Upon consideration of the above-enumerated papers and after oral argument, the petition brought pursuant to CPLR Article 78 seeking to review and annul the January 10, 2007 determination by respondents is granted to the extent that the determination is annulled and the matter remanded for appropriate reconsideration in accordance with this decision.

Petitioner applied for accident disability retirement in November 2003 and the Police Commissioner made an application in his name for ordinary disability retirement (Pet. ¶ 15). As part of the application process, he was examined by the Police Pension Fund Medical Board on March 10, 2004 (Pet. Ex. A). The report issued by the Medical Board reviewed his previous work-related injuries and described his symptoms (Pet. Ex. A, ¶¶ 4-6). It noted that tests revealed certain limitations in his mobility (Pet. Ex. A. ¶ 9). The Medical Board also reviewed Police Department notes from 2001, a neurological examination from January 2002, EMG studies from September 2003, and reports following consultations with a neurologist and orthopedist in 2003, ^[FN2] as well as plain x-rays of petitioner's lumbosacral spine showing a grade 1 spondylolisthesis and spondylolysis, and an August 2003 MRI also showing this condition (Pet. Ex. A, ¶¶ 7, 8).^[FN3] Based on all the above, the Medical Board found that petitioner had a "disabling condition which is a congenital spondylo" not caused by the line of duty incident (Pet. Ex. A. ¶ 10). The report described the condition as one that "remains quiescent for many years," and manifests itself "with pain and no neurological findings" in a person's twenties or thirties (Id.). It stated that "[e]ventually, this officer will need a fusion. . . to stabilize his back" (Id.). It concluded that although petitioner had not submitted contemporaneous documentation showing progression, the "probable progression" of this condition leads to the conclusion that petitioner had become disabled for police duties (Id.). The three-member Board panel voted to approve the application for ODR and to disapprove the application for ADR. (Id).

In May 2004, the Police Pension Fund asked the Medical Board to reconsider its decision based upon additional medical information (Ans. Ex. 14). On July 14, 2004, the Medical Board Police Pension Fund issued its second report after assessing a newly submitted report of petitioner's spinal surgeon, Vincent Leone, M.D. (Ans. Ex. 15). The Board's report set forth the reasoning of its earlier decision, noting that lumbar spondylolisthesis is congenital, and had been [*3]noted in petitioner as far back as 2001, although he was apparently asymptomatic at that time, as is typical of the condition until it manifests as pain in the person's early thirties and "quite frequently progresses to the need for fusion" (Ans. Ex. 15, ¶ 2). It further stated that "carrying or lifting precipitates pain in these patients" but does not aggravate the condition. Thus, it "felt" that the officer's disability was not causally related to the events of July 2003, as the pain "is more consistent with the presence of the disease." (Id.). The Board disagreed with Dr. Leone's opinion, which was that the lumbar instability noted in the x-ray would have made it unlikely that petitioner could have engaged in the running and lifting activities on the date of the accident, and that therefore his back injuries were related to the work incident (Id. ¶ 5; see also Ex. 16, Leone Letter). Rather, the Pension Fund Medical Board report stated that petitioner's injury was "quite consistent with pain experienced after carrying, and to be specific with the diagnosis of spondylolisthesis" (Pet. Ex. C ¶ 5). It concluded that "this incident is a temporary exacerbation and did not aggravate the pre-existing condition, which is congenital," and affirmed the approval of ODR and not ADR (Id.).

On October 13, 2004 the Board of Trustees voted on whether to upgrade the Medical Board's recommendation of ODR to ADR, but the vote was a tie, with the result that petitioner was retired from the police department with ODR rather than ADR (Ans. ¶ 28).^[FN4] Petitioner was notified subsequently that the Police Pension Fund had affirmed the original decision granting him ODR and denying him ADR. He timely commenced his first special proceeding pursuant to CLR 7803(3) (Pet. Ex. E).

After consideration of the papers and the oral argument, this court found that the determination by the Medical Board was "at the very least internally inconsistent and should be remanded for further consideration" (Pet. Ex. G, Decision, Order & Judgment of Sept. 30, 2005, at 6). In particular, the court stated that it "frankly ma[de] no sense and appear[ed] to be a tortured attempt to avoid applying the law to the facts," for the Medical Board to determine that the July 2003 incident, after which petitioner had become disabled, had not caused or "aggravated" petitioner's congenital condition but rather "temporarily exacerbat[ed]" it (Pet. Ex. G, at 6, citing the Pension Fund report of July 14, 2004, at ¶ 5). The decision and judgment noted that the conclusion of the Medical Board appeared to state that the July 2003 incident did not make petitioner's congenital condition more severe but only temporarily more severe, and did not explain how the condition was "temporary," given that petitioner was also found to be disabled. There also was no discussion as to whether petitioner's disability would have occurred in the same time span, independent of his injury in July 2003.

