Dep’t of Environmental Protection v



Housing Authority v. Anonymous

OATH Index No. 1867/08 (June 26, 2008)

Authority sought to place housing assistant on involuntary leave pursuant to section 72 of the Civil Service Law, based upon diagnosis that employee has a seizure disorder. Finding that the Authority had not met its burden of showing that employee’s condition rendered him unfit to perform the duties of his position, ALJ recommended dismissal of petition.

____________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

HOUSING AUTHORITY

Petitioner

-against-

ANONYMOUS

Respondent

_____________________________________________________

REPORT AND RECOMMENDATION

JOAN R. SALZMAN, Administrative Law Judge

This is a disability proceeding referred by petitioner, the Housing Authority (“HA” or “the Authority”), pursuant to section 72 of the Civil Service Law. The petition alleges that respondent, a housing assistant employed by the Authority, is physically unfit to perform the duties of his position and should be placed on an involuntary leave of absence.

A hearing was conducted before Administrative Law Judge (“ALJ”) John B. Spooner on April 28, 2008, and continued before me on May 20, 2008. Petitioner presented testimony from Ernestine Thomas, the manager of the office where respondent works, and Dr. Arthur H. Weiss, a neurologist, who examined respondent, as well as documentary evidence, which indicates that respondent appeared to have suffered a seizure at work on five occasions in 2007, and once in February 2008 (Pet. Ex. 4). Ms. Thomas described instances when respondent lost consciousness at work, and the effect this had on office operations. Dr. Weiss concluded that respondent suffers from a seizure disorder which renders him unfit to work in a busy public office (Pet. Ex. 5).

Respondent presented the testimony of his treating physician, Dr. Joel Cohen, a neurologist, by telephone, and testified on his own behalf. At the first hearing session, Dr. Cohen testified that respondent complained to him about migraine headaches and episodes when he lost consciousness. Dr. Cohen decided to try to stop the headaches first to see if that would stop the incidents of unresponsiveness. Respondent then suffered a seizure in mid-trial while Dr. Cohen was still testifying (Tr. 78-81). Respondent let out a high pitched scream, which is preserved on the original audio record underlying the transcript of the hearing, and available upon request, and he fell from his chair to the floor, with counsel for petitioner cushioning his fall onto the carpet by holding onto respondent’s sweater (Tr. 79-80). ALJ Spooner summoned OATH staff to call for Emergency Medical Services (“EMS”). While waiting for EMS to arrive, ALJ Spooner and counsel described respondent’s symptoms to Dr. Cohen via speakerphone (Tr. 78-80). Respondent’s body stiffened, his face was twitching, he was convulsing, he turned red, he was foaming at the mouth, some blood appeared in his phlegm (Dr. Cohen testified that he could have bitten his lip), and then he was breathing deeply as if sleeping and snoring. All of this is on the record.

EMS arrived and respondent was taken to the emergency room at Bellevue Hospital (Tr. 90). His attorney, Ms. Brooks, accompanied him during the ambulance ride to the hospital (Tr. 128, 149). Following this episode, Judge Spooner recused himself by letter dated May 1, 2008 (ALJ Ex. 2). The matter was then assigned to me. A continued hearing date of May 14, 2008, was selected. The matter was then re-scheduled to May 20th, at respondent’s request, because respondent wanted to call Dr. Cohen as a witness and he was not available on May 14th.

This dramatic episode enabled respondent’s doctor to diagnose him for the first time based on full information, and to prescribe appropriate medication as a result.

At the continued trial and in a written report, Dr. Cohen revised his diagnosis to conclude that in addition to chronic vascular headache syndrome, respondent “also likely has epilepsy” (Resp. Ex. A), based upon the attorneys’ and the judge’s description of what occurred at the April 28, 2008 hearing. Dr. Cohen concluded that respondent’s condition does not render him unfit to perform an office job, because if respondent has a seizure at work, he is not likely to pose a serious danger to himself or others.

