The following e-filed documents, listed by NYSCEF document number (Motion 001) 34, 35, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER).

Petitioner Susan Michlik-Klipp (petitioner), widow of retired New York City Fire Department ("FDNY") firefighter, Kenneth Klipp ("firefighter Klipp"), brings this Article 78 proceeding against The Board of Trustees of the FDNY ("the Board"), the New York City Fire Pension Fund ("Pension Fund") and Laura Kavanagh ("Kavanagh"), the Fire Commissioner of the FDNY and the Chairperson of the Board of Trustees of the Pension Fund, (collectively "respondents"). Petitioner moves to annul respondents' denial of her application for World Trade Center ("WTC") line of duty death benefit pension pursuant to Administrative Code of City of NY § 13-353.1 (3).

For the reasons stated below, petitioner's application is granted, and the matter is remanded to respondents for reconsideration consistent with this decision of the Court.

Petitioner is the widow of firefighter Klipp, who joined the FDNY in 1985 and retired in [*2]2016 (NYSCEF Doc No. 3 ^[FN1] , p. 6; NYSCEF Doc No. 40, Exhibit 1, notice of participation; NYSCEF Doc No. 48, exhibit 5, marriage certificate). During his employment of over 30 years with FDNY, firefighter Klipp responded to the World Trade Center site after the terrorist attack on September 11, 2001 and "spent sufficient time . . . to qualify for WTC retirement benefits under the New York City Administrative Code and the New York State Retirement and Social Security Law" (Memo of Law, NYSCEF Doc No. 3, p. 6).

Subsequent to his retirement, firefighter Klipp was admitted to New York Presbyterian Hospital on September 24, 2018 for abdominal pain (NYSCEF Doc No. 62, exhibit 19, Klipp's medical records, p. 6). During this hospital stay, he was diagnosed with perforated diverticulitis, was intubated upon admission, extubated on September 25, 2018 and re-intubated on September 27, 2018 for hypoxic respiratory failure (id., pp. 62 - 63).

On October 7, 2020, firefighter Klipp was admitted to the New York Community Hospital (NYSCEF Doc No. 41, Exhibit 2, Klipp's medical records, p. 1). He was 59 years old at the time and he initially presented with nausea, vomiting and tremors (id., pp. 6, 9-10). Firefighter Klipp's condition worsened during this hospital stay where, among other things, he went into respiratory failure, was intubated, had a lung collapse, and experienced hypertension, a stroke, pneumonia and sepsis (id., pp. 46, 54-55, 65, 240). Firefighter Klipp was pronounced dead on November 3, 2020 (NYSCEF Doc No. 45, exhibit 2, Klipp's medical records, p. 1472; NYSCEF Doc No. 46, exhibit 3, Klipp's death certificate). No cause of death was indicated in his medical records, (NYSCEF Doc No. 45, p. 1472), and no autopsy was performed.

After firefighter Klipp's death, petitioner filed an application with respondents for a WTC line of duty death benefit pension, dated December 29, 2020, pursuant to Administrative Code of City of NY § 13-353.1 (3) (NYSCEF Doc No. 47, exhibit 4, petitioner's application). In support of her application, petitioner submitted, among other things, firefighter Klipp's medical records and two reports from board certified cardiologist Dr. Bruce Charash, F.A.C.C.^[FN2] ("Dr. Charash"), dated February 17, 2022 and October 7, 2022 (NYSCEF Doc No. 3, pp. 8-9).

