The following papers numbered 1 to 7 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-3

Opposing Affidavits (Affirmations)4

Reply Affidavits (Affirmations)5

____________ Affidavit (Affirmation)

Other Papers Memoranda of Law6-7

Upon the foregoing papers in this CPLR article 78 proceeding, petitioner Alexander Guillo, seeks a judgment pursuant to CPLR 7803 (3) and (4) that the determination made by respondents the New York City Employee's Retirement System (NYCERS) on April 13, 2012, denying petitioner's application for accidental disability retirement benefits under Section 605 of the New York State Retirement and Social Security Law was arbitrary and capricious, an abuse of discretion, affected by error of law, and not supported by substantial evidence; or in the alternative, for an order pursuant to CPLR 7804 (g) transferring the issues raised herein to the Appellate Division, Second Department. [*2]

On December 10, 2007, petitioner began his employment with the New York City Transit Authority as a bus operator. On November 7, 2009, petitioner injured both of his knees, his back and his neck when he was sitting in the bus he was operating. While the bus was parked in the bus layover area it was rear ended by another Metropolitan Transit Authority bus.

On September February 4, 2011, petitioner filed an application for accidental disability retirement with NYCERS based upon the aforementioned accident. In his application he listed injuries to his cervical spine, lumbar spine, left and right knee, and noted that these impairments "interfere/prohibit the ability to work, and prohibit physical activity." On June 6, 2011, petitioner appeared before the Medical Board for an interview and examination, however the Board merely interviewed him and declined to examine him citing the fact that he had undergone neck surgery on December 15, 2010 and left knee surgery on March 23, 2011, and thus the cervical spine fusion had not yet occurred and that the knee operation had only occurred six weeks prior, and the fact that he was being considered for a spinal operation. Thus, the Board concluded, it would be imprudent to put him through the maneuvers of a physical examination at that time. During his interview, petitioner stated that he still had neck pain with limited range of motion and lower back pain radiating to his lower extremity. He indicated that he was receiving physical therapy three times a week and taking Vicodin three times a day for his pain. The Medical Board indicated that it would try to examine petitioner in three months and requested additional medical documentation regarding petitioner's medical conditions.

The Board received the additional documents it had requested and on February 2, 2012, the Medical Board reviewed the medical records, interviewed and examined petitioner. Petitioner maintains that the interview and examination lasted less that 15 minutes total and that he informed the examining doctors that he suffers from severe neck and back pain and cannot move his head and neck fully, nor could he move his back completely and that he had pain in his right leg and buttock. He emphasized that the limitation of motion of his neck was so severe that he would be unable to operate a bus for that reason alone. The Medical Board's examination of petitioner revealed that he had decreased range of motion of the neck as follows: flexion to 5 degrees, extension to 5 degrees, lateral flexion to 10 degrees bilaterally, and rotation to 15 degrees on both sides; and decreased range of motion of the trunk and pelvis as follows: forward flexion to 20 degrees, extension to 10 degrees, lateral flexion to 10 degrees to each side, and rotation to 10 degrees on each side.

The Medical Board recommended the denial of petitioner's application for accidental disability retirement finding that, although the incident that occurred on November 7, 2009 was an accident, as defined by statute, petitioner was not disabled from performing the duties of a bus operator with the Transit Authority. The Board also noted that the magnitudes of petitioner's responses to various maneuvers were inconsistent with its objective findings. The Medical Board found that the documentary and clinical evidence failed to substantiate that petitioner was disabled from performing the duties of a bus operator with the Transit Authority. At a meeting held on April 12, 2012 , the Board of Trustees of NYCERS adopted the recommendation of the Medical Board and denied petitioner's application.

Subsequently, petitioner filed the instant Article 78 proceeding requesting the court to reverse respondent's determination on the grounds that it was arbitrary and capricious and against the substantial weight of the documentary evidence.

The Parties' Contentions

Petitioner contends that the Medical Board's determination was arbitrary, capricious, an abuse of discretion, affected by error of law, and not supported by substantial evidence. Petitioner argues that the medical documentation he submitted amply demonstrated that he was unable to perform the duties of a bus operator and that respondents failed to consider what his job duties entailed. In support of this, petitioner points to the job description of an MTA New York City Transit Authority Bus Operator which provides in pertinent part as follows:

Bus operators, under general supervision, safely and efficiently operate an MTA New York City Transit bus transporting passengers along an assigned route while adhering to a schedule, New York City traffic regulations, New York State laws, and New York City Transit rules and regulations . . . Perform pre-and post-trip inspections . . . . Some of the physical activities performed by Bus Operators and environmental conditions they experience are: working in all kinds of weather conditions . . . walking up and down stairways and ramps, and avoiding hazards in depots . . . seeing and anticipating traffic hazards at a distance and in all directions; making visual inspections of buses; sitting for long periods of time; operating a wheel chair lift; and climbing into and out of an operator's seat.

