Petitioner, a licensed neurologist, commenced the instant proceeding pursuant to CPLR article 78, for review of respondent's decision to remove him from the list of physicians authorized to render medical care to injured individuals under the state Workers' Compensation [*2]program. Respondent opposes the petition, seeking its dismissal. The Court entertained oral arguments on the matter on March 27, 2009.

According to the petition, in May 2008, petitioner was charged by the Office of Professional Misconduct (hereinafter OPMC) with one specification of professional misconduct, namely failure to maintain records. By consent order, petitioner pleaded guilty to the charge of misconduct and, consequently, received the penalty of censure and reprimand, a monetary fine and a three-year term of probation under a practice monitor.

Thereafter, petitioner received a letter from Joseph Salamone, Director of respondent Workers' Compensation Board's (hereinafter the Board) Health Management Bureau, informing him that he had been removed from the list of physicians eligible to render medical care and treatment of those individuals who had sustained work-related illnesses or injuries due to his guilty plea to the specification of misconduct by OPMC. Salamone cited Workers' Compensation Law § 13-d (5) as the statutory authority for the removal and stated that "[t]his determination is final and becomes effective upon receipt of this Notice or five days after mailing, whichever is earlier."^[FN1] Petitioner sought administrative review of the decision to remove him from the provider list, stating that the consent order entered by OPMC did not reflect his ability to treat patients and provided further explanation of the basis for the specification of misconduct. Petitioner added that he had since rectified the record-keeping problem in his office and requested that respondent reconsider its determination.^[FN2] By letter dated September 23, 2008, the Board's General Counsel, Kenneth J. Munnelly, informed petitioner that the determination was final and that his request for reconsideration would not be granted.^[FN3] Petitioner now seeks review of the determination, asserting that the Board acted in an arbitrary and capricious manner when it removed him from the list of physicians authorized to render care to workers' compensation claimants and that his procedural due process rights were violated when the Board denied his request for reconsideration without providing him a hearing.

In reviewing an administrative decision pursuant to an article 78 proceeding, it is well settled that the Court may not substitute its judgment for that of the administrative body unless the determination is arbitrary and capricious, is without a rational basis and constitutes an abuse of discretion.^[FN4] A determination will be deemed arbitrary and capricious or an abuse of discretion where it is made without a sound basis in reason and without due consideration of the facts.^[FN5] Workers' Compensation Law § 13-d (5), recently amended by the state legislature in 2007, provides: [*3]

"Whenever the department of health shall conduct an investigation with respect to charges of professional or other misconduct by a physician which results in a report, determination or consent order that includes a finding of professional or other misconduct or incompetency by such physician, the chair shall have full power and authority to temporarily suspend, revoke or otherwise limit the authorization under this chapter of any physician upon such finding by the department of health that the physician has been guilty of professional or other misconduct. The recommendations of the department of health shall be advisory to the chair and shall not be binding or conclusive upon the chair."

While the statute clearly provides the Chair of the Board complete discretionary authority to remove a physician from the Board's list of eligible providers, such discretionary authority may not be exercised in an arbitrary and capricious manner.^[FN6] On the record submitted by the parties, this Court has no way of deciding whether the Chair, in deciding among the broad range of permissible outcomes, decided to remove petitioner from its provider list in a manner that was arbitrary and capricious or, alternatively, was sound and rationally based. The Court does not disagree with respondent Board's contention that it was within its right to remove petitioner as a workers' compensation provider under the current statutory scheme, however, without a rational explanation as to why petitioner's removal was warranted rather than a temporary suspension or another available penalty, it is impossible to confirm that respondent's decision was indeed made in rational manner.^[FN7] Importantly, this Court "cannot surmise or speculate as to how or why an agency reached a particular conclusion."^[FN8] Respondents' failure to provide an explanation of the facts and considerations it considered in rendering the penalty of removal "forecloses the possibility of fair judicial review and deprives the petitioner of his statutory right to such review." A comprehensive and meaningful review of the Board's decision in this matter is particularly vital in light of the fact that such determination was final and did not afford petitioner with any opportunity for an administrative appeal. Accordingly, it is

ORDERED and ADJUDGED that the petition to annul respondent's determination is hereby granted; and it is further

ORDERED and ADJUDGED that respondents' motion to dismiss the petition is denied it in its entirety; and it is further

ORDERED and ADJUDGED that this matter be remitted to respondents for further proceedings not inconsistent with this Court's Decision and Judgment.

Any remaining contentions have been rendered academic by this Decision and Judgment or otherwise found to be unpersuasive.

SO ORDERED [*4]

ENTER__________________________ ______________

Eugene P. Devine, J.S.C.

Date:May 21, 2009

Albany, New York

cc:Susan C. von Reusner, Esq.