A former city subway flagman, who was hit by a train in a 2016 accident that killed his co-worker, has been denied a disability pension tied to post-traumatic stress disorder for the second time by the New York City Employees' Retirement System.
Jeffrey Fleming was working on the F line in Brooklyn just after midnight on Nov. 3, 2016 with Louis Gray, a 53-year-old Track Worker, when they "were struck and pinned" between a G train and the bench wall in the tunnel, according to the National Transportation Safety Board, which investigated the accident.
Mr. Gray died at the scene, while Mr. Fleming was seriously injured.
Control Center Faulted
In 2019 the NTSB determined "the probable cause of the accident was the failure of the Rail Control Center to communicate to the train dispatcher and tower operator that flaggers were on the track."
Mr. Fleming spent six days in the hospital. He has had three surgeries on his shoulders and has been diagnosed with PTSD.
"I was spinning like a ballerina doll between the catwalk and the train," he said during a phone interview. "If I had had my arms down, they both would have been broken or I would have lost them."
He still suffers from chronic neck and back pain "and can't walk a block without taking a break."
In an online posting in 2018, Mr. Fleming lamented that a day did not go by without "nightmares and flashbacks of the accident." He remains haunted by the look on on Mr. Gray's face "when he passed away in front of my eyes."
According to his lawyer, David C. Donohue, a NYCERS psychiatrist has twice rejected his client's PTSD claim—supported by an outside psychiatrist—which is granted would entitle him to a disability pension equal to three-quarters of his final average salary with New York City Transit, or more than $45,000.
'Wants More Tests'
The lawyer said the psychiatrist made his determination "based on a one-time examination years after the incident in which he saw his co-worker fatally hit by a train. So, this one psychiatrist is not convinced and wants my client to undergo more tests."
Mr. Donohue said the latest medical board finding was made in February but he was not notified until July. Mr. Fleming is awaiting a letter from the NYCERS Board of Trustees memorializing the rejection on medical grounds.
The attorney lawyer noted that NYCERS's second rejection of the disability claim came despite a finding by the Social Security Administration that his client was indeed permanently disabled.
"So, this is the great NYCERS contradiction, where you have the Federal government ruling you are entirely disabled to work but NYCERS turns you down," he said. "It's really criminal."
NYCERS: Can't Discuss It
A NYCERS spokesman said the agency could not provide information about the case because it involved a pension's confidential information, and that Mr. Fleming had the option of suing in court for relief.
The former TWU member for the past two years has received $1,879 a month in Supplemental Security Insurance benefits provided by Social Security.
"That SSI process was pretty straightforward, like 1-2-3," Mr. Fleming recalled. "I went and spoke to the guy at Social Security and told him I had been hit by a train, and he did a double-take. And I showed him the list of prescriptions I was taking."
The trajectory of his disability claim closely resembles that of a number of 9/11 World Trade Center first-responders who also had their claims rejected by the city's largest pension system.
Over the last few years, NYCERS's handling of hundreds of 9/1-related claims came under intense scrutiny from Albany lawmakers following to complaints from WTC health advocates and the unions representing those employees.
At a December 2017 State Senate hearing, attorneys for 9/11 responders complained that NYCERS medical experts reviewing disability claims had no relevant experience to do it and that interactions with their clients were often adversarial and sometimes abusive. At that hearing, NYCERS conceded it was short on medical staff and that it was having difficulty attracting qualified mental-health professionals to review PTSD claims.
The agency said Aug. 6 that it no longer was short of qualified medical staff.
John Feal, a 9/11 WTC first responder and founder of the FealGood Foundation, said, "NYCERS has once again demonstrated that it lacks compassion and empathy, and has set the bar high for being a colossal failure when it comes to the basics of ensuring that those sick or injured are given their disability."
Mr. Fleming is a second-generation civil servant whose father was a city Correction Officer. He recently lost his 82-year-old mother to COVID-19.
He vowed to press on with his claim. "I'd like to help my daughter, who now works at a hospital in Manhattan, get through Brooklyn College," he said.
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