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Basciano v. Herkimer

decided: November 15, 1978.

GENNARO BASCIANO, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
HAROLD HERKIMER, INDIVIDUALLY AND AS EXECUTIVE DIRECTOR OF THE NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM AND HEAD OF THE BUREAU OF RETIREMENT AND PENSIONS, ET AL., DEFENDANTS-APPELLEES.



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. Affirmed.

Before Friendly and Timbers, Circuit Judges, and Hoffman, District Judge.*fn*

Author: Timbers

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 therefore 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.*fn1

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 prior decision that Basciano was not disabled ...


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