Petitioner points out that the aforementioned duties, when considered in connection with his restrictions and limitations, leave no doubt as to his inability to operate an MTA commuter bus. He notes that the Medical Board's own physical examination revealed a significantly decreased range of motion in his neck, trunk and pelvis. Petitioner points out that as part of his driving duties he was required to scan the side view mirrors every two to three seconds which would require him to turn his head approximately 90 degrees, lean forward with his whole body to check the bus's mirrors; and use his left foot to operate the left and right turn signals. He also argues that as a bus operator he was required to pick up disabled passengers in wheelchairs which involved operating a wheelchair lift, exerting about 20 pounds of force and pulling, kneeling and bending to move the bus seats to accommodate a wheelchair. Petitioner states that he was required to perform pre and post trip inspections in which he had to bend down to check the tires and undercarriage of the bus.

Thus, petitioner contends that respondent's failure to consider his job duties in connection with the documented restrictions and limitations in his range of motion and ability to lift a certain weight was arbitrary and capricious. In support of this contention, petitioner points out that according to Mosby's Physical Examination Handbook, 3rd Edition, 2003, p. 203 , the normal range of motion of the cervical spine is 45 degrees of flexion, 45 degrees of extension, 40 degrees of lateral bending and 70 degrees of rotation, whereas the Board found petitioner's range of motion to be as follows: flexion to be 5 degrees, extension to 5 degrees, lateral flexion to 10 degrees bilaterally, and rotation to 15 degrees on both sides. In addition, Mosby's states that the normal range of motion of the lumbar spine is 75 to 90 degrees of flexion, 30 degrees of extension, 35 degrees of lateral bending and 30 degrees of rotation whereas the Board found that petitioner had decreased range of motion of the trunk and pelvis as follows: forward flexion to 20 degrees, extension to 10 degrees, lateral flexion to 10 degrees to each side, and rotation to 10 degrees on each side. Accordingly, petitioner argues that the fact that his ability to move his neck and back is so severely restricted, coupled with his inability to remain seated in the same position for long periods of time, render him incapable of driving a bus. He points to New York State Vehicle and Traffic Law [*3]§ 509-k and §391.41 of the Federal Motor Carrier Safety Regulations and contends that pursuant to these statutes his impairments render him statutorily incapable of operating a commercial bus. Finally, petitioner argues that respondent's failure to explain how a claimant, with such significant restrictions, is capable of performing the above referenced job duties is irrational.

Petitioner maintains that he submitted thorough and extensive objective medical evidence illustrating his inability to perform his duties as a bus driver. In support of his application, he submits numerous medical reports spanning from 2009 through 2012. These include various MRI and pre and post operative reports related to his knee and neck surgeries and reports from independent medical examinations performed as part of his Worker's Compensation claims including various reports from Drs. Eduardo Alvarez and Jonathan Glassman. These reports show that Dr. Alvarez continued to find decreased range of motion of petitioner's neck, back and left knee and, on April 28, 2010, he opined that petitioner could not return to work as a bus operator and noted that petitioner was taking Vicodin which may impact his functional ability. Additionally, petitioner was seen by Dr. Jonathan Glassman as part of his Worker's Compensation claim several times in 2010 and 2011. Dr. Glassman opined on February 2, 2011 that petitioner has "a temporary moderate partial disability. There is evidence of a need to limit work status and activities of daily living. The examinee is capable of working with restrictions/limitations of no lifting greater than 15 pounds, no pushing or pulling greater than 20 pounds and no climbing ladders. The examinee cannot work at heights, operate a motor vehicle, operate mechanical equipment or perform repetitive movements."