Dr. Charash reviewed firefighter Klipp's medical records and opined that his death was a "direct consequence of his exposure to inhaled particles due to his work at Ground Zero after 9/11" (NYSCEF Doc No. 56, exhibit 13, Dr. Charash's February 2022 report, p. 1). Dr. Charash emphasized that firefighter Klipp "should have had a normal pulmonary performance" with his normal cardiac status and an absence of obstructive lung disease (id., p. 2). Yet, Dr. Charash opined that firefighter Klipp had a "catastrophic lung collapse" in 2020, and his exposure to inhaled toxins while working at Ground Zero after 9/11 resulted in "a degradation of his lungs and a damage to the local architecture of his lungs" (id., p. 3). Dr. Charash opined that exposure to inhaled toxins thus damaged firefighter Klipp's lungs on the "tissue level; creating a local state of immune compromise" that lead to his death (NYSCEF Doc No. 103, exhibit 54, Dr. Charash's October 2022 report, pp. 1-2, 4). Dr. Charash further emphasized that firefighter Klipp's CT scan from October 18, 2020 showed that firefighter Klipp had "pneumoconiosis caused by inorganic [*3]dust," which Dr. Charash described as damage to the tissue and a "disruption of the local lung tissue architecture," associated with the lung's inability to fight infections (id., p. 2). Dr. Charash concluded that firefighter Klipp demonstrated "a significant failure of his lungs" to fight infections as demonstrated by his extubation on "9/25/19" and re-intubation on "9/27/19"^[FN3] (id.). Dr. Charash determined that firefighter Klipp died due to his damaged lungs and their inability to fight infections (id., p. 4).

When the medical board considered petitioner's application on three separate occasions (the Board of Trustees remanded the matter for reconsideration twice), their report states that they reviewed the accompanying documents submitted by petitioner, including firefighter Klipp's medical records and Dr. Charash's reports (NYSCEF Doc Nos. 49, exhibit 6 - medical board's January 2022 report - Doc No. 55, exhibit 12 - medical board's May 2022 reports - and Doc No. 102, exhibit 53 - medical board's January 2023 report). Again, despite no cause of death having been given on his death certificate or in his medical records, and no autopsy having been performed, the medical board concluded that firefighter Klipp died "as a consequence of a cerebral vascular accident,^[FN4] in the face of defined hypertension and hypertensive heart disease, with multiple systemic complications" (NYSCEF Doc No. 49, p. 4).

In its review, the medical board summarized a sequence of events that firefighter Klipp experienced during his hospital admission in 2020: firefighter Klipp was admitted due to vomiting with a history of diverticulitis, reversal colostomy and hypertension; exhibited symptoms of alcohol withdrawal; experienced arm and leg weaknesses and facial paralysis; was intubated; experienced a lung collapse, pneumonia, and C-diff colitis; leg swelling; lung infection; was deemed to have septic shock and was diagnosed with "sepsis secondary to staph aureus" (id., pp. 1-3). However, they fail to detail how these events definitely led to his death or how they conclude that his death was caused by the cerebral vascular accident (stroke). Their reports state that because cerebral vascular accident (stroke) is not considered a WTC qualifying condition, the medical board unanimously recommended that petitioner's application be denied. (see NYSCEF Doc Nos. 49, 55 and 102).

The medical board emphasized that based on their review of the medical records and the remanded documentation, there was insufficient "credible objective medical evidence" that firefighter Klipp had "any underlying lung disease," including a predisposition to development of aspiration pneumonia" (NYSCEF Doc No. 55, p. 8; NYSCEF Doc No. 102, pp. 2-3). They listed different testing that firefighter Klipp underwent over the years and opined that despite firefighter Klipp's lung failure in 2020, he had normal lung functioning before then based on spirometry testing, older imaging studies, chest x-rays, and a "normal" 2016 pulmonary function test (PFI).They also list a 2018 PFT showing a minimal obstructive lung defect. They noted that his heart size and "pulmonary vasculature" were normal in a chest x-ray dated October 7, 2020 (NYSCEF Doc No. 55, pp. 5, 6; NYSCEF Doc No. 102, p. 2).

