In this Article 78 proceeding, petitioner challenges a determination of respondents not to upgrade his ordinary disability retirement to accidental disability retirement, based on the recommendation of the Medical Board. This is the third Article 78 petition, following two prior decisions remanding the matter.

Petitioner served as a police officer from 1996 until 2004, when he retired on ordinary disability, at the age of 34. Petitioner suffers from spondylolisthesis and spondlylosis in his lumbosacral spine. Verified Petition ¶ 9. It is undisputed that his condition is congenital. Id.

It is undisputed that, during his years on the police force, petitioner had several line of duty injuries. Verified Petition ¶¶ 10-11; Verified Answer ¶ 11. Petitioner claimed that the prior line-of-duty injuries on December 9, 2001 and February 20, 2003 left no lasting impact upon his physical condition, and that petitioner returned to full duty after each incident. Id. ¶ 11. On July 19, 2003, petitioner's back was injured again while he was helping to rescue people from a burning building, including carrying a woman down four flights of stairs.

Petitioner applied for accidental disability retirement (ADR) in November 2003, and the Police Commissioner made an application in petitioner's name for ordinary disability retirement [*2](ODR). Id. ¶ 15. On March 10, 2004, petitioner was examined by the Police Pension Fund Medical Board, which reviewed his previous work-related injuries and medical records submitted in support of the application. Id. ¶ 16; Verified Answer ¶ 17. Based on all the above, the Medical Board found that petitioner had a "disabling condition which is congenital spondylo [sic]" not caused by the line of duty incident. Verified Petition, Ex A. The Medical Board's report described the condition as one that "remains quiescent for any years," and manifests itself "with pain and no neurological findings" in a person's twenties or thirties." Id. The three-member Medical Board 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. Verified Petition ¶ 19. On July 14, 2004, the Medical Board issued its second report after assessing a newly submitted report of petitioner's spinal surgeon, Dr. Vincent Leone. Id., Ex C. The Medical Board's report noted that lumbar spondylolisthesis is congenital, that it had been 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." Id. It further stated that "carrying or lifting precipitates pain in these patients" but does not aggravate the condition. Id.

The Medical Board disagreed with Dr. Leone's opinion that petitioner's back injuries were related to his rescue efforts in July 2003, in that Dr. Leone concluded that the lumbar instability noted in petitioner's x-ray would have made it unlikely that petitioner could have engaged in the running and lifting activities in July 2003. The report states that petitioner's injury was "quite consistent with pain experienced after carrying, and to be specific to the diagnosis of spondylolisthesis. . . This incident is a temporary exacerbation and did not aggravate the pre-existing condition, which is congenital." Thus, the Medical Board concluded that the officer's disability was not causally related to the last incident which the officer sustained in July 2003, as the pain "is more consistent with the presence of the disease." Id. The Medical Board affirmed its approval of ODR and disapproval of 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 (Verified Answer, Ex 7), which resulted in petitioner's retirement on ODR rather than ADR. Petitioner brought an Article 78 proceeding challenging the determination.

By decision, order, and judgment dated September 30, 2005, Justice Feinman vacated the determination and remanded the matter for further consideration. Justice Feinman stated,

"[T]he Medical Board determined from the medical evidence before it that the July 2003 incident had not caused or "aggravated" petitioner's congenital condition but rather was a "temporary exacerbation" (Pet. Ex. C, ¶ 5). This frankly makes no sense and appears to be a tortured attempt to avoid applying the law to the facts. . . .

Thus, the Medical Board determined the July 2003 incident did not make petitioner's congenital condition more severe but rather only made it temporarily more severe, without offering any explanation as to how it determined the condition was temporary,' given that petitioner was also found to be disabled."

