Thiscasestems from the disabling injury that petitioner, a former New York City Fire Department (FDNY) lieutenant, initially appointed September 29, 1973 as a firefighter, suffered regarding his left shoulder, groin and lower back on July 23, 2002. Petitioner, who had previously sustained line of duty injuries, reported having slipped that day on water-soaked debris, described as hundreds of beverage bottles, hidden below a floor's water [*2]surface, while supervising the advancement and operation of a hose line in heavy smoke and fire.^[FN1]

EMS personnel transported petitioner to the Long Island Jewish Medical Center Emergency Room that day, according to the departmental injury report, where a Dr. Venezia treated and released him. The injury report also notes that Dr. Kelly of the FDNY diagnosed petitioner as suffering bilateral inguinal ^[FN2] hernias, a left shoulder sprain/strain and numbness in his lower back and feet. An August 12, 2002 MRI of petitioner's left shoulder, taken for the FDNY's Bureau of Health Services (BHS), showed "no demonstrable fracture or dislocation," the biceps tendon in normal position, unremarkable surrounding musculature and labra ^[FN3] as well as no joint effusion. Such findings yielded a normal study impression.

Medical and Retirement History

FDNY's BHS had concurrently referred petitioner to Dr. Kenneth Einberg, a neurologist, board-certified by the American Board of Psychiatry and Neurology. Dr. Einberg also examined petitioner on September 9, 2002 in view of petitioner's one-year history of neck pain and "more recent eight[-]week history of paresthesias ^[FN9] and sensory disturbance involving the soles of both feet." Dr. Einberg's neurological examination, which found petitioner's sensory system intact to light touch and pin prick except in the right L5 dermatome ^[FN10] region, yielded no clinical evidence suggesting polyneuropathy.^[FN11]

However, Dr. Einberg viewed the examination, in the context of petitioner's medical history, as "highly suggestive of right greater than left L4[-]5/L5-SI radicular ^[FN12] dysfunction expressing itself in a pseudo neuropathic ^[FN13] form." He therefore recommended neuroimaging focused upon the lumbosacral spine as well as EMG [i.e., an electromyogram ^[FN14]] and NCV [i.e., nerve conduction velocity] testing to confirm the above diagnosis.^[FN15] [*4]

Petitioner submitted an ADR/LOD application the next day, September 10, 2002,^[FN16] which cited neck and lower back pain, numbness in both feet, constant left shoulder pain and weakness as reasons he could no longer perform the duties of his title. He claimed such conditions made him "unable to bend down or reach overhead to pick up E[meregency] M[edical] S[ervices] victims/injured members or equipment/SCBA [i.e., self-contained breathing apparatus]." Right knee and ankle instability, he also claimed, prevented him from walking on uneven surfaces, ladders and stairs and together with groin pain and discomfort "precludes crouching or crawling as well as lifting or straining heavy objects or persons." Petitioner attributed his disability to right ankle injuries in 1993 and 2000; right knee injuries in 1982 and 1983; neck injuries in 1983 and 2001; and left shoulder, groin and lower back injuries on July 23, 2002.

Dr. Raymond A. Shebairo, a board-certified orthopedic surgeon, examined petitioner two days later on September 12, 2002 and found an impingement syndrome. He noted that an MRI of petitioner's lumbar spine showed evidence of a herniated disc at the L4-5 level and an MRI of petitioner's left shoulder indicated no evidence of soft tissue injury. Dr. Shebairo awaited petitioner's neurological evaluation, sought a repeat MRI of the left shoulder considering the severity of petitioner's symptomatology and concluded that "at the present time, [petitioner] is totally disabled and unable to work."^[FN17]

A repeat MRI of petitioner's left shoulder on September 26, 2002 revealed "findings consistent with a tear of the distal supraspinatus tendinous portion of the rotator cuff . . ."^[FN18] An October 3, 2002 EMG performed at Dr. Shebairo's request, according to Dr. Einberg,^[FN19] showed both "electrophysiologic evidence of bilateral L5[-]S1 radicular dysfunction, which [*5]has resulted in a moderate to severe degree of secondary motor axon ^[FN20] degeneration . . . [and] no electrophysiologic evidence of a polyneuropathy."^[FN21]