The medical board further opined that Dr. Charash's opinion that firefighter Klipp's death [*4]was caused by significant local immune compromise within his lungs is speculative with no evidence to support it (NYSCEF Doc No. 102, p. 3), despite Dr. Charash's reliance on the same medical records and other documentation as the medical board, as well as his extensive background as a cardiologist and his well-supported reports. The medical board emphasized that firefighter Klipp had a normal pulmonary function test in 2016, four years before his death at NYU with normal results, and that he saw a pulmonary consultant for preoperative clearance for his colostomy reversal surgery in January 2019 (id., p. 2), but they do not comment on his pulmonary function test that shows an obstructive lung defect. As for the 10/18/2020 CT Scan that diagnosed firefighter Klipp with "pneumoconiosis caused by organic dust," relied upon by Dr. Charash, the medical board argued in its January 5, 2023 report that this diagnosis was made by just "one attending physician taking care of the patient but there is no evidence that it was factual" without giving any evidence that it was not (id., p. 3). Notably, the medical board did not question the validity of any other medical records or the veracity of reports by any other medical professionals on which they relied in making their own determination of Klipp's cause of death.

The medical board further called into question Dr. Charash's declaration in his report dated February 17, 2022 that firefighter Klipp was in "otherwise good health" when firefighter Klipp's medical records show that he was "diabetic with hypertension, a long history of cigarette smoking, and chronic alcoholism" (id., p. 2). While the medical board attempts to discredit Dr. Charash in part because of his comment that firefighter Klipp was "otherwise in good health", they failed to include the doctor's full statement which gives this statement context:

Given his otherwise healthy condition (his remaining physical active and routinely performing aerobic exercise) and given his strong cardiovascular system, Mr. Klipp should have been easily weaned off the ventilator within days of his admission to NY Community Hospital. Yet his lungs demonstrated progressive and catastrophic failure. He developed a fungal ball in his right upper lobe (which does not happen to patients with healthy lungs and in patients without general immune compromise). Mr. Klipp was strong and fit, and he had no demonstrable reason for his pulmonary decompensation.

In his October 7, 2022 report, Dr. Charash responds to the medical board's speculation in its report that because firefighter Klipp did not demonstrate problems with his lungs including prior to the final events leading to his death, his death could not have been caused by a respiratory condition, by emphasizing that the 10/18/2020 CT scan showing that firefighter Klipp developed pneumoconiosis caused by inorganic dust, " is an unambiguous statement linking his Ground Zero exposure to his developing underlying lung disease. Again, though he did not develop traditional COPD, his lungs were irrevocably damaged. Mr. Klipp died because his lungs were damaged due to his inability to successfully fight infections. Hence his death is directly related to his Ground Zero exposure to toxins" (NYSCEF Doc. No. 17, p 4).

The medical board did not refer to any medical evidence to refute Dr. Charash's conclusion, and did not even mention or analyze the pneumoconiosis diagnosis in its first two reports. Instead, in its third review, following a second remand by the Board of Trustees directing that they review Dr. Charash's October 2022 report in which this diagnosis was again mentioned, the medical board challenged the diagnosis of "one attending physician taking care of the patient" and queried whether the report was even factual, rather than considering whether the diagnosis by that attending physician, who was caring for Klipp, and the subsequent [*5]diagnosis by Dr. Charash could be accurate. Following the medical board's third report, respondents adopted their recommendations to deny petitioner's application for WTC accidental death benefits pension.

Petitioner then commenced this Article 78 proceeding arguing that respondents' denial of her application should be annulled because firefighter Klipp died from a WTC qualifying condition as defined by the Retirement and Social Security Law. Specifically, petitioner argues that she offered credible medical evidence that her husband, firefighter Klipp, died from a WTC qualifying respiratory condition of local immune system compromise and pneumoconiosis caused by inorganic dust (NYSCEF Doc No. 3, p. 21) as required by the statute. Petitioner asserts that this shifted the burden on respondents to rebut the presumption of causation, pursuant to Administrative Code of City of NY § 13-353.1 (3), and that respondents have failed to meet their burden with competent evidence and ignored the evidence she presented.