On remand, the Medical Board issued a report dated August 16, 2006. Verified Petition, Ex [*3]L. The Medical Board explained that it had found no evidence that the spondylolisthesis was permanently worsened following the accident. The Board distinguished between the terms "exacerbation," which the Medical Board explained was a "temporary worsening of symptoms," and "aggravation," which the Medical Board defined as a "permanent worsening of the conditions." The Medical Board again affirmed its opinion that petitioner's congenital condition, although the cause his disability, was not "aggravated" by the events of July 2003. On January 10, 2007, the Board of Trustees denied petitioner's request for an upgrade to accidental disability retirement, stating, in pertinent part:

"The Medical Board in 2006 clearly explains the medical context, the terms they use, goes on to state 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. We rely on the Medical Board['s] expertise. We agree with their findings."

By decision, order, and judgment dated January 11, 2008, Justice Feinman again vacated the decision of the Board of Trustees and remanded the matter, finding that the Medical Board's conclusion "simply appears to lack a sound basis in reason or any medical explanation articulated in the record." Verified Petition, Ex Q.

"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."

On remand, the Medical Board reaffirmed its previous decision. At proceedings before the Board of Trustees on October 8, 2008, the Board of Trustees denied petitioner's application to upgrade his pension to an accidental disability retirement pension. The record states, in pertinent part:

"Ms. Debellis: This was an upgrade request last month. We are not able to grant the upgrade.

I did review, we did review a letter from his attorney, Raymond Kerno. I would like to point out that this is the third upgrade request that we have received and we have not any reason to change our previous opinion. The upgrade was denied in December 06. It was also denied in January 07. . .

So we have reviewed the materials. It doesn't have any impact on our previous analysis or our decision that this is not the suitable case for an upgrade.

So we are denying the upgrade.

Mr. McGrath: 6/6?

Dep. Exec. Dir. Sens-Castet: 6/6 noted."

By decision and order dated October 2, 2009, this Court asked the parties to submit supplemental briefs on "the issue of whether the Medical Board's finding of temporary worsening of petitioner's spondylolisthesis can be reconciled, either factually in the record or legally, with the Medical Board's determination that petitioner was disabled for full police duty." This Court asked for further briefing because of

"an apparent conflict and anomalous result not satisfactorily reconciled by the papers before the Court. On the one hand, the Medical Board apparently determined that the occurrence of symptoms of a previously asymptomatic congenital condition rendered petitioner permanently disabled. On the other hand, In determining causation for the eligibility for accidental disability retirement, the Medical Board found that petitioner experienced only a temporary worsening of his congenital condition. The factual finding of a temporary worsening suggests that petitioner was not permanently disabled."

The determination as to whether a retiring or retired police officer is entitled to ADR involves a two-step process. First, the Medical Board must determine whether or not the applicant is in fact physically or mentally incapacitated for the performance of city-service. If the Medical Board finds that the applicant is disabled, it must then make a recommendation to the Board of Trustees as to whether the disability was the natural and proximate result of an accidental injury. See Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 760 (1996).

Whether an applicant has the injury claimed and whether that injury constitutes a disability under the public pension statutes are questions solely for the Medical Board, and the Medical Board's determination on these issues is binding on the Board of Trustees. Matter of Borenstein, 88 NY2d at 760-61; Matter of Canfora v Board of Trustees of the Police Pension Fund of Police Dept. of the City of NY, Art. II, 90 AD2d 751, 752 (1st Dept 1982), affd, 60 NY2d 347 (1983). The Medical Board's determination of disability is not disturbed if it is supported by "some credible evidence." Matter of Borenstein, 88 NY2d at 760-761. The articulated, rational, and fact-based reports of the Medical Board constitute credible evidence. Matter of Meyer v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 147-148 (1997).

"[T]he Board of Trustees, while bound by the Medical Board's determination of disability, is entitled to make its own determination regarding causation." Matter of Calzerano v Board of Trustees of NY City Police Pension Fund Art. II, 245 AD2d 84, 84 (1st Dept 1997). "The Board of Trustees determination as to causation may not be disturbed by a court as lacking rational basis or as arbitrary and capricious if it is based on substantial evidence,' defined in this context as based on some credible evidence.'" Matter of Picciurro v Board of Trustees of NY City Police Pension Fund, 46 AD3d 346, 348 (1st Dept 2007). "Credible evidence has been defined as evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered' and is evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion.'" Matter of Cusick v Kerik, 305 AD2d 247, 248 (1st Dept 2003)(citation omitted).