Dr. Shebairo thereafter reexamined petitioner on October 29, 2002. The resulting addendum report noted the "significant bilateral L5-S1 radiculopathy" revealed in the EMG studies, "evidence of a tear of the supraspinat[]us tendon" revealed by the September 26, 2002 MRI and his own shoulder examination that produced findings consistent with impingement and possible rotator cuff injury. That injury, he felt, "will require surgical intervention [and petitioner's] low back condition is severe with EMG evidence of nerve compression." Consequently, Dr. Shebairo concluded that petitioner "is totally disabled and unable to perform the duties of a firefighter." He added that "[t]hese injuries in my opinion are permanent in nature and are a result of his accident of 7/23/02."^[FN22]

Dr. Shebairo again examined petitioner on April 3, 2003, noting that "[h]e is totally disabled," and on June 9, 2003, reiterating that "this patient is disabled and unable to work as a firefighter."^[FN25] The June 9, 2003 report mentioned "episodes of severe instability causing him to drop objects," and continued paresthesias (i.e., burning, see fn 9) down the legs with occasional giving way and buckling of his knee."^[FN26]

[*6]The Medical Board's Initial Review of Petitioner's Case

Three other physicians, separate from the FDNY Medical Committee, sitting as the FDNY's Pension Fund Medical Board (Medical Board)^[FN27] thereafter reviewed petitioner's medical file and initially considered both the ODR and ADR applications on October 8, 2003.^[FN28] The Medical Board then referred petitioner to its neurological consultant, Dr. Richard Raynor, regarding the lumbar spine issue and if not found disabled, then to its orthopedic consultant, Dr. Basil Dalavagas.

Dr. Raynor examined petitioner on October 21, 2003. A resulting letter, dated October 28, 2003, from Dr. Raynor to the Medical Board Chairperson, reported that petitioner primarily complained about pain in his lower back, just below the belt line, radiating into the right calf and, much less frequently, into the left with the accompanying description of his feet feeling "as if they are on fire."

The letter separately highlighted that petitioner suffered from hypertension and had taken medication for that condition for several years. Dr. Raynor also mentioned in his letter having reviewed the September 2002 MRI of petitioner's lumbar spine, but, unlike the Modern Medical Imaging Report (see fn 8), he saw no disc herniations.

He also referenced the October 3, 2002 electrodiagnostic examination that showed secondary motor axon degeneration and referred petitioner for another EMG on October 23, 2003. The report of that referral to Dr. Peter B. Saadeh,^[FN29] unlike Dr. Einberg's October 2002 [*7]report (see fn 19), concluded with an electrophysiologic impression of "[a]bnormal EMG consistent with an axonal sensorimotor peripheral polyneuropathy."^[FN30]

Dr. Raynor, in turn, concluded his October 28 letter to the Medical Board Chairperson by stating that "[a]n electrodiagnostic examination is consistent with a peripheral neuropathy. Based on all of this evidence it does not appear that the patient's complaints are secondary to spinal disease but may have a metabolic origin."^[FN31]

Dr. Dalavagas thereafter examined only petitioner's left shoulder on November 21, 2003, reviewed the August and September 2002 left shoulder MRIs, not the September 2002 MRI of petitioner's lumbosacral spine, and found "minimal functional deficit." He concluded that petitioner "is not permanently disabled for the performance of full fire duty."^[FN32]

The Medical Board's Second Review of Petitioner's Case

The Medical Board reviewed both Dr. Dalavagas' and Dr. Raynor's reports and expressed the unanimous opinion that petitioner "is disabled secondary to peripheral neuropathy . . . not related to his activities in the Fire Department. Therefore, the Medical Board unanimously recommended denying petitioner's ADR application and granting his ODR application.^[FN33]

Dr. Einberg then took his second EMG of petitioner on January 27, 2004 as a follow-up to the October 3, 2002 study and to compare to Dr. Saadeh's October 23, 2003 EMG assessment. The resulting report concluded that "[a]s stated previously in both my clinical notes as well as the clinical neurophysiologic assessment (dated 09/09/02 and 10/03/02 respectively), there is not nor has there ever been any clinical or electrodiagnostic evidence of an underlying polyneuropathy which could be assigned as etiology [i.e., the cause or origin] for Mr. Deering's clinical symptoms of neuropathic pain." Instead, Dr. Einberg again [*8]concluded that "[t]he current electrodiagnostic examination is pathognomonic [i.e., characteristic/diagnostic] of bilateral L5 S1 dysfunction localized to the level of the spinal roots (i.e., radicular disease)."^[FN35]