For the reasons set forth below, I find that petitioner has failed to meet its burden to prove that respondent is currently unfit to perform the duties of housing assistant and I recommend that the petition be dismissed. It is simply too soon to make a determination that respondent is unfit for duty when he was so recently diagnosed and given medication that can help him. Although a finding of unfitness is premature and unsupported by this record, it must be noted, nevertheless, that the petitioner’s pursuit of this matter is laudable, because the Authority’s attention to respondent’s health clearly led, remarkably, to a modified diagnosis in mid-trial and a new course of treatment by respondent’s own neurologist, who, for the first time, as a result of the in-court seizure, which the doctor heard via speakerphone during his testimony, prescribed anti-convulsant medicine which the doctor believes can help respondent by stopping or limiting his seizures.

ANALYSIS

Preliminary Matters

On December 21, 2007, petitioner directed respondent to report for a medical examination by Dr. Weiss, based upon five instances in 2007 when respondent appeared to have had a seizure at work (Pet. Ex. 2). On January 2, 2008, Dr. Weiss examined respondent and he issued a report, finding respondent unfit to perform the duties of a housing assistant due to “uncontrolled episodes of unconsciousness” (Pet. Ex. 5). Dr. Weiss certified that respondent’s “history is most consistent with a non-lateralized seizure disorder of uncertain etiology. The possibility of convulsive syncope does exist …” (Pet. Ex. 5). On January 30, 2008, Dr. Weiss forwarded his finding to Dawn M. Pinnock, petitioner’s Director of Human Resources (Pet. Ex. 5).

On February 5, 2008, petitioner notified respondent that it proposed to place respondent on an involuntary leave of absence pursuant to section 72 of the Civil Service Law, based upon Dr. Weiss’ report. On February 14, 2008, respondent objected to the proposed involuntary leave of absence and requested a hearing (ALJ Ex. 1).

A conference was scheduled for March 10, 2008, but was adjourned at the request of counsel for respondent due to a conflicting engagement. Respondent, through counsel, waived the time constraints for scheduling his hearing under section 72 of the Civil Service Law when seeking the adjournment. A rescheduled conference was held on March 18, 2008. Additional conferences were held on April 3, 14 and 28.

April 28, 2008 Hearing

On April 28, 2008, the first day of hearing before ALJ Spooner, Dr. Weiss gave his opinion that respondent suffers from seizure disorder and that his condition renders him unfit to perform the duties of housing assistant. Respondent sees members of the public who are applying for housing benefits at a window on a raised chair at a 54” counter (Tr. 43-44). His job is to process paperwork and also to take phone calls. The office processes in the course of a day about 300 applications. Applicants come throughout the day and the waiting area seats 50 or 60 people at a time (Tr. 44). Ms. Thomas described the workplace where she supervised respondent as a busy, understaffed office, which directly serves members of the public who apply for housing benefits. She testified regarding the five occasions in 2007, and one in 2008, when respondent had a seizure at work. She described how work in the office was disrupted when respondent had a seizure. But Ms. Thomas also testified, as did respondent, that respondent always returned promptly to work, always caught up with the work by the following day, and that he did his work and was well-liked by his co-workers (Tr. 59, 62, 65). The key facts on respondent’s consistent fulfillment of his job responsibilities and the brief disruptions during the limited number of five seizure episodes last year and one this year at work were undisputed.

Ms. Thomas supervises respondent in the application information office (Tr. 43-44). There are 11 or 12 staff members assigned to this office. The office gives out information to applicants for public housing (Tr. 43). Ms. Thomas has been present during some of respondent’s seizures. She described his falling from the chair, foaming at, and sometimes bleeding from, the mouth. She has called EMS and with other concerned staff members assisted him as he lay on the floor until EMS arrived. “[U]sually he’s out for a few minutes or more,” then he is taken to the hospital (Tr. 45-46).

Concerned co-workers are “very upset” (Tr. 46), but their concern is for respondent’s well being (Tr. 54). Some stop working and get water for him (Tr. 44). Work stops and members of the public must wait for service, but this is for a brief period of time, and the office is short-handed for the day of the episode, but these episodes have been limited to five last year. Ms. Thomas has received one or two complaints from respondent’s co-workers that they are not equipped to assist him (Tr. 53-54), and a few have expressed a concern that they may come in contact with his blood on the counter or on a chair (Tr. 66-67) when, the record shows, he may bite his tongue or lip, but there is no evidence that any co-worker has actually had contact with his blood. Work is slowed also for the day of the episode because Ms. Thomas sends a co-worker to accompany respondent to the hospital and that person misses part of the work day (Tr. 56). The emergency workers promptly remove respondent within about 15 to 20 or 30 minutes (Tr. 58). Some of the seizures have occurred at his desk in an open area in full view of the applicants, not only behind the raised counter, where only the applicant at the counter can see (Tr. 64).