The Board of Trustees adopted the Medical Board's standard of causation, which drew a distinction between exacerbation and aggravation of a pre-existing condition. This Court does not [*5]substitute its judgment for the Medical Board's definitions of exacerbation and aggravation for the purposes of medical diagnosis and treatment. However, in relying upon the medical distinction of exacerbation-aggravation of the Medical Board, the Board of Trustees applied an incorrect legal standard of causation. As the Court of Appeals explained,

"The causation rule both in tort law and under the workers' compensation statute is that an accident which produces injury by precipitating the development of a latent condition or by aggravating a preexisting condition is a cause of that injury. Moreover, although there is no accident disability retirement case squarely applying that rule, it has been assumed in a number of disability cases that evidence establishing that an accident exacerbated an underlying condition, thereby rendering the employee disabled, would be sufficient, if accepted."

The Medical Board's distinction between "exacerbation" and "aggravation" was based on a distinction between "temporary worsening" and "permanent worsening" of a pre-existing condition. However, Justice Feinman pointed out that the record before him in the two prior Article 78 proceedings did not contain any evidence to support the Medical Board's conclusion that petitioner's spondylolisthesis only temporarily worsened. In his decision, order and judgment dated September 30, 2005, Justice Feinman stated:

"Thus, the Medical Board has determined the July 2003 incident did not make petitioner's congenital condition more severe but rather only made it temporarily more severe, without offering any explanation as to how it determined the condition was temporary,' given that petitioner was also found to be disabled."

"[T]his proceeding is remanded again to the Medical Board either to reassess the evidence in its entirety or 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."

Like Justice Feinman, this Court saw a contradiction between the Medical Board's conclusion that petitioner's spondylolisthesis only temporarily worsened after July 2003, and yet found him permanently disabled. Prior to July 2003, petitioner's spondylolisthesis was apparently asymptomatic. Based on the Medical Board's conclusion that petitioner's spondylolisthesis "returned to baseline symptoms" (because it was only exacerbated), the reasonable assumption would be that the Medical Board believed that, some time after July 2003, petitioner's condition was asymptomatic. At the time that petitioner applied for accidental disability retirement, he was not asymptomatic; petitioner's condition had undisputably become permanently disabling. Neither respondents nor the Medical Board points to any evidence, that, in the interim between the July 2003 incident and the application for disability retirement, petitioner had returned to an asymptomatic state. Thus, this Court directed the parties to submit supplemental briefs "on the issue of whether the Medical Board's finding of temporary worsening . . . can be reconciled, either factually in the record or legally, with the Medical Board's determination that petitioner was disabled for full police duty."

According to its report dated June 11, 2008 , the Medical Board reviewed a letter written by Dr. Leone, dated September 20, 2003. However, the Medical Board neither indicated nor explained how the medical evidence supported its finding that petitioner's spondylolisthesis only temporarily worsened after July 2003. In the supplemental briefs, respondents contend that the record supports the Medical Board's determination of lack of causation, because emergency room records from petitioner's July 2003 indicated that petitioner was in no acute distress and had a normal range of motion, and that petitioner was ambulatory. Sisolak Affirm. in Further Support ¶ 11.

The emergency room records of July 19, 2003 do not constitute credible evidence that petitioner's spondylolisthesis only temporarily worsened, because those records are from the date when petitioner was injured. Records from the date of petitioner's injury cannot establish that petitioner's condition returned to asymptomatic after he was injured in July 2003.

