By:  Sean Patrick Riordan, Esq.  |  Sherman, Federman, Sambur & McIntyre, LLP.

    It is unmistakable that municipal pensions have been under attack for several years. It is no secret that several elected officials have taken aim at the defined benefit plans paid by city and state pension systems. Various media sources have also sought to turn public opinion on the pension issue, running story after story on the "need" for pension reform and the "positive attributes" of defined contribution plans. While this article isn't meant to tackle this hotly debated topic, the impact that the general public discourse has had on disability systems cannot be ignored.

    Newspaper articles regarding disability recipients daily activities have graced occasional front pages, missing the ultimate point of whether the individual's impairments prevent their ability to perform the full duties required of their job. Despite the articles' inaccurate consideration of the proper legal standard of analysis, pension system's responses have been clear; even legitimately disabled workers can and will be denied their disability pensions.

    With greater denial at the application stage many workers will now be faced with the difficult decision of whether to proceed to an Article 78 appeal and ask a Supreme Court Judge to overrule the decision of the pension system. Why is the decision so difficult? Because a number of factors must be weighed, and weighed competently.

    First, courts have traditionally been reluctant to overturn the decisions of administrative agencies. The law generally holds the administrative agency to be in the best position to make decisions within its specialty and therefore gives deference to its determinations. Article 78 proceedings reflect this deference by placing a very high burden on petitioners (the worker) in trying to overturn an agency decision. To win an Article 78 the worker must show (1) that the agency determination contained an error of law, or (2) was arbitrary or capricious, or (3) was an abuse of discretion. While this may sound simple enough, this high standard makes these cases very difficult to win.

    Another important factor to consider is the type of denial you may have received.  The pension board may deny an Accidental Disability Retirement ("ADR") application for three reasons, (1) You are not permanently incapacitated from your full duties and responsibilities, or (2) you were not injured due to an "accident", or (3) your disability is not due to your on the job accident, this is generally called a "causal relationship" finding.  How your application was denied will assist in determining what direction your case will proceed.

    Whether you sustained an on the job "accident" is something that you should seek counsel about. While the courts have defined what an "accident" means, "a sudden, fortuitous mischance, outside the risks of one's duties and injurious in impact", retirement systems have been far less definitive on what scenarios actually meet this definition. To say the law surrounding what constitutes an "accident" is fuzzy is an understatement. However, some occurrences are simply not accidents under the law and competent legal counsel can guide you on whether or not to pursue a denial on this ground. If you have a sound basis for believing that an occurrence is an accident however, this is the best way to win an Article 78 appeal.

    Permanent incapacity and causality are issues that are much more difficult to win at the Article 78 phase. The courts have made clear, they will not substitute their own opinion for that of the Medical Board or the Board of Trustees. In permanency cases this means that even if multiple medical opinions state that you are permanently incapacitated from the job, as long as the Medical Board bases its decision on "some credible evidence and is not irrational," its determination will be upheld. 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." This means, simply put, a Medical Board's examination and subsequent opinion regarding permanent incapacity is almost, by itself, "credible evidence." This simple fact makes appealing the Medical Board's negative determination on permanence almost fruitless.

    I say "almost fruitless" because over the past several years the courts have handed down several decisions which have found the Medical Board's determination to lack "credible evidence." The basis for the majority of these decisions point to the various Medical Boards' conclusory opinions and lack of articulation in its findings.  For instance, a recent Supreme Court, Kings County decision stated:

"the Medical Board must do more than simply identify reports and tests and state its conclusion; it must address the evidence before it and explain why the evidence it discounts is not valid, and why the evidence it relies upon is more persuasive, explaining why the opinions and diagnoses that are relied upon are incorrect."  

    As the Medical Boards continue to resort to simply stating conclusory findings without articulation of its rationale Article 78's remain a viable option for those that have been found not permanently incapacitated. Where substantial medical evidence exists that an individual is permanently incapacitated and the Medical Board fails to properly analyze the medical evidence before it, the courts will continue to overturn the permanent incapacity decisions.   

    Courts are equally reluctant to overturn "causality" decisions made by a Board of Trustees and will not substitute its theory of causality for that made by the Board. Frequently the best way to win cases in this area is by claiming "error of law." Where the  Medical Board finds that "degenerative conditions" or "pre-existing conditions" are the cause of the worker's permanent incapacity they must also consider whether a subsequent on the job accident "permanently aggravated or exacerbated the underlying dormant condition." This means that even when an individual has an underlying medical condition, if such individual sustains an on-the-job accident which makes that condition disabling, the accident is the cause of the disability. This is a legal burden that many pension boards do not address when making causality decision and can be a viable avenue for appeal.  

    Additionally, "presumptive bills" regarding the World Trade Center, heart bills and lung bills require the pension system to rebut causality, placing the burden on the pension system to disprove that the job caused such impairments. Frequently the system fails to meet its legal burden in this area.

    Two final factors should be considered in determining whether to proceed with an Article 78 appeal. First, and what many litigants do not understand, is that courts have the right to "reverse" or "remand" a decision. In cases where permanent incapacity and causality, it is infrequent that a court will reverse the findings of the agency. This is because the court would have to find "as a matter of law" that an individual is disabled from full duty or that a particular occurrence is the cause of the disability. This leads to many of the decisions being "remanded" to the pension system for further processing. In this scenario a "win" merely allows the individual the ability to again be heard before the pension board, an outcome that not all are happy with.

    Lastly, Article 78's can be very expensive endeavors. From legal fees (which sometimes are exorbitant)  to filing fees and binding requirements, Article 78 appeals can run into thousands of dollars of expenses. Far to many cases with unrealistic opportunity of success are taken up to Article 78 appeal, wasting the individuals money and creating bad case law for all. Before you jump into an Article 78, have a frank and realistic conversation with your attorney about the possibilities of success.

    As always, if you have any questions about Article 78's, or any questions regarding your disability rights, please do not hesitate to contact Sherman, Federman, Sambur, & McIntyre at (866) 557-7500.