A January 27, 2004 letter from Dr. Shebairo summarized that the "most recent EMG studies . . . reveals evidence of a radiculopathy bilaterally at the L5-SI level. No evidence of neuropathic activity is noted." Dr. Shebairo thus concluded that "based on my clinical examination and his previous and most recent EMG studies . . . this patient's low back condition is related to an injury and not a neuropathic process.

The Board of Trustees' First Consideration of Petitioner's Case

The Pension Fund's Board of Trustees first considered petitioner's case at its regular monthly meeting on January 29, 2004. It concurred, by tie vote, with the Medical Board and approved the Fire Commissioner's ODR application for petitioner under the Schoeck decision.^[FN36] A February 2, 2004 implementing letter explained that the Board of Trustees passes this type of resolution when the "Medical Board, and the members of the Board of Trustees fail to agree as to whether the member's disability is causally related to an accident in the line of duty (see Matter of City of New York v Schoeck, 294 NY 559 [1945])."^[FN37]

Petitioner, who remained on service retirement, then challenged the Board of Trustees' action by timely filing an Article 78 proceeding in May 2004 entitled Deering v The Board of Trustees of the New York City Fire Dept., Article 1-B Pension Fund, by Nicholas Scopetta, Chairman, and The City of New York, Kings County Clerk's Index No. 16311/04. The court file therein shows that petitioner alternatively sought to annul the determination or remand the matter for further consideration.

The Medical Board reviewed Dr. Shebairo's January 27, 2004 letter characterizing Dr. Einberg's electrodiagnostic testing as consistent with radiculopathy and not a neuropathy. It also referenced Dr. Raynor's October 28, 2003 note and Dr. Saadeh's electrodiagnostic study with the opposing conclusion of a polyneuropathy rather than a radiculopathy. It additionally reviewed the January 7, 2005 test results of an NYU pulmonary function study indicating normal pulmonary function and noted that the file, in any event, contained no disability application for petitioner's lungs. The Medical Board then reiterated that "our previous recommendation remains unchanged."^[FN39]

The Board of Trustees' Second Consideration of Petitioner's Case

However, the Board of Trustees chose to remand the case to the Medical Board. It directed this remand, as expressed in a November 3, 2005 directive, "so that the [Medical] Board may again review the member application in light of new medical evidence."^[FN40]

The Medical Board's Fourth Consideration of Petitioner's Case

The Medical Board thereafter reviewed petitioner's case at its December 15, 2005 meeting and referred the matter to Dr. Chin-Ting Chiu for a repeat EMG and nerve conduction study to determine if petitioner "has a radiculopathy and/or a peripheral neuropathy of his lower extremities." A finding indicative of a radiculopathy according to the Medical Board, required Dr. Raynor's reevaluation "to determine if [petitioner] has a disability of his lumbar spine that would preclude full fire duty."^[FN41]

The Medical Board acknowledged Dr. Chiu's finding of lower lumbar radiculopathy at L5-S1 upon again reviewing petitioner's case on February 2, 2006. It referred petitioner [*10]back to Dr. Raynor for re-evaluation "in light of this neuroelectrodiagnostic testing result" and deferred its disability retirement re-evaluation until Dr. Raynor's re-evaluation.^[FN43]

A new MRI of petitioner's lumbar spine, taken at Dr. Raynor's request, then resulted in Dr. L.A. Saint-Louis' February 22, 2006 report ^[FN44] of a "moderate diffuse L4/5 bulge with punctate ^[FN45] annular ^[FN46] tears at both foraminal (see fn 7) levels." He also found "mild bilateral foraminal narrowing due to the bulge, slightly worse on the right without root compromise." In addition, Dr. Saint-Louis reported "[m]ild right L3/4 facet degeneration [and] no herniation or central stenosis."^[FN47]