In their opposition, respondents argue that their final determination to deny petitioner's WTC death benefits was neither arbitrary nor capricious. They argue that the presumption under Administrative Code of City of NY § 13-353.1 (3) does not apply because in their view firefighter Klipp died from a cerebral vascular accident. Respondents further argue that firefighter Klipp did not die from a respiratory condition, local immune compromise in the lungs and pneumoconiosis as argued by petitioner, a diagnosis that is in his medical records, because there is no evidence to support it and that Dr. Charash's report is speculative. However, whereas Dr. Charash's report is supported by a medical diagnosis, as well as other medical records and his analysis thereof, it is clear to this Court that the medical board's determination, without a cause of death having been listed on firefighter Klipp's death certificate nor an autopsy having been done, itself is speculative and respondents have not sufficiently rebutted causation pursuant to Admin. Code of City of NY§ 13-353.1 (3).

Respondents also argue that Dr. Charash is not a pulmonologist and that he stated that firefighter Klipp was "in otherwise good health" despite his medical history denoting otherwise, and that most of firefighter Klipp's previous testing through the years showed that he had normal pulmonary function. Respondents further argue that the medical board's analysis of the evidence itself constitutes "some credible evidence" and when there is conflict in the medical evidence, the medical board alone has the authority to resolve such conflicts. For these reasons, respondents argue that the medical board's decision was not arbitrary and capricious and should be sustained (To the extent that the court grants the petition, respondents argue that the only proper relief is to remand the case to the Board of Trustees).

Nonetheless, respondents fail to show that there is a conflict in the medical evidence. Respondents only differ from the conclusions drawn from it. Respondents refused to consider and accept a medical diagnosis contained in Firefighter Klipp's medical records, contributing to such differing conclusions. Additionally, respondents do not show how their expertise is greater than that of an attending physician who treated firefighter Klipp, or how Dr. Charash's opinion is meritless and inferior, warranting respondents' setting aside his detailed and well-supported opinion.

"'In reviewing an administrative agency determination, [courts] must ascertain whether there is a rational basis for the action in question or whether it is arbitrary and capricious'" (Matter of Murphy v New York State Div. of Hous. and Community Renewal, 21 NY3d 649, 652 [2013] [citations omitted]). An action is deemed arbitrary and capricious "when it is taken [*6]without sound basis in reason or regard to the facts" (id.).

"Ordinarily, a Medical Board's disability determination will not be disturbed if the determination is based on substantial evidence" (Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 760 [1996]; see also Macri v Kelly, 92 AD3d 53, 59 [1st Dept 2011], aff'd sub nom. Matter of Bitchatchi v Board of Trustees of the NY City Police Dept. Pension Fund, 20 NY3d 268 [2012]; Matter of Hipple v Ward, 146 AD2d 201, 207 [1st Dept 1989]). "While the quantum of evidence that meets the 'substantial' threshold cannot be reduced to a formula, in disability cases the phrase has been construed to require 'some credible evidence'" (Matter of Borenstein, 88 NY2d at 760 [emphasis added]). If the medical board's finding is supported by "some credible evidence," courts have found that the decision was not arbitrary and capricious (Smith v Shea, 209 AD3d 601, 602 [1st Dept 2022] [emphasis added and citations omitted]; see also Ramos v O'Neill, 210 AD3d 511, 511 [1st Dept 2022]; Matter of Rodriguez v Kelly, 8 AD3d 70 [1st Dept 2004]).

"Credible evidence 'is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered'" (Matter of Bitchatchi, 20 NY3d at 281 [citations omitted].; see also McAuley v Kelly, 103 AD3d 449, 451 [1st Dept 2013] [citations omitted]). Such evidence "must be evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion" (Matter of Bitchatchi, 20 NY3d at 281 [citations omitted]).