Petitioner also notes that he is receiving Worker's Compensation and Social Security disability as a result of his line of duty injuries. The court notes however that contrary to the petitioner's contention, the finding by the Workers' Compensation Board and the Social Security Administration that he is disabled was not binding on the Medical Board (see Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 759 [1996]; Matter of Drummond v New York City Employees' Retirement Sys., 98 AD3d 1116, 1118 [2012]; Matter of Barden v New York City Employees' Retirement Sys., 291 AD2d 215, 216 [2002]; Matter of Kalachman v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund, 224 AD2d 619, 620 [1996]).

Respondents contend that the Medical Board not only considered all of the medicalevidence presented by petitioner but also interviewed him and conducted its own examination of petitioner before determining that the objective medical evidence failed to substantiate that he was disabled from performing his duties as a bus operator. Accordingly, respondents argue that based on the evidence before it the Board properly recommended denial of petitioner's application for disability retirement.

Petitioner nowmoves for a judgment, pursuant to CPLR Article 78, seeking to reverse respondent's denial of his application for disability retirement. It is axiomatic that in an Article 78 proceeding the court's function is to determine whether the action of an administrative agency had a rational basis or was arbitrary and capricious (see e.g. Pell v Bd. of Educ., 34 NY2d 222, 230-231 [1974]). Thus, in an Article 78 proceeding challenging a disability determination, the Medical Board's finding will be sustained unless it lacks rational basis, or is arbitrary and capricious (Matter of Borenstein, 88 NY2d at 760; see also Matter of Canora v Board of Trustees, 60 NY2d 347, 351 [1983]; Matter of Pell, 34 NY2d at 230-231). If the Medical Board's determination is reasonably based in the record, it will not be [*4]considered to lack a rational basis or to be arbitrary or capricious (Matter of Borenstein, 88 NY2d at 760). In the context of a Medical Board determination, such finding will be sustained if there is some credible evidence that supports the Medical Board's determination (id.; see also Matter of Kuczinski v Board of Trustees of New York City Fire Dept., Art.1-B Pension Fund, 8 AD3d 283, 284 [2004]). If the evidence reviewed by the Medical Board is subject to conflicting interpretations, the Medical Board alone has the authority to resolve the conflict (Matter of Borenstein, 88 NY2d at 761; Matter of Mininni v New York City Employees' Retirement SYS., 279 AD2d 428, 429 [2001], lv denied 96 NY2d 722 [2001]; Matter of Martucci v New York City Employees' Retirement SYS., 248 AD2d 240 [1998]). A court may not substitute its own judgment for that of the Medical Board (Matter of Borenstein, 88 NY2d at 761; see also Matter of Schwarzrock v Board of Trustees of the New York City Fire Dept., 238 AD2d 596, 597 [1997], lv denied 91 NY2d 803 [1997]).

"After conducting its own medical examination of the applicant and considering the evidence submitted in support of the claim, the Medical Board, as a threshold matter, must certify whether the applicant is actually physically or mentally incapacitated for the performance of city-service'" (Borenstein, 88 NY2d at 760, quoting Administrative Code § 13-168 [a]). "If the Medical Board concludes that the applicant is disabled, it must then make a recommendation to the Board of Trustees as to whether the disability was a natural and proximate result of an accidental injury received in such city-service'" (id.). The "Medical Board's disability determination will not be disturbed if the determination is based on substantial evidence" (id. at 761), which in disability cases has been construed to require "some credible evidence"(id). With respect to this standard, the required quantum of credible evidence has been found lacking when the denial "was premised only on a summary conclusion of no causation and lacked any factual basis" (Meyer, 90 NY2d at 147, citing Matter of Brady v City of New York, 22 NY2d 601, 605-606 [1968]; Matter of Bennett v Board of Trustees, 20 AD2d 522, 522-523 [1963], affd 16 NY2d 562).

Specifically, "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" (Matter of Quinn, 29 Misc 3d 1203 [A], 2010 NY Slip Op 51678[U], * 13-14, citing Matter of Stack v Board of Trustees, 38 AD3d 562 [2007]; Matter of Rodriguez, 3 AD3d 501 [2004]; Matter of McAdams v Kelly, 17 Misc 3d 1112[A], 2007 NY Slip Op 51938[U] [2007]; Matter of Weller v Kelly, Sup Ct, NY County, index No. 109357/06, 2010 NY Misc. LEXIS 2768, 2010 NY Slip Op 31581[U] [2010];and Matter of Brady v Board of Trustees NY City Police Pension Fund, Sup Ct, NY County, Index No. 116273/07, 2008 NY Misc. LEXIS 9426, 2008 NY Slip Op 32529[U] [2008]; see also Matter of Dement v Kelly, 97 AD3d 223 [2012]).

