State Supreme Court Justice Geoffrey D. Wright has overturned a determination by the Police Pension Fund’s trustees that a Police Surgeon was not eligible for a three-quarters disability pension under the Heart Bill because Surgeons were not under the same stress as other police officers.

The city’s position “runs contrary to the law, past practice and past court decisions,” said Roy Richter, president of the Captains Endowment Association, whose members include Police Surgeons. “I am happy with Judge Wright’s decision finding the city’s action arbitrary and capricious. The Heart Bill contains a long-established presumption that cannot be taken away by a political whim.”

A Job-Related Presumption

“The city Law Department has a long history of opposing the Heart Bill which, unlike most other pension bills, was mandated by statute and not achieved through the collective-bargaining process.” said attorney Robert A. Ungaro, who handled the Supreme Court case. “Pension benefits established without the city’s participation have no less force and effect and may not be arbitrarily diminished or capriciously denied.”

The Heart Bill creates a presumption that heart conditions in covered employees were created by the accumulation of stress and strain over their years on the job and therefore the workers are entitled to accidental disability retirement with three-quarter pensions. The bill covers police officers, firefighters, correction officers, sanitation workers and emergency medical technicians. It does allow the employer to present evidence that the heart condition was not caused by the job.

However, the pension board did not present such evidence in the case of Dr. Lea C. Dann, according to Justice Wright’s opinion. Neither did it give evidence that a Police Surgeon’s job is less stressful than that of any other police officer, according to Justice Wright.

Dr. Dann was appointed in 1982. A physical exam at the time showed no evidence of heart problems. Her job responsibilities included working part-time at the Medical Division clinic and being on-call once a month to visit officers being treated in hospitals or attend to them during emergencies.

Turned Down in Tie Vote

In May 2011, she underwent a cardiac cauterization, which found heart problems that another NYPD physician concluded made her a poor candidate for full-time duty. At that, point, she sought retirement based on the Heart Bill. The Police Pension Fund’s Medical Board approved it, but the fund’s trustees after protracted discussion voted 6-6 regarding a Heart Bill pension. A tie in such votes means the applicant receives an ordinary disability retirement instead.

At least 10 Police Surgeons whose duties were similar to those of Dr. Dann have received benefits under the Heart Bill. But, according to the opinion, “The New York City Law Department spoke during the meetings and opined that...the legislative history of the Heart Bill, as spelled out by the Court of Appeals, allegedly does not support the notion that Police Surgeons should receive the benefits of the Heart Bill.”

One board member who favored a Heart Bill pension for Dr. Dann summed up the final position as: “There’s been no change in the statute of duties or title, but we are going to reinterpret the law and we are going to threat this beneficiary differently than all others who preceded.”

Justice Wright ruled that “the action of the Board of Trustees to deny [Dr. Dann] ADR under the Heart Bill was arbitrary and capricious. Contrary to its claim in court papers, it has not provided any credible evidence as to why [Dr. Dann] should not be entitled to benefits under the Heart Bill...The Board of Trustees makes conclusory statements alleging that [Dr. Dann’s] job was not stressful, without providing any examples.”

Mr. Richter said, “Police Surgeons are uniformed members of the police service and identified as such in the NYC Administrative Code.”

Inga Van Eysden, Chief of the Law Department’s Pensions Division, said, “We’re disappointed in the decision. We feel it is incorrect and are reviewing all options, including appeal.”

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