The beneficiaries of specific retirees who meet the pre-qualifying criteria and then die from a qualifying condition or impairment of health as defined by Retirement and Social Security Law § 2 (36), may be entitled to accidental death benefits under the WTC presumption (see Macri, 92 AD3d at 57). Specifically, the Administrative Code of City of NY § 13-353.1 (3) creates a presumption that the retiree's death was "a natural and proximate result of" their participation in the WTC rescue, recovery or cleanup operations if they die from a qualifying WTC condition (Macri, 92 AD3d at 57). The statute states in pertinent part:

"[I]f a retiree who: (1) has met the criteria of subdivision one of this section and retired on a service or disability retirement, or would have met the criteria if not already retired on an accidental disability; and (2) has not been retired for more than twenty-five years; and (3) dies from a qualifying World Trade Center condition, as defined in section two of the retirement and social security law, as determined by the applicable head of the retirement system or applicable medical board, then unless the contrary be proven by competent evidence, such retiree shall be deemed to have died as a natural and proximate result of an accident sustained in the performance of duty and not as a result of willful negligence on his or her part. Such retiree's eligible beneficiary, as set forth in section 13-347 of this subchapter, shall be entitled to an accidental death benefit as provided by sections 13-347 and 13-348 of this subchapter . . ."

"The significance of the presumption under the WTC Law is that first responders need not submit any evidence, credible or otherwise, of causation, to obtain enhanced benefits" (Matter of Fesler v Bratton, 156 AD3d 534, 534 [1st Dept 2017]). "[I]n order to obtain the benefit of the presumption of causation under the WTC Law," however, "the burden is on the petitioner [the beneficiary], to make [a] showing" that the retiree died from a qualifying [*7]condition by "presenting sufficient credible evidence" (Matter of Fesler v Bratton, 156 AD3d at 534-535; see also Matter of Bitchatchi, 20 NY3d at 275). If a beneficiary meets their burden of showing that the retiree died from a qualifying condition, "the Pension Fund bears the initial burden of coming forward with affirmative credible evidence to disprove causation" (Matter of McAuley v Kelly, 103 AD3d 449, 451 [1st Dept 2013] [citations omitted]).

A qualifying WTC condition is defined as

"a qualifying condition or impairment of health resulting in disability to a member who participated in World Trade Center rescue, recovery or cleanup operations for a qualifying period . . (b) 'Qualifying condition or impairment of health' shall mean a qualifying physical condition, or a qualifying psychological condition, or both, except . . . (c) "Qualifying physical condition" shall mean one or more of the following: (i) diseases of the upper respiratory tract and mucosae, including conditions such as rhinitis, sinusitis, pharyngitis, laryngitis, vocal cord disease, and upper airway hyper-reactivity, or a combination of such conditions; (ii) diseases of the lower respiratory tract, including but not limited to tracheo-bronchitis, bronchitis, chronic obstructive pulmonary disease, asthma, reactive airway dysfunction syndrome, and different types of pneumonitis, such as hypersensitivity, granulomatous, or eosinophilic; (iii) diseases of the gastroesophageal tract, including esophagitis and reflux disease, either acute or chronic, caused by exposure or aggravated by exposure; (iv) diseases of the skin such as conjunctivitis, contact dermatitis or burns, either acute or chronic in nature, infectious, irritant, allergic, idiopathic or non-specific reactive in nature, caused by exposure or aggravated by exposure; or (v) new onset diseases resulting from exposure as such diseases occur in the future including cancer, asbestos-related disease, heavy metal poisoning, and musculoskeletal disease"

(Retirement and Social Security Law § 2 [36] [b] and [c]).

Applying the law to the facts at hand, respondents improperly adopted the medical board's recommendation to deny petitioner's application for a WTC line of duty death benefit pension on the grounds that firefighter Klipp did not die from a qualifying condition (see Matter of Hanson v Shea, 214 AD3d 413, 414 [1st Dept 2023]). The medical board disagreed, without sufficient medical support, with Dr. Charash's opinion that firefighter Klipp's death was caused by a significant local immune compromise within his lungs and pneumoconiosis caused by organic dust, which was supported by firefighter Klipp's medical records. While the medical board does not appear to challenge that the diagnosis of pneumoconiosis would be a qualifying condition under WTC law, it argues that the diagnosis was an opinion of "one attending physician with no medical evidence that it was factual": as none of the formal testing by the department of radiology mentioned such diagnosis (NYSCEF Doc No. 102, p. 3).

