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In re Application of West

Supreme Court, New York County

March 22, 2013

In the Matter of the Application of COLLEEN WEST. Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules,
v.
RAYMOND KELLY, as the Police Commissioner of the City of New York and as Chairman of the Board of trustees of the Police Pension Fund, Article II. THE BOARD OF TRUSTEES of the Police Pension Fund, Article II and THE N£VS£ YORK CITY POLICE DEPARTMENT, Respondents. Index No. 0113167/10

Unpublished Opinion

PAUL WOOTEN

The following papers numbered 1 to 5 were read on this motion by petitioner for a judgment pursuant to Article 78.

PAPERS NUMBERED

Notice of Motion/ Order to Show Cause — Affidavits — Exhibits ... 1, 2.3

Answering Affidavits — Exhibits (Memo) 4. 5

Replying Affidavits (Reply Memo)

Colleen West (petitioner) a retired New York City police officer, brings this Article 78 proceeding to annul the determination of the respondents which denied her application for an accident disability retirement pension (ADR) on the ground that there was insufficient medical evidence to substantiate her claim of disability. Petitioner argues that this determination was arbitrary and capricious and contrary to established law.

BACKGROUND

Petitioner was appointed to the New York City Police! Department (NYPD) on July 12, 1988. On August 13, 2006, petitioner sustained injuries to her left arm, back and neck while performing a vehicle stop. The perpetrator attempted to flee the scene and struck the petitioner with his vehicle. The petitioner was treated at the New York Hospital Queens Emergency Room. As a result of this accident, petitioner was on sick report from August 14, 2006 through September 1, 2006; September 7, 2006 through October 13, 2006; November 13, 2006 through November 26, 2006 and December 17, 2007 through January 8, 2008. The NYPD paid for all of the petitioner's medical treatment, including treating physician examinations, diagnostic testing and physical therapy until she retired from active service on July 18, 2008.

On August 21, 2006, petitioner came under the care of Dr. Stephen H. Marcus, a board-certified orthopedic surgeon. Dr. Marcus initially diagnosed petitioner with a cervical and lumbosacral sprain and prescribed physical therapy and medication. Dr. Marcus continued to treat petitioner from 2006 through 2008. In his July 11, 2008 report, Dr. Marcus opined that petitioner could no longer perform her duties as a police officer.

On August 30, 2006, petitioner underwent an MRI of her lumbar spine. Linda Harkavy, M.D., a board-certified radiologist, reported a small left parasagittal disc hemiaton, mild disc bulging, and a small radial tear in the right lateral disc margin. On September 15, 2006, an MRI of the cervical spine was performed. Dr. Harkavy reported small disc herniations and slight anterior listhesis. On October 27, 2006, petitioner was examined by Dr. William B. Head Jr., M.D., a board-certified neurologist. Dr. Head diagnosed petitioner to be suffering with a cervical strain, a lumbosacral strain, cervical radiculopathy and lumbar radiculopathy. Dr. Head Stated that petitioner's August 13, 2006 accident caused the aforementioned conditions.

On January 3, 2007, petitioner was placed on restricted duty by her NYPD District Surgeon, Norman Lanes, M.D. In the restricted duty form, Dr. Lanes diagnosed petitioner with neck and back injuries with a positive MRI.

On April 3, 2007, petitioner submitted an application for ADR in which she alleged that as a result of the line of duty injury, she suffered from severe neck pain, back pain, numbness down her left arm, numbness down her left thigh and physical limitations. Petitioner claimed that she could no longer perform the full duty requirements of an NYPD officer. In response to petitioner's application, the Police Commissioner filed an application for Ordinary Disability Retirement ("ODR") on her behalf. On April 12, 2007, Dr. Head examined petitioner and reported that she suffered from multiple disc herniations at L5-S1, C4-5, C5-6 and C6-7, with bulges at L3-4 and L4-5, left cervical and left lumbosacral radiculopathy, as well as chronic muscle tension headaches. Dr. Head concluded that petitioner ...


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