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. 34). Respondent and April McMenemy, respondent’s girlfriend, were already at the bar when Mr. Montoya and Frank Lindsay arrived (Tr. 36). Mr. Montoya testified that they were “celebrating respondent’s success” and respondent said to them, “I told you, I did it” as respondent gave him a “high five” hand slap (Tr. 26-27, 48, 139).
Frank Lindsay, who is assigned to the field public communications unit and has known respondent for almost 15 years, testified that in early 1993, respondent told him he had injured his shoulder when he was flipped or thrown during a jujitsu class taught by Chief Spadafora (Tr. 74, 84). Approximately three to eight weeks after this conversation, he heard that respondent had fallen out of a chair at work (Tr. 76-77). Shortly after the May 10, 1993 accident, he met with respondent in O’Keefe’s bar, along with Carlos Montoya and April McMenemy. The bar was crowded and many people were standing nearby when respondent told him that he had “staged the chair incident to get one over on the Fire Department” (Tr. 77, 88, 90). In referring to the chair incident, respondent said that he “just made that up” (Tr. 78). Respondent talked about his three-quarter pension and they joked about the fact that Mr. Lindsay and Mr. Montoya would be working while respondent was retired (Tr. 79-80). Mr. Lindsay testified that he did not take respondent seriously and told him, “ If you can get away with it, get away with it” (Tr. 90). Mr. Lindsay could recall no other conversations with respondent about the chair incident or the injuries it reportedly caused him (Tr. 92).
The testimony from these two witnesses is the primary evidence against respondent. Messrs. Montoya and Lindsay related respondent’s admissions of serious wrongdoing. In conjunction with other evidence in the record, the statements exposed respondent’s attempt to deceive and defraud the Fire Department and its Pension Fund.
Neither witness was shown to harbor any animus, bias or interest that would compromise their credibility. Quite the opposite appears from the record, as both men were and continue to be respondent’s friends. They worked together for many years and developed close social relationships, including regular after work socializing at O’Keefe’s bar, visiting at respondent’s home and vacationing together. There was nothing to suggest that either witness would be motivated to harm respondent nor was there a cogent showing that their testimony was coerced by the investigators assigned to this case. In all likelihood, it was the significance of respondent’s statements and the subsequent events that enabled Messrs. Lindsay and Montoya to recall them several years later.
In the final analysis, I found the testimony of these two witnesses reliable, even if not a complete recounting of respondent’s statements to them. Any reluctance noted during their testimony was attributable more to their friendship with respondent than to untruthfulness. As respondent’s friends and apparent confidants, they would be inclined to minimize their knowledge about respondent’s misconduct.
I accorded the admissions considerable weight, particularly as they were unexplained by respondent. That is, although respondent flatly denied making these statements, he did not explain how or why these two witnesses would attribute such statements to him. The following sequence from respondent’s testimony is revealing:
Q. Is it your testimony that Frank Lindsay came in here and lied, when he made reference to the chair incident, where you fell off? * * * A. He may have thought he heard me say something different. I don’t know. I’m not going to say he lied. How can I say he lied? All I could say is, he definitely didn’t hear me say that. He might have thought he heard me say that, but that’s not what he heard me say; I can tell you that.”
Q. Is there anything you said that you think he might have thought he heard you say, relating to your pension or falling off the chair?
A. I couldn’t really pinpoint anything that I’ve ever said in the bar. I have no idea, to tell you the truth, no idea.
Q. What about Carlos Montoya? Are you saying that what he came in here and testified to did not happen, in O’Keefe’s bar?
A. What exactly did he testify to? I don’t remember.
Q. He testified that you guys were high-fiving and you said, “I did it,” and you were celebrating on a particular day. Is it your testimony that you didn’t go to O’Keefe’s bar and celebrate in the way that Carlos Montoya described?
A. I can guarantee you, I wasn’t high-fiving anybody. That I can guarantee you. (Tr. 249-50).
Although invited to explain what he might have said that would lead Messrs. Montoya and Lindsay to conclude that he had staged the chair incident to create a service incurred injury, respondent offered nothing. Respondent’s bald denials were insufficient to refute the more credible and incriminating testimony of these two witnesses. Their testimony stands as compelling evidence that respondent attempted to defraud the Fire Department Pension Fund by misrepresenting his back injury to be work related.