The remanded matter was placed on the Board of Trustees' calendar on January 11, 2006 (Pet. Ex. I). The Board was instructed by an assistant corporation counsel of New York City to clarify its conclusion that the line of duty incident did not make petitioner's congenital condition more severe but only made it temporarily more severe, as that seemed inconsistent with its determination that the petitioner is disabled; it was also directed to state whether it believed that petitioner's disability would have occurred in the same time span had the July 2003 injury not taken place (Id., at 17). [*4]

Petitioner's attorney forwarded a letter to the Board written by the spinal orthopedist, Dr. Leone, in which the doctor again states that the congenital condition had not interfered with petitioner's life prior to the injury of July 2003, when he injured his back in rescue work, that the herniated discs and the instability of the spondylolisthesis were aggravated by the injuries, and that this aggravation eventually led to his inability to perform his duties (Pet. Ex. K). Dr. Leone's letter further noted that the MRIs taken at the time of the injury show a disc bulge and protrusion "at L4-5 which is not related to the L5-S1 congenital level," and thus shows evidence of the aggravation of a preexisting condition. (Id., p. 2).

The Medical Board issued a new report dated August 16, 2006 (Pet. Ex. L). The report first addressed the terms "exacerbation," which it explained means "a temporary worsening of symptoms," and "aggravation," which "is meant to be used to define a permanent worsening of the conditions." (Pet. Ex. L ¶ 3). Thus, the Board explained that it had found no evidence that the spondylolisthesis was permanently worsened following the accident, i.e., it was not aggravated by the accident, but temporarily exacerbated (Pet. Ex. L ¶ 4). Petitioner is of an age when those with spondylolisthesis "usually require surgery" (Id.). Although it is never possible to state precisely when surgery to alleviate the pain associated with the condition would be required, surgery is "almost always" required "at some point," usually when the individual is in his or her late twenties or early thirties (Id.). As concerns Dr. Leone's reference to the MRI, if this court's interpretation of the report's rather fractured English is correct, the Board also concluded that the MRI taken following the incident showed not just a herniated disc, but one that was "overriding of" the adjacent disc, which defines spondylolisthesis (Pet. Ex. L ¶ 3).^[FN5] Based on all the evidence, the Board again affirmed its opinion that petitioner's congenital condition, although the cause of his disability, was not aggravated by the events in July 2003.

On January 10, 2007, the Board of Trustees adopted the Medical Board's findings that "there is no objective evidence that indicates that the officer's spondylolisthesis was made worse on a permanent basis following a July 2003 exertional incident" and that while "exertion may cause temporary pain. . . this does not affect the status or progression of underlying disease" (Pet. Ex. N, at 32:16-18; 12-14). Thereafter, petitioner commenced this second Article 78 proceeding arguing that the Medical Board failed to comply with the court's directives to explain its reasoning, and contending that he should be awarded accident disability retirement as a matter of law.

Respondents oppose and seek dismissal of the petition on the ground that petitioner did not meet his burden of showing that his incapacity was the natural and proximate cause of an accident sustained in the course of his duties as a police officer, that there was credible evidence to find that petitioner was not disabled as a result of the line of duty injury but because of his congenital condition and that the determination to deny ADR was lawful and proper. [*5]Respondents argue that the Medical Board found that the pain experienced by petitioner following July 19, 2003 was consistent with the diagnosis of spondylolisthesis, a temporary exacerbation of his condition and "simply evidence of the presence of the condition itself, not causative of the condition" (Ver. Ans. ¶ 22). They also contend that they acted reasonably and lawfully in denying petitioner accident disability retirement (NYC Admin. Code § 13-252).

A petitioner's application for accidental disability retirement requires that a three-physician member pension fund Medical Board determine that, based on a medical examination and the investigation of all essential information, the member is disabled for performance of duty and should be retired, and if the member is disabled, whether or not the disability is "a natural and proximate result of an accidental injury received in such city-service," after which the Board will certify its recommendation on this issue to the Board of Trustees (Matter of Meyer v Board of Trustees of NYC Fire Dept., 90 NY2d 139, 144 [1997], citing among others Matter of Canfora v Board of Trustees, 60 NY2d 347, 351 [1983] [construing comparable provisions governing New York City Police Pension Fund]). The Medical Board is required to evaluate the evidence submitted by the petitioner (see, Mininni v The New York City Empls. Retirement Sys., 279 AD2d 428 [1st Dept.]), lv denied 96 NY2d 722 [2001]). Where the medical evidence is conflicting, it is the sole province of the Medical Board to resolve the conflict (Matter of Borenstein at 760). Only where it is not clear that the Board has a rational basis for its rejection of petitioner's evidence, is a remand appropriate (see, Matter of Duester v McGuire, 81 AD2d 553 [1st Dept. 1981]).It is well-settled that the Board of Trustees of the Police Pension Fund is bound by the Medical Board's determination of disability (Matter of Borenstein v New York City Employees Retirement Sys., 88 NY2d 756 [1996]). The Board's determination will not ordinarily be disturbed if the determination is based on "substantial evidence," which the Court of Appeals has held to mean, in the context of disability cases, as "some credible evidence" (Matter of Borenstein, 88 NY2d at 760, citations omitted). Reviewing courts may not weigh the medical evidence or substitute their judgment for that of the Medical Board (Matter of Borenstein, at 760).

