HIV+ Cop Loses Disability Retirement Appeal

In a decision published in the New York Law Journal today (March 1), Justice Joan B. Lobis of NY Supreme Court, NY County, denied a petition by an HIV+ police officer seeking an Accident Disability Retirement allowance (ADR) and Ordinary Disability Retirement (ODR).  Justice Lobis found that the Police Pension Fund trustees had sufficient evidence to conclude that the petitioner did not qualify, despite testimony from his doctors that he most likely acquired his HIV infection from job-related blood exposure and that the side effects of his HIV medications made working difficult.  Costigan v. Kelly, 109718/19 (Feb. 11, 2010).

The petitioner became a New York City police officer in 1982, and claims that he was exposed to blood and bodily fluids frequently while on patrol duties during his first five years on the force.   Although he was not diagnosed as HIV+ until 1994, his doctor cites earlier incidents of prolonged viral infection as supporting the hypothesis that he was infected with HIV during that earlier period.  His HIV+ status was discovered when he submitted to a blood test in connection with an application to buy life insurance.  He began antiretroviral therapy in 1995, and has suffered many typical side effects.  He claims that during the treatment period he frequently had to miss or leave work, and finally he retired from full duty on October 21, 2001, and applied for the ADR and ODR, but was turned down by the Medical Board.

One of the problems with finding a disability, according to the court, was that the petitioner has never suffered an opportunistic infection, has a t-cell count well above the cut-off for full-blown AIDS, and was judged capable of doing a desk job.  The Medical Board had concluded early in the process that "aside from some subjective complaints, the officer has done relatively well, despite being HIV positive."    The petitioner submitted letters from a new doctor with whom he began treatment in 2006, but the letters did not seem to help his case, since they focused on his ability to perform on patrol; as an officer of some seniority, he wasn't going to be assigned to the kind of patroling that would raise these medical concerns if he had not retired, and the Department had been assigning him to desk work.

Concluded Justice Lobis: "The Medical Board's determination was rationally based on sufficient evidence.  Though he has HIV, petitioner was not suffering from an opportunistic infection at the time of the Medical Board's reviews.  Petitioner had complaints of headaches, diarrhea, lightheadedness, fatigue, malaise, anorexia, nausia, lipodystrophy, and lipoathrophy, which were side effects consistent with his medical treatment.  Nevertheless, the NYPD took steps to accommodate petitioner with flexible scheduling and administrative duties; and, petitioner's work performance was never an issue.  The Medical Board was entitled to rely on its own jugment, in the face of petitioner's doctors' opinions that he was not fit for police work, because there was ample, credible evidence in the record to suggest that petitioner was capable of performing his assigned duties."