Fire Dep't V. Egan, OATH Index No
Total Page：16
File Type：pdf, Size：1020Kb
Fire Dep't v. Egan, OATH Index No. 819/97 (Aug. 15, 1997), aff’d sub nom Egan v. Von Essen, 260 A.D.2d 479, 688 N.Y.S.2d 573 (2d Dep’t 1999). Summary : 1.Admissions made by respondent regarding injuries and plan to cover them up with a work related accident related by two co-workers, which were unexplained by respondent, sufficient proof of misconduct. Petitioner presented evidence from two co-workers who were totally credible that respondent told them he had injured himself at a jujitsu class and planed to cover it up as a work-related injury for a better pension. Circumstantial evidence that respondent sustained an injury during a jujitsu injury produced was also produced through another co-worker. Absent any explanation for the admissions made by respondent, the evidence permits a conclusion that respondent injured himself off duty and falsely claimed to have incurred that injury at work. CHARLES D. McFAUL, Administrative Law Judge This disciplinary proceeding was referred to me pursuant to section 15-113 of the Administrative Code and section 75 of the Civil Service Law. Petitioner, the Fire Department, charged that Firefighter Richard Egan, the respondent, filed false reports with the Department and the Fire Department Pension Fund. The charges alleged that respondent falsely claimed to have sustained injuries while at work on May 10, 1993, when in fact he was injured at a jujitsu class while off duty (ALJ Ex. 1). Respondent denied that he was injured at a jujitsu class and maintained that his injuries and resulting disabilities were work related. The hearing was conducted on January 23 and 24, 1997. Petitioner presented testimony from four witnesses. Respondent also presented testimony from four witnesses, including his own. As discussed below, I find petitioner established the charged misconduct by a preponderance of the evidence and recommend that respondent be dismissed from his position. ANALYSIS Much of the evidence dealt with historical facts, many of which were not in dispute. The following chronology provides an overview of key events bearing upon the disputed issues in this case. On December 20, 1989, while respondent was assigned to Ladder Company 143 in Queens, he sustained head and neck injuries when a portion of a ceiling he was pulling down collapsed, knocking him to the floor. Shortly afterwards, as he was exiting the fire area wearing an air tank on his back, he slipped and fell onto his back. Respondent said that his back was in severe pain from the fall. He was taken to Jamaica Hospital, where he was treated and released the same day (Sweeny: Tr. 102-04; Egan: Tr. 164-66; Resp. Exs. B, C & E). Respondent returned to full duty on December 29, 1989. On August 20, 1990, respondent suffered a grand mal seizure at the Department’s medical unit and was taken to Beekman Hospital, where he was diagnosed with general epileptic seizure disorder, possibly caused by alcohol withdrawal. Respondent reportedly had stopped drinking about ten weeks earlier (Egan: Tr. 169-70; Resp. Ex. F). In September 1990, Dr. Ira Casson, a neurologist, diagnosed respondent as suffering from a seizure disorder (complex partial, focal in origin) from a closed head injury sustained on December 20, 1989, and ruled out alcohol withdrawal as a causal event. Dr. Casson prescribed dilantin at 400 mg. per day to manage respondent’s seizure disorder. Respondent experienced another grand mal seizure on June 8, 1991, after he voluntarily discontinued taking the dilantin in May 1991. Dr. Casson continued respondent on the same dosage of dilantin. However, respondent reported that he continued to experience some seizure symptoms and Dr. Casson increased the dosage of dilantin to 500 mg. per day in November 1991 (Tr. 210-12; Resp. Exs. P & W). On October 14, 1992, a 1-B Medical Board certified respondent unfit for full duty due to his epileptic disorder and continued him on light duty with a recommendation for limited service (Egan: Tr. 179; Resp. Ex. I). On October 19, 1992, respondent went to a chiropractor complaining of pain in his lower and middle back and in his neck (Resp. Ex. H). Respondent made a total of five visits to the chiropractor (Tr. 181). On January 13, 1993, the Fire Department notified respondent that due to his inability to perform full fire duty and pursuant to Mayoral Directive 78-14, a Commissioner’s application to retire him for disability would be initiated (Resp. Ex. J). Sometime during the first four months of 1993, respondent participated in two jujitsu1 classes conducted by Battalion Chief Ronald Spadafora at a private martial arts school located in Queens (Egan: Tr. 181-82; Spadafora: Tr. 58). A key issue in this case was whether respondent injured himself at one of these jujitsu classes. On May 10, 1993, respondent filed a member injury