Here, petitioner argues in sum that the Medical Board continues irrationally to find that his injury, received during the course of rescuing individuals from a burning building, was itself [*6]only temporary, but that his congenital condition manifested itself at roughly the same time and rendered him unable to perform his duties as a police officer. Although contrary to petitioner's arguments, the Medical Board upon remand did address the issues raised in this court's September 30, 2005 opinion, the Board still failed to explain how it determined that the accident did not aggravate, but only exacerbated, petitioner's then latent condition. It explained the difference between the terms "aggravate" and "exacerbate," and stated that petitioner's spondylolisthesis was only temporarily worsened by the accident, but the nature of his congenital condition by definition means that he would at some point be experiencing the type of disabling condition that he now does in fact experience. It would appear that because the condition "frequently" or "almost always" requires surgery when the individuals are in their twenties or thirties, according to the Medical Board, that the conclusion must be that petitioner could not have been an exception to the general rule and that his condition would, at any moment in 2003, not just cause pain, but make him unable to perform his job. The Board stated that although it was not possible to determine just when the condition will become so painful that surgery is required, petitioner was in the age group where surgery usually becomes necessary. Thus, it is the Board's opinion that petitioner would have experienced the same disability within a same time span even if he had not engaged in the activities in July 2003.

As noted by petitioner, the Medical Board's conclusion is at variance with petitioner's orthopedist/spinal surgeon. The Board's August 16, 2006 report implicitly addressed Dr. Leone's conclusions which were reiterated in a letter of July 2, 2006 (Pet. Ex. K). Dr. Leone's opinion was that petitioner's congenital condition, quiescent before July 2003, was aggravated by the injuries sustained in the course of his rescue work on July 19, 2003, that his "herniated discs and the instability of the spondylolisthesis were aggravated by injuries sustained in this incident," and that this aggravation "eventually led to his inability to perform his duties as a police officer" (Pet. Ex. K, Letter, unnumbered p. 1). He describes the MRI as showing "a disc bulge and protrusion at L4-5 which is not related to the L5-S1 congenital level," which is evidence of "aggravation of a preexisting condition." (Pet. Ex. K, Letter of V. Leone, M.D.). The Board, in its August 2006 report, states that the MRI showed a disc that was herniated and overriding the adjacent disc, which is the definition of spondylolisthesis (Pet. Ex. L ¶ 3).

In evaluating an Article 78 petition, the court may not substitute its judgment for that of the agency's determination but shall decide if the determination can be supported on any reasonable basis (Matter of Chancy-Culled Storage Co. v Board of Elections of the City of New York, 98 AD2d 635, 636 [1st Dept. 1983]). Nor may the court weigh the medical evidence or substitute its own judgment for that of the Medical Board (see, Matter of Brady v City of New York, 22 NY2d 601 [1968]). Nonetheless, without weighing the medical evidence, the court simply cannot find rationality in the Medical Board's conclusion that petitioner, who apparently was asymptomatic before the incident in July 2003, suffered only a temporary exacerbation of symptoms because of the accident, and then, independently from but directly subsequent to the accident, his spondylolisthesis manifested itself and became disabling. An arbitrary action is without sound basis in reason and is generally taken without regard to the facts (Matter of Pell v Board of Educ., 34 NY2d 222, 232 [1974]). Here, the Board's conclusion simply appears to lack a sound basis in reason or any medical explanation articulated in the record.

Although under McCambridge, a court may set aside a denial of accident benefits when it [*7]concludes that the applicant is entitled to them as a matter of law (62 NY2d at 568), this proceeding is again remanded to the Medical Board either to reassess the evidence in its entirety or to set forth an explanation as to how it determined that petitioner's condition was exacerbated and then returned to normal, and then deteriorated independently from the earlier incident. Perhaps an analysis and explanation of petitioner's medical condition between July and November 2003, when he applied for accident disability retirement, would be instructive. It is

ORDERED and ADJUDGED that the petition is granted to the extent that the determination is annulled and the matter remanded for appropriate reconsideration in accordance with this court's decision.

The foregoing shall constitute the decision, order and judgment of this court.

E N T E R

Dated: January 11, 2008____________________________________

New York, New YorkJ.S.C.