Conversely, courts have upheld determinations which are supported by a rational, fact-based medical opinion" (Meyer, 90 NY2d at 147-148, citing Matter of Christian v New York City Employees' Retirement Sys., 56 NY2d 841, 843 [1982], affg 83 AD2d 507 [1981]; Matter of Simmons v Herkommer, 98 AD2d 651, 651-652 [1983], affd 62 NY2d 711 [1984]; see also Cammarota v Teachers' Retirement Sys., 205 AD2d 412 [1994]). Moreover, "[a]though the Board of Trustees is entitled to rely on the report and recommendation of the Medical Board, the proceedings should disclose the reason for the denial, and the determination must be set forth in such manner as to permit adequate judicial review" (Matter of Fernandez v Board of Trustees of NY Fire Dept. Pension Fund, Subchapter 2, 81 AD3d 950, 952 [2011]; see also Paccio v Kelly, 97 AD3d 415 [2012]). [*5]

In the instant case, the Medical Board indicates that it examined petitioner, however, it fails to articulate in its determination how the petitioner can perform the physical duties of a commercial bus operator given the limitations to the range of motion of his back and neck that its own physical examination revealed (see Matter of Louis v New York City Employees' Retirement Sys., 26 Misc 3d 1236(A) [2010]; Matter of Samadjopoulos v New York City Employees' Ret. Sys., 19 Misc 3d 1123(A) [2008]). In addition, missing from the Medical Board's determination is any discussion regarding the fact that petitioner revealed that he takes the narcotic drug Vicodin three times a day for pain relief and the effects it could impose upon the safety of the passengers on a bus petitioner was driving and the other persons frequenting the City's roadways (see Matter of Quinn v Cassano, 29 Misc 3d 1203(A) [2010]; Tesoriero v Board of Trustees, 17 Misc 3d 497, 503 [2007]; Matter of Marley v Board of Trustees of New York Fire Dept., Art. 1-B Pension Fund, 15 Misc 3d 1068 [2007]).

Here, the Medical Board's Report merely summarized some of the physician reports submitted by petitioner, primarily those that supported its determination, while failing to address the findings of Drs. Alvarez and Glassman, both of whom performed independent medical examinations of plaintiff in connection with his Workers' Compensation claims, and both of whom determined that petitioner was incapable of performing the duties of a bus driver. Although the Board performed its own physical examination of petitioner, the Board's report fails to set forth the Board's reasons for concluding that petitioner is not disabled from performing his duties as a bus operator. As such, the Medical Board's final determination is not in "such form as to permit adequate judicial review" (Perkins v Board of Trustees of the New York Fire Department Article 1-B Pension Fund, 59 AD2d 696, 697 [1997]). An agency's failure "to set forth an adequate statement of the factual basis for the determination forecloses the possibility of fair judicial review and deprives the petitioner of his statutory right to such review" (Montauk Improvement, Inc. v Proccacino, 41 NY2d 913, 914 [1977]; Matter of Samadjopoulos v New York City Employees' Retirement Sys., 19 Misc 3d 1123(A) [2008]).

The court finds that the Medical Board's determination that petitioner could perform all of his duties as a bus operator is not rational. The Medical Board found that petitioner had significant deficits in the range of motion of his back and neck yet failed to explain how he was fully capable of operating a commercial bus including performing pre-and post-trip inspections, seeing and anticipating traffic hazards at a distance and in all directions; sitting for long periods of time; and operating a wheel chair lift (see Matter of Rodriguez v Board of Trustees of New York City Fire Dept., Art. 1-B Pension Fund, 3 AD3d 501, 502 [2004]; Matter of Louis v New York City Employees' Retirement Sys., 26 Misc 3d 1236(A) [2010]; Matter of Samadjopoulos, 19 Misc 3d 1123(A) [ 2008]).

In view of the foregoing, the court finds the determination of the Medical Board that petitioner does not have a physical disability that is disabling or prevents him from operating a commercial bus is conclusory and not supported by credible evidence. Thus, the petition is granted to the extent of annulling the determination of the Board of Trustees denying petitioner's application for an ADR and remanding the matter for further consideration in light of all of the proffered medical evidence.

This constitutes the decision and order of the court.

E N T E R, [*6]

J. S. C.