A March 13, 2006 letter from Dr. Robert B. Goldberg, Clinical Associate Professor of Rehabilitation Medicine, New York Medical College, to Dr. Raynor separately described an electrodiagnostic test of petitioner as "abnormal." He summarized his findings as "consistent with an ischemic neuropathy of long standing."^[FN48]

Dr. Raynor saw petitioner again on February 21, 2006 regarding the lumbar spine injuries. A resulting letter, dated March 14, 2006, from Dr. Raynor to the Medical Board Chairperson, reported that petitioner complained about "a burning pain on the side of the right calf as well as constant numbness and tingling in all his toes, including the left."^[FN49]

The letter noted that "[t]hree examiners have done EMG evaluations. One examiner felt his findings were consistent with a peripheral neuropathy. A second examiner found sharp waves and fibrillation potentials at rest indicative of a radiculopathy . . . A third examiner feels that it can be either/or a peripheral neuropathy or a radiculopathy." In addition, the letter stated that "[t]he MRI examination of the lumbar spine does not show any significant pathology other than some mild degenerative changes consistent with the age of 58."^[FN50] [*11]

Dr. Raynor's letter highlights that petitioner "complains of shooting pain into all toes on the right "and recounts that "[a]t my initial examination [on October 21, 2003] his primary complaint was of burning in his feet especially on the right. This is something most consistent with a neuropathy rather than a radiculopathy." The letter also mentions that the shooting pain "appears to be present in all positions." Dr. Raynor considers that situation "somewhat unusual without the presence of a disc herniation" and regards petitioner's complaints about the numbness and tingling in the right calf and toes "again something more consistent with a neuropathy."^[FN51]

"The EMG examinations," in Dr. Raynor's opinion, "consistently indicate . . . irritation of the nerves in the lower extremity . . . I do not believe these symptoms are due to spinal degenerative disease and are more consistent with a peripheral neuropathy . . . serious enough to prevent [petitioner] from performing full fire duty."^[FN52]

The Medical Board's Sixth Consideration of Petitioner's Case

The Medical Board summarized at its March 30, 2006 meeting Dr. Raynor's conclusion that petitioner's "symptoms are due to spinal degenerative disease and more consistent with peripheral neuropathy." It thus recommended denying the ADR and granting the ODR for peripheral neuropathy.^[FN53]

Chester Lukaszewski, Esq., an associate with petitioner's counsel, thereafter sent an April 24, 2006 letter to Lt. Stephen J. Carbone of the Uniformed Fire Officers Association requesting that "the Board of Trustees' meeting on April 28, 2006 be put off for a month, as Lt. Deering is scheduled to his personal doctor on the day of the Pension Board meeting." Mr. Lukaszewski's letter expressed the belief that "it is only fair that Lt. Deering be permitted to present updated information from this visit, including his private doctor's opinion of Dr. Raynor's conclusion."^[FN54]

The Board of Trustees' Third Consideration of Petitioner's Case

However, the Board of Trustees, after having Mr. Lukaszewski's letter read aloud, denied the postponement request at its regular April 28, 2006 meeting. Deputy Commissioner and Acting Chair Mylan Dennerstein commented that "the memo file already contains a letter from the physician which appears to be his primary care physician stating that the patient's back condition is related to an injury that is not neuropathic . . ." She noted that "when the matter was last remanded to the 1B Board, and it's been remanded I believe approximately three times, the member was referred to Dr. Raynor and got a new EMG, so [*12]they have gotten recent medical evidence of the member's condition and recommended his injury was not work related."^[FN55]

Commissioner Dennerstein added that "I don't see the benefit of adjourning the case for an additional thirty days when this case has been going on since . . ., the first [Medical] Board certificate is dated October 8, 2003; moreover the [Medical] Board has reaffirmed their recommendation that the member is ordinary." She further summarized that "[t]here have been several tests and examinations by doctors and also a court order remand to look at all evidence and resolve the conflicting medical opinions . . . Three doctors agree it's neuropathy. They state reasons for their conclusions. The ordinary finding is still relevant today . . . two and a half years later." The Board of Trustees then once again by tie vote approved the Fire Commissioner's ODR application for petitioner under the Schoeck decision.^[FN56]

That same day petitioner underwent venous and arterial duplex studies. The April 28, 2006 resulting report of Dr. John G. Yuan ^[FN57] found "no evidence of thrombus ^[FN58] or reflux ^[FN59] in the deep system bilaterally . . . no evidence of reflux in the Greater Saphenous Vein . . . [and] normal arterial insufficiency of the bilateral lower extremity arteries." Dr. Rosenblum, petitioner's treating physician, cited the arterial duplex study and explained in his May 23, 2006 letter that petitioner "has normal circulation to the lower extremities. He has no evidence of ischemic neuropathy."^[FN60]

Petitioner has again challenged the Board of Trustees' action by timely filing this new Article 78 proceeding.

