the issue of whether this condition is itself a disability, and/or whether it contributes to or worsens petitioner's asthma, so as to entitle him to a disability retirement. For these reasons, the court concludes that the determination of the Board of Trustees and the Medical Board must be set aside. [*10]

In so holding, the court declines to consider the additional submissions relied upon by petitioner in his Amended Petition, since it is well settled that judicial review of an administrative determination is limited to the record adduced before the agency (Wolyniec v Board of Trustees of NY City Fire Dept, Article 1-B Pension Fund, 232 AD2d 495, 496 [1996], citing Matter of Montalbano v Silva, 204 AD2d 457, 458 [1994]; Matter of Plaza Realty Investors v New York City Conciliation & Appeals Bd., 110 AD2d 704 [1985]).^[FN4]

Similarly, the court declines to order respondents to produce any additional documents, since it appears that a complete record was filed with their answer and petitioner does not identify any documents that he believes have not been produced.

Accordingly, since it does not appear that the Medical Board considered all of the submitted medical evidence, and since the reasons for concluding that petitioner is medically fit for firefighting are not clearly stated in the Medical Board's reports, the determination of the Medical Board is annulled with respect to petitioner's application for accident disability retirement benefits and the matter is remitted to the Board of Trustees for new medical

reports, new findings by the Medical Board and a new determination by the Board of Trustees.

The foregoing constitutes the decision, order and judgment of the court.

E N T E R

J. S. C.