Basciano v. Herkimer

605 F.2d 605, 1978 U.S. App. LEXIS 7710
Court of Appeals for the Second Circuit·Decided November 15, 1978·No. No. 997, Docket 78-7035·Published·Cited by 37 cases

Opinion

TIMBERS, Circuit Judge:

This is an appeal from a judgment entered in the Southern District of New York, Charles M. Metzner, District Judge, on a motion for summary judgment by the City of New York, dismissing the complaint of a former City employee who claimed that the City’s procedure for determining his eligibility for accident disability retirement benefits deprived him of due process of law.

For the reasons below, we affirm.

I.

The facts are straightforward and not in dispute. Both sides moved for summary judgment below.

On February 27, 1973 Basciano sustained a back injury while employed as a laborer by the City’s Department of Water Resources. He was engaged at the time in pulling rods from a sewer in Brooklyn.

A week after the accident Basciano reported his back pain to his own doctor. The latter found the x-rays normal but diagnosed Basciano’s condition as a paralumbar muscle spasm with resulting tenderness in the lower back. The doctor advised Basciano to rest at home, recommended a course of physical therapy, and told him not to return to work. Basciano’s condition thereafter was re-evaluated periodically by his doctor whose final diagnosis was chronic back spasm. Basciano did not return to work.

On November 21, 1974, twenty-one months after the accident, Basciano applied for accident disability retirement benefits under the City’s Employees’ Retirement System (the System). In support of this application he submitted reports of seven doctors regarding his alleged disability, together with statements from his co-workers and his supervisor concerning the accident.

On April 29, 1975 Basciano was interviewed by the Chief of the System’s Medical Division concerning his employment status and the circumstances of the accident.

On June 12, 1975 he was examined by three doctors from the System’s Medical Board (the Board). During this examination the doctors probed the area around Basciano’s injury and instructed him to perform a number of movements. Their report noted that motion in his lower back was restricted, that he complained of tenderness, but that there was no spasm (contrary to the diagnosis of Basciano’s doctor). On the basis of this examination and the medical history, the Board concluded that Basciano was not disabled and there[607] fore was not eligible for accident disability retirement benefits.

The Board’s report was forwarded to the System’s Trustees who denied Basciano’s application on August 15, 1975.

The Trustees thereafter advised Basciano that he had the right to examine the evidence used by the Board in reaching its decision. He did so. After reviewing the evidence he requested the Board to reconsider its decision. He also submitted additional evidence not previously considered by the Board.1

On November 23, 1976 Basciano again was examined by three doctors from the Board, none of whom had participated in Basciano’s prior examination. They again found some restriction of movement but no muscle spasm. The Board affirmed its pri- or decision that Basciano was not disabled and recommended that his application for disability benefits be denied.

On January 23, 1977 the Trustees accepted the Board’s recommendation and affirmed the Trustees’ prior denial of benefits to Basciano.

On May 17,1977 Basciano commenced the instant class action2 pursuant to 42 U.S.C. § 1983 (1970) seeking declaratory and injunctive relief. Among other claims, he asserted that the City’s failure to grant an opportunity for a hearing to applicants who are denied accident disability retirement benefits violates the due process clause of the Fourteenth Amendment.

Upon cross-motions for summary judgment, the district court on December 13, 1977 filed an opinion holding that Baseiano’s interest in accident disability retirement benefits is protected by due process and that the System’s procedure satisfied the requirements of due process.

From the judgment entered December 15, 1977 on Judge Metzner’s opinion, the instant appeal has been taken.

II.

Basciano challenges on due process grounds the constitutionality of the procedure pursuant to which he was denied disability retirement benefits under the City’s retirement system. This requires an analysis of the relevant provisions of the Administrative Code of the City of New York (the Code), which are set forth in the margin.3 Such analysis is rendered somewhat diffi[608] cult by the obscurity of those provisions. Nevertheless, the following is a brief summary of the procedure provided by the Code — and the procedure pursuant to which Basciano’s application was processed in the instant case, as stated above.

Section B3-40.0 of the Code sets forth the procedure for determining whether a City employee has become physically or mentally incapacitated for further work as the result of an accident sustained while working as a City employee. Such determination in favor of the employee is a necessary predicate for awarding him disability retirement benefits.

The determination required by § B3^40.0 is made by a Medical Board (the Board) composed of three physicians in accordance with § B3 — 13.0 of the Code. The applicant for disability retirement benefits must submit to a medical examination and investigation by, or under the supervision of, the Board. The applicant may submit documentary medical evidence to the Board before his medical examination.

If the Board finds that the applicant has sustained an accident disability as the result of his City employment, it so certifies to the Trustees who are constituted in accordance with § B3-2.1 of the Code. In such event, the Trustees are required to retire him for such disability.

If, however, the Board makes a determination adverse to the applicant, the latter [609] may review the evidence relied upon by the Board and may request reconsideration upon a showing of new evidence. The Trustees in such event may refer the case back to the Board for re-evaluation. The Board then may require the applicant to submit to a further medical examination.

In arguing that this procedure is constitutionally inadequate, Basciano contends that an application for disability should not be denied on the basis of a Board examination until the applicant is given a full hearing before an impartial decision maker. At such a hearing, Basciano contends, the applicant should be entitled to subpoena physicians, to testify himself, and to present other evidence on his own behalf.

We shall discuss below Basciano’s contentions, as well as other aspects of the procedure which appear to be bothersome — both on the face of the Code and as applied here.

III.

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Basciano v. Herkimer, 605 F.2d 605, 1978 U.S. App. LEXIS 7710 (2d Cir. 1978).

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