Petitioner’s theory of the case is that respondent actually injured his back at a jujitsu class conducted by Chief Spadafora in early 1993. At the time, Chief Spadafora was a captain and one of respondent’s supervisors on the social club task force. Both Chief Spadafora and respondent acknowledged that respondent attended two jujitsu classes, and that Chief Spadafora used respondent to demonstrate a hip throw. However, both men claimed that this demonstration was done slowly and without injury to respondent (Spadafora: Tr. 59-60, 65-66; Egan: Tr. 185-87). Respondent was at work the day after each class and told some of his co-workers that his muscles were sore. Although respondent denied telling anyone that he was injured at the jujitsu classes, Chief Spadafora testified that several months after the classes, he heard a rumor to the effect that respondent claimed to have been injured during one of the classes. When he asked respondent about this, respondent denied making such a statement (Tr. 68). Nonetheless, the fact that Chief Spadafora heard such a rumor confirms that respondent had told some people, including Mr. Montoya, that he had been injured at the jujitsu class. Chief Spadafora offered the view that respondent could not possibly have been injured during his class because respondent was inexperienced in the jujitsu technique and did not do too much (Tr. 69). Yet, Chief Spadafora testified that respondent was paired with other students for most of the class and asked to take a break at a point when he appeared to be tired, winded and perspiring (Tr. 60, 68). These symptoms of physical exertion, coupled with the fact that respondent told his co- workers that his muscles ached from the first class, suggests a higher degree of participation than Chief Spadafora described.
While respondent may not have told Chief Spadafora that he was injured during the class, the resulting investigation and prosecution provided an obvious motive for the chief to minimize the extent of respondent’s participation in his jujitsu classes. When the chief was first questioned about these classes, his potential liability for respondent’s injuries would affect how he described the classes. In addition, that such injuries may have removed respondent from active duty would also encourage him to minimize respondent’s involvement in the classes. It is also troubling that despite the fact that Chief Spadafora supervised respondent in a light duty assignment, he never inquired about the nature of respondent’s medical condition before allowing him to participate in a martial arts class (Tr. 70). The risk of injury during such an exercise is obvious; even more so when dealing with someone such as respondent, whose limited duty status was due to a medical condition.
Chief Spadafora’s testimony must also be weighed with due regard for the fact that he invited a subordinate to a class that he conducted as a private business venture.2 While the record does not show that respondent entered into a business relationship with Chief Spadafora, that was the purpose of allowing him to attend the two free classes (Spadafora: Tr. 57, 62; Egan: Tr. 181, 183).
Circumstantial evidence of respondent’s injury from the jujitsu class was provided by Lori Romano, a secretary with the social club task force and another of respondent’s co-workers. Ms. Romano testified that in April 1993, she discussed the jujitsu classes with Chief Spadafora and both she and respondent expressed interest in taking them. Ms. Romano did not take the class, but she was aware that respondent attended two of the classes (Tr. 116). After taking the first class, respondent told her it was physically taxing and that his legs, stomach and arm muscles were sore (Tr. 117). After the second class, respondent said nothing to her about it. However, Ms. Romano noticed that respondent appeared to be very stiff and uncomfortable, as he could not turn his head without turning his entire body (Tr. 118). One or two weeks later, she learned that respondent had fallen out of a chair at work (Tr. 118, 127-28). Ms. Romano explained that she was able to fix the date respondent took the jujitsu class as only one or two weeks before the chair incident (Tr. 131). Ms. Romano said that respondent showed stiffness of movement for the entire period of time between the jujitsu classes and the chair incident (Tr. 134).
2 The Charter’s conflicts of interest provisions provide, among other things, that: “[n]o public servant shall engage in any business, transaction or private employment, or have any financial or other private interest, direct or indirect, which is in conflict with the proper discharge of his or her official duties.” Further, “[n]o public servant shall enter into any business or financial relationship with another public servant who is a superior or subordinate of such public servant.” New York City Charter § 2604(b)(2), (14) (Lenz & Riecker 1997). There was conflicting testimony regarding the time span between the jujitsu classes and respondent's accident at work. A shorter time period was more consistent with petitioner’s theory of the case, while a longer time period was more consistent with respondent’s position. Ms. Romano recalled the time span between the jujitsu classes and the chair incident was as short as two weeks. Mr. Lindsay recalled a time period of from three to eight weeks, while respondent and Mr. Montoya placed the jujitsu class in the winter months. Respondent argued that if he actually injured his back at the class, he could not possibly have waited until May before seeking medical attention for his injuries. This argument is compromised by the fact that respondent waited until November 1993, before undergoing corrective surgery, some six months after he reported the chair incident at work.