The disruption of the office was short-lived, even according to the agency’s witness. Ms. Thomas testified that: “the only thing that happens is we would have to stop working for some period of time, for a short period of time” (Tr. 47, emphasis supplied). Ms. Thomas testified from her own knowledge and experience that respondent sometimes returned to work the same day, usually the following day, and that his condition has not caused prolonged absence from work (Tr. 61-62). Respondent invariably returns to work by the following day with a doctor’s note and works, fulfilling all of his duties as a housing assistant (Tr. 62). Despite his seizures, respondent has missed at most five days of work in 2007, and thus far only one in 2008, and works effectively for the balance of the 260 work days of the year (Tr. 62). “Most of the time,” the applicants are understanding about respondent’s medical emergency (Tr. 63).

In important testimony from the agency indicating respondent’s fitness for his job, Ms. Thomas admitted freely on cross-examination that respondent was fully capable and did perform his job with the exception of the few seizure episodes. Asked if respondent was “able to fully perform his duties,” with the exception of the five episodes, Ms. Thomas, as his supervisor, answered, “Yes.” Asked if he “successfully caught up” with any missed work, she also forthrightly answered, “Yes.” Asked if respondent was in any way impaired or limited in his ability to carry out his duties when he returned to work, she answered, “No, no.” She added that he was able to use the computer as required and there was no limitation on him: “No, I never you know, his work was still his work. Whatever he had to do, he remained doing” (Tr. 65).

Dr. Weiss testified that respondent’s condition renders him unfit because respondent could seriously hurt himself when he has a seizure at work and because of the nature of respondent’s job - - that he works with the public. When he has a seizure, it disrupts the office; the applicants and co-workers get upset (Tr. 32). Dr. Weiss called his finding “perhaps a social medical neurological opinion” (Tr. 33). Significantly, though, his finding of unfitness was partly based on the fact that at the time of Dr. Weiss’ evaluation, respondent had not been on anti-convulsant medication (Tr. 32).

After petitioner’s witnesses testified, still on the first day of the hearing, Dr. Cohen testified by speakerphone from his office. Dr. Cohen testified to his original diagnosis that respondent suffered from migraine headaches, not seizure disorder (Resp. Ex. A). Respondent was referred to Dr. Cohen on January 15, 2007, by respondent’s medical doctor, for an evaluation (Tr. 70). On his first visit, on February 15, 2007, respondent complained about frequent headaches and Dr. Cohen prescribed medication to treat headaches. In April 2007, respondent told Dr. Cohen about episodes when he lost consciousness. When respondent described those incidents, he did not say that he experienced convulsive symptoms, such as shaking, loss of bladder control or tongue biting. Dr. Cohen indicated that because migraines are associated with loss of consciousness, he decided to treat respondent’s headaches first to see if that would stop the loss of consciousness (Tr. 71-72). He testified that he was being “parsimonious,” by trying to isolate the headaches before concluding that respondent had been experiencing seizures: “I was trying to be what we say parsimonious, meaning we try to attribute a multitude of symptoms to one condition first rather than giving a patient multiple diseases, although sometimes it’s true that they do have multiple conditions” (Tr. 74). Given the medical treatment respondent was receiving, he can hardly be faulted because his own specialist, a neurologist trained in identifying seizure disorders, having completed a residency in neurology and a fellowship in epilepsy at Albert Einstein College of Medicine (Tr. 69-70), was not prepared in more than a year of seeing him regularly to diagnose him with, or treat or medicate him for, epilepsy or other seizure disorder.