Thus, this Court concludes that the Medical Board's conclusion that petitioner's spondylolisthesis had only temporarily worsened after the July 2003 incident was not based on any credible evidence, but rather on unsupported conjecture. This conclusion is reinforced by the fact that the Medical Board and respondents have been given several opportunities to explain as to how the evidence established that petitioner's spondylolisthesis had "returned to baseline symptoms" after July 2003, but neither the Medical Board nor respondents have given an explanation based on credible medical evidence. Because the Board of Trustees adopted the Medical Board's unsupported conclusion that the events of July 2003 did not proximately cause petitioner's injury, the Board's finding of no proximate cause lacks a rational basis. Therefore, respondents' September 10, 2008 determination denying petitioner's upgrade to accidental disability retirement pursuant to Administrative Code § 13-252 is vacated.

The issue presented is whether the matter should be remanded yet again to respondents for further proceedings. "[T]he reviewing court may not set aside the Board of Trustees' denial of accidental disability retirement resulting from such a tie vote unless it can be determined as a matter [*7]of law on the record that the disability was the natural and proximate result of a service-related accident.'" Matter of Meyer, 90 NY2d at 145.

Matter of McCambridge v McGuire (62 NY2d 563 [1984]) is instructive. There, the Board of Trustees denied the petitioners' applications for accidental disability pensions by a 6-6 tie vote and awarded ordinary disability pensions. The issue presented in each case was "whether the injury was the natural and proximate result of an accidental injury entitling the petitioner to an accident disability pension." Id. at 567. By a 6-1 majority, the Court of Appeals ruled that the Board of Trustees "applied an erroneous legal standard of accidental injury" and ruled that the petitioners were entitled to accidental disability pensions. Id. at 568. The majority rejected the dissent's argument that the matter should be remanded for review under the correct standard:

"In response to the assertion of the dissent that these cases should be remitted to the Board for its reconsideration of the claims for accident death benefits, it suffices to note that if the Board were to deny the claims we would be obliged to vacate its determination as erroneous. In each case we conclude as a matter of law that there was an accident."

Here, as in Matter of McCambridge, the Board of Trustees denied petitioner's upgrade to accidental disability retirement by a 6-6 tie vote. Like Matter of McCambridge, the Board of Trustees applied an erroneous legal standard. If the Court were to remand the case yet again, the Court would be obliged to vacate as erroneous the determination of the Board of Trustees if it were to deny petitioner's application for accidental disability retirement. This matter was remanded twice, and the respondents have been given the opportunity to submit additional briefs. In each case of remand, respondents consistently applied an incorrect legal standard of causation.

The parties do not dispute that petitioner suffers from spondylolisthesis, a congenital condition which, at the time petitioner submitted his application for ADR, rendered him physically incapacitated for police duty. Neither do respondents argue that the July 2003 incident did not constitute a "service-related accident." Contrary to respondents' argument, the record contains evidence to support a finding that petitioner's spondylolisthesis was worse following the July 2003 incident. The Medical Board concluded as much, but the Medical Board would not conclude that the spondylolisthesis had permanently worsened. It only speculated that the spondylolisthesis had temporarily worsened. Because the July 2003 incident exacerbated petitioner's spondylolisthesis, it was a natural and proximate cause of petitioner's disability. In absence of any factual evidence to the contrary, i.e., that petitioner's spondylolisthesis had returned to baseline symptoms following the July 2003 incident, petitioner has therefore established his right to accidental disability retirement as a matter of law.

Therefore, petitioner is entitled to be upgraded from an ordinary disability retirement pension to an accidental disability retirement pension, effective as of September 10, 2008.

Accordingly, it is hereby

ADJUDGED that the petition is granted, respondents' determination is hereby vacated, and petitioner Michael Baranowski is entitled to an accidental disability retirement pension, with costs and disbursements to petitioner as taxed by Clerk upon submission of an appropriate bill of costs; [*8]and it is further

ORDERED that the matter is remitted to respondents for determination and payment of the petitioners' accident disability pension benefits, as of September 10, 2008.Dated: June 16, 2010

New York, New YorkENTER:

/s/

J.S.C.