However, they fail to show credible medical proof in support of their own conclusions. Although the "resolution of . . . conflict in evidence [falls] within the sole province of the NYCERS Medical Board and the Board of Trustees," (Ramos v O'Neill, 210 AD3d 511, 512 [1st Dept 2022]; see also Russell v New York City Fire Pension Fund, 192 AD3d 442, 443 [1st Dept 2021]), the medical board's decision that such a qualifying diagnosis should be discredited because it was an opinion of one attending physician is arbitrary and capricious. Without exploring the physician's basis of opinion, that the diagnosis was made by "one attending physician" does not change the fact the diagnosis appears in firefighter Klipp's medical records.

To the contrary, the medical board's speculative conclusion that firefighter Klipp died "as a consequence of a cerebral vascular accident, in the face of defined hypertension and hypertensive heart disease, with multiple systemic complications" (NYSCEF Doc No. 49, p. 4) is not supported by firefighter Klipp's medical records. While he did have a stroke, the medical board does not point to medical records that were considered in making their conclusion that a stroke or heart disease caused his death. Notably, Dr. Charash, who is a cardiologist, does not support the medical board's conclusion that the stroke and hypertensive heart disease contributed to firefighter Klipp's death. His report of 2/17/2022 reflects that Firefighter Klipp had a normal, and even "excellent" cardiac status, with no pulmonary hypertension or valvular heart disease."

Additionally, there may be many reasons that the Department of Radiology failed to mention the diagnosis of "pneumoconiosis caused by inorganic dust" and the medical board cannot use that absence as a reason to discredit Dr. Charash's well supported medical opinion, (or the diagnosis of the attending physician who made the diagnosis of pneumoconiosis).According to Dr. Charash's February 2022 report (NYSCEF Doc No. 15, p. 3):

The only reasonable explanation for Mr. Klipp's deterioration and ultimate death (on 11/3/20) was the damage to his lungs microscopically from toxins inhaled during his recovery work at ground zero after 9/11. Dust, heavy metals, and other toxins were introduced into his lungs, and they remained there after his recovery work was finished. This resulted in damage to the architecture of his lungs.

It did not cause bronchitis or asthma. The toxins did not cause any overt signs or symptoms of lung disease. But the toxins left his lungs vulnerable to infection (including opportunistic infections) because of how they weakened the internal defense system of the lungs.

Dr. Charash's October 2022 report discussed that pneumoconiosis is a "disease of the lung tissue and does not show up on standard breathing tests. It is not a form of COPD. Instead, it is damage to the tissue and disruption of the local lung tissue architecture" (NYSCEF Doc No. 17, p. 2). Dr. Charash also provided that "[t]he toxins in his lungs had caused local tissue damage that weakened the natural ability of his lungs to fight and ultimately clear infections. The toxic damage in his lungs included the cells that line the airways, reducing their ability to move infectious material out of the local tissue and into his main airways (id.).

For all of the foregoing reasons, the Court finds that respondents' decision to adopt the medical board's recommendation to deny petitioner's application for WTC line of duty death benefit pension, pursuant to New York City Administrative Code § 13-353 (3) and Retirement and Social Security Law § 2 (36), was arbitrary and capricious (see Jefferson v Kelly, 51 AD3d 536, 537 [1st Dept 2008]). The Court remands the matter to the Board of Trustees for further proceedings that take this Court's decision into account. In view of the foregoing, the Court is [*8]granting petitioner's motion as it seeks to remand to respondents for reconsideration of petitioner's line-of-death benefit.

Accordingly, it is hereby

ORDERED, that the petition is granted in that petitioner's line-of-death benefit pursuant to the World Trade Center legislation shall be remanded back to respondents for reconsideration consistent with this decision of the Court.

The foregoing constitutes the decision and order of the Court.