Petitioner asserts that respondents have acted arbitrarily and capriciously in refusing to allow him to present evidence responding to the new outside consultants utilized in reviewing petitioner's case and in allegedly failing to properly apply prevailing legal standards. He questions the impartiality of Dr. Raynor and submits that the challenged actions herein permit remitting the matter for a more appropriate review or upgrading the pension award to an ADR pension.

[*13]Respondents' Position

Respondents argue that they properly conducted proceedings, fairly acted and appropriately applied controlling legal principles. They thus contend that credible medical evidence supports the determination that petitioner's disability arose from other than an accident incurred while performing fire duty.

This hotly contested case has resulted in six reviews of petitioner's ADR application by the Pension Fund's Medical Board, four of them after the remand that Justice Rivera ordered, and three reviews by the Pension Fund's Board of Trustees including the last one on April 28, 2006. Petitioner's rejected request for a brief, one month adjournment to produce additional medical information for the Board of Trustees' consideration somewhat mirrors the situation in the earlier Article 78 case when Justice Francois A. Rivera remanded the matter for the "Medical Board to consider the new evidence of Petitioner . . ." (see fn 37).Here, too, the Board of Trustees failed, or more accurately refused, to even give itself or the Medical Board the opportunity to weigh the value of new evidence and instead proceeded. The resulting, unreviewed medical information conflicts with the neuropathy causation conclusions reached by the Medical Board and Board of Trustees.

Such situation understandably causes a questioning of the Board of Trustees' action and appears especially egregious given the extended history in this case and relatively brief delay sought. Indeed, rescheduling to furnish the latest medical information and allow its evaluation represented a more equitable approach in keeping with the spirit of Justice Rivera's January 14, 2005 decision and also considering that the Board of Trustees itself remanded the case to the Medical Board, as stated in a November 3, 2005 directive, "so that the [Medical] Board may again review the member application in light of new medical evidence" (see fn 39).

In addition, a remand will provide an opportunity for a more current and thorough MRI of petitioner's lumbosacral spine. Dr. Raynor's re-evaluation, contained in his March 14, 2006 letter, which the Medical Board exclusively utilized in making its peripheral neuropathy and hence ODR recommendation, considered petitioner's shooting pain unusual "without the presence of a disc herniation." Dr. Raynor had noted in this regard a few sentences earlier that "[t]he [February 21, 2006] MRI examination of the lumbar spine does not show any significant pathology other than some mild degenerative changes consistent with an age of 58."

However, that February 21, 2006 MRI study simply reports a "moderate diffuse L4/5 bulge with punctate annular tears at both foraminal levels" (see fn 43) while the earlier, September 9, 2002 lumbosacral MRI, which Dr. Raynor now omits referencing, reported a "small right lateral (virtually interforaminal) disc herniation at L4-L5" (emphasis added) (see fn 8). Determining whether the "bulge" seen by Dr. Saint-Louis really constitutes a "disc herniation" as seen in the Modern Medical Imaging report of Dr. Goodman and highlighted [*14]in Dr. Shebairo's reports (see fns 17 and 22) and the BHS Medical Committee report (see fn 24) represents a potentially significant finding that apparently affected and could continue to affect Dr. Raynor's or any other impartial neurosurgical consultant's re-evaluation.