It is undisputed that Dr. Cohen never interviewed respondent’s co-workers about their observations of his symptoms during the seizures, and did not seek EMT records from the April 28, 2008, in-court episode. Respondent was unconscious during his seizures and “obviously” his description of his symptoms to Dr. Cohen was incomplete, in Dr. Cohen’s words, and this kind of incomplete information was “not atypical” of a patient with epilepsy (Tr. 101). Nontheless, Dr. Cohen testified later in the trial that it is “beyond the norm of clinical neurology,” his specialty, to speak to respondent’s co-workers about their observations of his seizures (Tr. 100-01), and that the EMT records would not be helpful and were confidential (Tr. 118). Thus, it was not until the April 28th in-court seizure that Dr. Cohen modified his diagnosis and treatment of respondent with anti-seizure prescription medication (Resp. Ex. A).

While Dr. Cohen was still testifying on April 28th, respondent had a seizure in the courtroom, as described above (Tr. 78-81). ALJ Spooner notified OATH staff, who called for an ambulance. ALJ Spooner and counsel described respondent’s systems to Dr. Cohen over the phone. After Dr. Cohen heard the symptoms as described by counsel and ALJ Spooner, he acknowledged “it’s very suggestive that the seizure is not a headache phenomenon” (Tr. 80). EMS arrived and respondent was taken to the emergency room at Bellevue Hospital (Tr. 90).

May 20, 2008 Hearing

Dr. Cohen continued his testimony by telephone and respondent testified at the May 20, 2008 hearing. Based upon the description he received of the symptoms respondent exhibited at the April 28th hearing, Dr. Cohen revised his diagnosis in writing on April 30, 2008, to conclude, “[Respondent] also likely has epilepsy” (Resp. Ex. A). At the continued hearing, Dr. Cohen would not make a definitive diagnosis because an EEG test taken on March 7, 2008, did not show seizure activity (Tr. 107).

Dr. Cohen described respondent’s current medical regimen, which began when respondent was taken to the emergency room at Belleview Hospital, following his loss of consciousness at the OATH trial on April 28. In the emergency room, respondent began to receive a seizure medication known as Phenytoin or Dilantin (Tr. 90).[1] Respondent was put on this medication for the first time in mid-trial. In his written report, dated April 30, 2008, Dr. Cohen recommended that respondent continue at his current dosage of Dilantin (Resp. Ex. A). Dr. Cohen expects that the prescribed medicine will be effective in stopping the seizures, noting that whether the seizures will stop due to the drug “remains to be seen. There’s no way to tell any particular seizure medication will be one hundred percent effective or not, although I have reason to expect that it would . . . be effective in stopping his seizures” (Tr. 92).

Dr. Cohen testified that respondent’s condition would not render him unfit to perform the job duties of a housing assistant. Dr. Cohen admitted that he did not know respondent’s specific job duties, but he understood it to be a desk job. Dr. Cohen stated further that because respondent works in an office, and his job does not involve operating heavy machinery or driving a vehicle, there was no reason to expect that having a seizure would pose a threat to respondent or to those around him (Tr. 93).

Respondent testified that he has worked for petitioner for thirteen years. He currently works as a housing assistant in the application information office at 55 West 125th Street in Manhattan (Tr. 120). As a housing assistant, respondent assists applicants who appear at the office at the counter and he talks to others who call on the telephone. Respondent is also assigned “desk time,” which is when he completes paperwork at his desk. His work hours are 8:00 am to 4:00 p.m.

Respondent lost consciousness in February 2008 (Tr. 122). He described what happens to him before a seizure as follows. First, he has an upset stomach, then he feels woozy, and then he loses consciousness. Respondent does not know what happens when he loses consciousness. By the time he regains it, EMS is present. EMS personnel ask him questions, which he answers correctly. EMS then takes him to the hospital emergency room. Respondent returns to work the next day, in some cases he has returned on the same day; aside from the five days he missed last year, respondent has not missed any additional time due to his condition (Tr. 123, 126). When he returns, there are no restrictions on the work he can do (Tr. 123).

Respondent sought treatment from Dr. Cohen. Initially, Dr. Cohen prescribed two medications to treat respondent’s migraine headaches. Dr. Cohen continued to increase the dosage. Respondent began to receive anti-convulsant medication on April 28th. He denied that he ever skipped dosages of either medication (Tr. 125-126).

