Vecchiarello v. Board of Trustees of Police Pension Fund

115 Misc. 2d 241, 453 N.Y.S.2d 971, 1982 N.Y. Misc. LEXIS 3667
CourtNew York Supreme Court
DecidedJune 4, 1982
StatusPublished

This text of 115 Misc. 2d 241 (Vecchiarello v. Board of Trustees of Police Pension Fund) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vecchiarello v. Board of Trustees of Police Pension Fund, 115 Misc. 2d 241, 453 N.Y.S.2d 971, 1982 N.Y. Misc. LEXIS 3667 (N.Y. Super. Ct. 1982).

Opinion

OPINION OF THE COURT

Peter J. McQuillan, J.

Petitioner has made a motion for a judgment, pursuant to CRLR article 78, annulling respondent’s determination that petitioner be denied accident disability retirement and compelling respondent to award to petitioner an accident disability pension retroactive to March 23, 1977.

Petitioner was appointed a police officer on April 3,1968. Prior to his appointment, petitioner was found to be medically and physically qualified for the position of police officer.

In late 1974, petitioner was diagnosed as having rheumatic heart disease with mitral stenosis. In January, 1975, petitioner entered a hospital for examination. His condi[242]*242tion was diagnosed as “mitral stenosis and insufficiency. Aortic insufficiency.” An X-ray examination revealed findings “compatible with rheumatic mitral disease.”

In March, 1975, petitioner again entered a hospital and underwent open heart surgery for replacement of the mitral valve with a prosthetic device. His condition was diagnosed as “rheumatic heart disease.” In July, 1975, petitioner submitted an application for accident disability retirement due to heart disease. Petitioner relied on the statutory presumption prescribed in section 207-k of the General Municipal Law (Heart Bill) which provides as follows: “Notwithstanding the provisions of any general, special or local law or administrative code to the contrary * * * any condition of impairment of health caused by diseases of the heart, resulting in total or partial disability * * * to a paid member of the uniformed force of a paid police department * * * where such * * * policemen * * * are drawn from competitive civil service lists, who successfully passed a physical examination on entry into the service * * * which examination failed to reveal ariy evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.”

In December, 1975, petitioner was examined by the Medical Board of the Police Pension Fund, Article II. This board found him disabled due to his cardiac condition, but recommended disapproval of his application for accidental disability retirement because “the occurrence of mitral valve disease without physical trauma is not construed to be job-related.”

Petitioner had submitted to the medical board a letter from his childhood doctor to the effect that he never had rheumatic fever nor any signs of heart disease.

Thereafter, the police commissioner, on petitioner’s behalf, submitted an application for accident and ordinary disability retirement. In December, 1976, the medical board recommended: (a) approval of the commissioner’s application for petitioner’s ordinary disability retirement; and (b) denial of the commissioner’s application for petitioner’s accident disability retirement. The medical board [243]*243concluded that although petitioner was disabled by mitral valve disease, this condition was not “job related or line of duty incurred.”

On March 23, 1977, the respondent board of trustees adopted a resolution accepting the recommendation of the medical board and retired petitioner for ordinary disability, denying the request for accident disability retirement. In July, 1977, petitioner commenced an article 78 proceeding. This matter was later remanded to respondent board of trustees pursuant to a stipulation by the parties. In November, 1977, the board of trustees remanded petitioner’s application to the medical board for reconsideration.

In a report dated February 13,1978, the chairman of the medical board stated, in part:. “[HJeart disease related to stress either physical or psychological has been presumed to be job related, or line of duty incurred. Hypertensive Cardiovascular disease and arteriosclerotic (coronary) heart disease are deemed to be related to stress and therefore to the stresses of police work. These predisposing causative factors are prolonged ones. If an individual suffers acute myocardial infarction away from his job, the chronic predisposing factors have still been recognized as operative and such an event is considered job related under the present law. However, heart diseases for which the causes are either unknown or known not to be related to stress either psychological or physical are etiologic categories which have not been allowed under the provisions of the Heart Bill because they are deemed not to be related to work or line of duty activities either directly or indirectly. A prolapse of the mitral valve of the heart is considered by the medical profession not to be stress related and therefore by the Medical Board not to be related to police work in any way. The only exception is in cases where prolapse of the mitral valve is an accompaniment of myocardial infarction, which is a stress related disease and therefore allowed under the provisions of the Heart Bill * * * I trust this policy statement will clarify the philosophy of the Cardiology Board of the Medical Board Article II in its dealing with various applications.”

On May 1, 1978, the medical board submitted an additional memorandum which stated, in part, that it “views as [244]*244eligible for the Heart Bill benefits those individuals who have heart disease that in some way can be contributed to or caused by physical or emotional stress. Rheumatic heart disease does not fall within this causative category, since its cause is acute rheumatic fever usually occurring in childhood or adolescence.”

In June, 1978, respondent denied petitioner’s application for accident disability retirement. The petitioner’s article 78 application was restored to the Special Term Calendar. In an opinion dated January 16, 1979, Justice Alvin F. Klein vacated the respondent’s determination and remanded the matter to the board of trustees for further proceedings not inconsistent with the court’s decision.

In November, 1980, the medical board reconsidered petitioner’s application and reaffirmed its denial of his application for accident disability retirement. The medical board made these observations: “Police Officer Vecchiarello suffered from mitral valve disease which required replacement of his mitral valve by surgery. It is a matter of general knowledge that mitral valve disease is not incurred in the line of duty and competent evidence meaning the opinion of all qualified cardiologists, and not some or even a majority of cardiologists, would consider that mitral valve disease is not due to the performance or discharge of any occupation including police work. It is medical fact that mitral valve disease is not job related and it is unanimously held by all medical practitioners knowledgeable in this disease that this is so. This unanimity of medical opinion is considered by the Medical Board to be competent evidence, and therefore, on this basis it was considered that Police Officer Robert Vecchariello did not have a condition for which Heart Bill benefits should have been granted.”

On October 8, 1981, the board of trustees reviewed petitioner’s application for accident disability retirement, and denied it. The board reaffirmed its prior approval of ordinary disability retirement. Petitioner then instituted the instant proceedings.

Petitioner argues that respondent has failed to produce competent evidence to rebut the statutory presumption that his heart disability was incurred in the performance [245]*245and discharge of duty.

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Bluebook (online)
115 Misc. 2d 241, 453 N.Y.S.2d 971, 1982 N.Y. Misc. LEXIS 3667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vecchiarello-v-board-of-trustees-of-police-pension-fund-nysupct-1982.