report stating that he fell from his desk chair at work, which was referred to throughout the trial as the “chair incident.” The legitimacy of this incident was another key issue in the case. Immediately following this incident, respondent reported to the medical unit complaining of pain in his upper back and left shoulder that was radiating to his left arm and hand. He was diagnosed with a pinched nerve and Tylenol 3 was prescribed (Egan: Tr. 200-01; Resp. Exs. L & M). Respondent was seen again by the medical unit and referred to a neurologist. Respondent remained on medical leave from May 10, 1993, until July 1994, when he was returned to light duty. On June 3, 1993, respondent was seen at Long Island Jewish Hospital and referred to a neurologist, who diagnosed him with posterior central disc herniation at C5-C6 and posterior left lateral disc herniation at C6-C7. A surgical repair was recommended. In July 1993, respondent sought a second 1 Jujitsu is a Japanese system of wrestling in which knowledge of anatomy and the principle of leverage are applied so that the strength and weight of the opponent may be used against him or her. Webster’s New World Dictionary, at 732 (3d Ed. 1988). opinion from the Fire Department’s specialist, Dr. Errico, who concurred in a diagnosis of left cervical radiculopathy from the C6-C7 disc herniation and recommended a period of physical therapy. On October 18, 1993, respondent reported no improvement after ten weeks of therapy, which led Dr. Errico to also recommend surgery (Egan: Tr. 204, 225; Resp. Exs. O, Q, R & S). On September 29, 1993, a 1-B Medical Board found that respondent’s seizure disorder disabled him from full fire duty and recommended approval of the Commissioner’s application for ordinary disability retirement. The board found insufficient evidence that respondent had suffered a head trauma while fighting a fire on December 20, 1989, and found “noteworthy” respondent’s earlier history of off-duty head injuries and alcoholism (Pet. Ex. 3). On November 11, 1993, respondent underwent surgical excision of herniated discs and cervical fusion at Winthrop-University Hospital (Egan: Tr. 226; Resp. Ex. T). On May 10, 1994, respondent submitted an application for service incurred disability retirement listing as his disability the repair to herniated discs and limited range of motion following the spinal fusion. Respondent attributed his disability to the fire accident on December 20, 1989, and the chair incident on May 10, 1993, (Egan: Tr. 230-31; Resp. Ex. V). On December 14, 1994, a 1-B Medical Board again considered respondent’s application for service incurred disability retirement and concluded that the spinal fusion performed in November 1993, disabled respondent due to limitation of neck movement. However, the board found that neither the injuries sustained on December 20, 1989, nor the accident on May 10, 1993, were of sufficient magnitude to cause or aggravate the current condition of respondent’s spine. The board recommended that respondent’s application for accident disability retirement be denied and that the Commissioner’s application for ordinary disability retirement be approved (Pet. Ex. 2). Petitioner asserts that respondent was injured at a private jujitsu class and not, as he claims, at work. This assertion hinges mainly on statements respondent made to two co-workers and to a lesser extent on the observations of a third co-worker. None of the witnesses actually saw respondent’s chair incident at work, as it happened when no one was around. However, two witnesses, Carlos Montoya and Frank Lindsay, testified that respondent told them that he had staged the chair incident, purportedly to conceal injuries he actually sustained in the jujitsu class. Mr. Montoya, a fire protection inspector, testified that in or about February of 1993, respondent told him he had been injured when a jujitsu instructor threw him to the floor during a jujitsu class. Mr. Montoya added that respondent told him this on more than one occasion. According to Mr. Montoya, respondent complained to him about pain in his neck and arm from the jujitsu class (Tr. 14-18). Mr. Montoya allowed that the injury might help respondent retire from the Fire Department, but respondent disagreed and told Mr. Montoya that he would have to stage something at work to cover up the injury (Tr. 27, 49, 138-39). Mr. Montoya interpreted respondent's statement to mean that he had to stage something at work so that the Department’s health insurance would cover the surgery respondent needed (Tr. 50). When Mr. Montoya learned that respondent had fallen out of a chair at work, he assumed that this was the cover-up respondent said he would employ (Tr. 49, 139). Shortly after the chair incident, Mr. Montoya’s impression was confirmed at O’Keefe’s, a bar that he, Frank Lindsay and respondent regularly visited after work (Tr.