Respondents' memorandum of law in fact acknowledges (at p 6) that "[r]adiculopathy refers to any diseased condition of the roots of spinal nerves" (referencing Taber's Cyclopedic Medical Dictionary [16th ed. 1989]; see also fn 22). It also stresses that "[t]he most common cause is a herniated intervertebral disk" (referencing the Merck Manuals Online Medical Library and specifically the Merck Manual for Healthcare Professionals regarding nerve root disorders at http://www.merck.com/mmpe/sec16/ch223/ch223h.html).Indeed, remanding for a new MRI of petitioner's lumbar spine will provide an opportunity for handling the MRI issue in some similar manner as occurred in Matter of Vastola v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund (7 Misc 3d 1006 [A] [2005], affd 37 AD3d 478 [2007]). There, Dr. Raynor also confronted two MRI scans of a retirement applicant's lumbar spine and, unlike here, conducted both a blind review of the new MRI study as well as a review of his initial interpretation of the earlier lumbar spine MRI and asked two board-certified radiologists to review and interpret the MRI films independently and provide him with a report of their findings and opinions (Vastola at 7 Misc 3d 1006 [A] at *6-*7). Here, too, such approach, as Dr. Raynor himself had determined and stated, appears "advisable in an effort to obtain as impartial and accurate a reading as possible" (Vastola, 7 Misc 3d 1006 [A] at *7).

That October 23, 2003 report caused Dr. Einberg's January 27, 2004 follow-up EMG study that challenged the polyneuropathy impression by renewed findings indicating radicular disease (see fn 34) which, in part, resulted in the earlier remand that Justice Rivera ordered. The Medical Board's ensuing referral to Dr. Chiu resulted in his January 4, 2006 EMG evaluation that diagnosed a radiculopathy, mainly at the L5 and S1 levels bilaterally (see fn 41).

Finally, Dr. Goldberg performed an EMG exam on March 9, 2006 according to Dr. Raynor's re-evaluation letter, though the record lacks Dr. Goldberg's March 9, 2006 report. Instead, Dr. Raynor's re-evaluation letter references a telephone discussion with Dr. Goldberg about the findings and Dr. Goldberg's resulting March 13, 2006 follow-up report. That follow-up report (see fn 47) acknowledges petitioner's "abnormal" test and that "the findings are consistent with an ischemic neuropathy of long standing." [*15]

Dr. Raynor's re-evaluation letter states in this regard that "[h]e [i.e., Dr. Goldberg] felt these findings could also beconsistent with anischemic neuropathy of long standing as well as a radiculopathy" (see fn 48) (emphasis added). The re-evaluation letter later reiterated that "[a] third examiner feels that it can be either/or a peripheral neuropathy or a radiculopathy" (see fn 48). Hence, Dr. Goldberg apparently initially made a radiculopathy diagnosis (in the report absent from the record) and then, after a discussion with Dr. Raynor, modified his position to further conclude that the findings are similarly consistent with a long standing ischemic neuropathy.

This review both corrects Dr. Raynor's re-evaluation report and appears to show that three EMG examiners, Dr. Einberg, Dr. Chiu, a Medical Board impartial consultant, and Dr. Goldberg, diagnosed a radiculopathy, with Dr. Einberg twice reaching that conclusion, and two EMG examiners, Dr. Saadeh and Dr. Goldberg, diagnosed a neuropathy which Dr. Raynor felt more appropriately applied. Remanding to evaluate petitioner's evidence challenging the neuropathy conclusion and for a more thorough and current MRI regarding a disc herniation, given a herniation's integral relationship to a radiculopathy, logically also makes an updated EMG evaluation equally appropriate considering the history and value of that testing. An overall thorough administrative review of this matter will therefore help assure an equitably resulting Medical Board determination, both rational and supported by some credible evidence as case law requires (Matter of Rodriguez v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund,, 3 AD3d 501, 501 [2004]). Accordingly, it is

ORDERED that the petition is granted to the extent that the April 28, 2006 decision of the Board of Trustees approving by tie vote the Fire Commissioner's ODR application for petitioner and thereby denying petitioner's ADR application is vacated and the matter remanded for consideration of (1) the medical information resulting from Dr. Yuan's April 28, 2006 venous and arterial studies of petitioner, (2) the May 23, 2006 report of Dr. Gilbert A. Rosenblum, (3) a new MRI of petitioner's lumbosacral spine, (4) a new EMG evaluation and (5) any other relevant medical information.

This constitutes the decision and order of this court.

E N T E R,

J. S. C.