I find Ms. Romano’s recollection of a shorter time span to be more reliable than the longer time period described by the other witnesses because she anchored her recollection based on the events. Ms. Romano was able to fix her recollection of the time period by reason of the fact that she immediately saw a connection between respondent’s apparent stiffness and limitation in movement, which she attributed to the second jujitsu class, and the reported chair accident. The witnesses who recalled that the classes were sometime during the cold months of either February or March, had no independent way to fix their recollection. The more reliable evidence placed the two events closer in time, making the jujitsu class more likely in April 1993.
Although motive need not be determined in a disciplinary case, it was a patent and significant ingredient in this case. There was ample motive for the misconduct respondent is charged with: a more lucrative service incurred disability pension, one that would pay him three-quarters of his salary, tax free, for life. In January 1993, the Department had informed respondent that he would be retired on ordinary disability due to his seizure disorder (Resp. Ex. J). Respondent used the jujitsu injury as an opportunity to convert an ordinary disability into a work related disability and thereby win a more valuable pension. Since respondent now had a serious back injury, all that he needed was an accident at work to explain it. The chair incident was to be that explanation.
Petitioner produced a preponderance of reliable evidence to prove the charges. Respondent’s admissions were related by credible witnesses and were neither explained nor convincingly refuted by him. Under the circumstances, the only reasonable conclusion to be derived from these admissions is that respondent knowingly and intentionally submitted a false injury to member report on May 10, 1993, and that on May 10, 1994, respondent submitted an application for a service incurred disability pension based on injuries he knew were not work related. By intentionally filing false official reports with the intent to deceive the Fire Department and defraud its Pension Fund, respondent engaged in misconduct that would constitute a crime if proven in a court of competent jurisdiction. Such crimes include, Penal Law § 175.35 (offering a false instrument for filing in the first degree) and Penal Law §§ 110 and 155.40 (attempted grand larceny in the second degree). Indeed, respondent was indicted for these and other crimes in Kings County (Resp. Ex. U). The record reflects that respondent was acquitted of these charges following a trial (Tr. 230).
FINDINGS AND CONCLUSIONS
1. That in late April 1993, respondent injured his back while participating in a non-work related jujitsu class. 2. That on May 10, 1993, respondent filed an official report with the Fire Department falsely claiming to have injured himself by falling out of a chair at work.
3. That on May 10, 1994, respondent filed an application for a service incurred disability pension with the Fire Department Pension Fund based on back injuries which he knew were not work related.
Therefore, I find respondent guilty of the charges and specifications, as amended.
RECOMMENDATION
Respondent engaged in criminal conduct when he attempted to defraud the Fire Department Pension Fund by claiming a service incurred disability pension to which he was not entitled. In so doing, he violated his oath of office and dishonored those members who have suffered serious and disabling injuries on the job. The benefits provided by a service incurred disability pension are reserved for those members whose line of duty injuries force them to relinquish their positions as active firefighters. Such members are deserving of the generous benefit provisions accorded through the service incurred disability pension. Respondent is not.
Respondent used deceit and misrepresentation to place himself in the same category as those who legitimately seek such pensions. He did so not out of mistake or misunderstanding, but strictly out of self-interest. I am mindful that respondent believed that his seizure disorder should be designated as service incurred. However, a series of 1-B Medical Boards concluded otherwise. After reviewing the injury and medical reports, the 1-B Medical Board twice concluded that respondent's seizure disorder was not sufficiently connected to the injuries respondent sustained at a fire on December 20, 1989. The medical boards’ adverse findings may have allowed respondent to justify, in his own mind, his attempt to fabricate a work-related incident and falsely claim a work related injury.
Respondent’s misconduct was fraudulent and corrupt. Such deception cannot be countenanced. The Commissioner must impose a significantly stern penalty to make it clear that the Department will not tolerate a member among its ranks who is guilty of such serious misconduct. A stern penalty will also preserve the public's confidence in and respect for the integrity of this generous pension option. Despite respondent’s tenure of 14 years and the fact that his dismissal may prevent him from obtaining any pension, the only appropriate penalty is termination. See, Pell v. Board of Education, 34 NY2d 222, 238, 356 N.Y.S.2d 833, 845 (1974) (“pensions are not only compensation for services rendered, but they serve also as a reward for faithfulness to duty and honesty of performance”).
Accordingly, I recommend that respondent be dismissed from his position.
P R E S E N T: CHARLES D. McFAUL, Administrative Law Judge
T O: THOMAS VON ESSEN, Commissioner, NYC Fire Department A P P E A R A N C E S:
CLAUDIA DANIELS DE PEYSTER, Attorney for Petitioner
MICHAEL BLOCK, Attorney for Respondent