Based upon Dr. Cohen’s April 18, 2007 report, counsel for petitioner contended that respondent decided on his own to lower the dosage of a medication for migraines (Resp. Ex. A). Respondent claimed he did so because he was suffering from insomnia at that time. He testified that he discussed the dosage with Dr. Cohen, who agreed to lower the dosage, but later increased it back to the original level and higher (Tr. 127).

Petitioner bears the burden of proving by a preponderance of the evidence that respondent suffers from a disability, that he is unable to perform his job duties competently, and that his inability to perform those duties is caused by his disability. Admin. for Children’s Services v. Cleveland, OATH Index No. 1116/08, at 1-2 (Feb. 20, 2008); Police Dep’t v. Cornick, OATH Index No. 536/08, at 6 (Dec. 7, 2007), rev’d, Comm’r Dec. (Apr. 9, 2008); Housing Auth. v. Barone, OATH Index No. 1122/04, at 14 (May 23, 2005).

Although counsel for respondent would not concede that respondent suffers from a disability (Tr. 157), apparently because Dr. Cohen would not make a definitive diagnosis in the absence of conclusive EEG and MRI results, I find that petitioner has established that respondent has a disability, “a seizure disorder of uncertain etiology” (Pet. Ex. 5), based upon: the five instances when respondent lost consciousness in 2007, the two instances of loss of consciousness in 2008, including at the April 28, 2008 OATH hearing, Dr. Weiss’ opinion, Dr. Cohen’s revised diagnosis (“[Respondent] also likely has epilepsy” (Resp. Ex. A)), and the fact that Dr. Cohen is currently treating respondent with anti-convulsant medication. There is no real disagreement between the medical experts as to respondent’s current diagnosis.

This proceeding turns upon whether respondent’s condition renders him unfit to perform the duties of a housing assistant at the busy application information office where he works. “The focus in a section 72 proceeding is whether the employee is currently able to work.” Cleveland, 1116/08, at 2 (emphasis in original); Dep’t of Probation v. Kornheiser, OATH Index No. 361/06, at 5 (Oct. 13, 2005), aff’d in part, rev’d in part, Comm’r Dec. (Oct. 17, 2005). “Past performance is relevant only to the extent that it is probative of an employee’s present condition and future conduct”. Housing Auth. v. Caballero, OATH Index No. 699/96, at 17 (Mar. 13, 1996).

Petitioner gives two reasons for which respondent’s condition renders him unfit: (i) concern that he might lose consciousness at work and seriously injure himself in a fall, and (ii) the disruption to office function that occurs whenever respondent has a seizure at work.

Respondent contends that petitioner did not establish that respondent is currently unfit to perform the duties of his position. The work time missed by respondent due to his condition is small: in 2007, it was five days out of approximately 260 work days, as his supervisor, Ms. Thomas admitted in straightforward fashion (Tr. 62). Respondent has now begun a new course of treatment which should reduce the risk of future seizures at work. When respondent has had a seizure he has always been able to return to work no later than by the next day. He has been able to remain current in his work. Respondent’s counsel recognized that there is some disruption when respondent passes out at work, but she questioned whether it is severely disruptive, as that term is used in section 72 cases. EMT’s usually arrive within fifteen minutes or less, and while there is no medical reason for a co-worker to accompany respondent on the ambulance, because EMT’s are present, I find, as I intimated at the hearing, that it is not unreasonable for the agency to send a co-worker with him for humanitarian reasons (Tr. 169).

With regard to petitioner’s first stated reason for an involuntary leave of absence, I note that the concern expressed by Ms. Thomas and Dr. Weiss that respondent might lose consciousness at work and seriously injure himself in a fall was genuine. Nevertheless, based on precedent, I find petitioner’s well-intentioned concern for respondent’s welfare, while laudable, is an insufficient basis to place respondent on involuntary leave. As ALJ Raymond E. Kramer noted in Caballero, “absent a clear showing of the likelihood that such future impairment will occur, the agency cannot sustain an action under section 72 simply because there is risk that respondent’s continued performance of his work might place him in some physical jeopardy.” Caballero, 699/96, at 22. In Caballero, ALJ Kramer found the Authority failed to prove that the employee’s heart condition rendered him unfit to perform strenuous custodial duties. Likewise, in Department of Parks & Recreation v. Matthews, OATH Index No. 219/00 (Nov. 22, 1999), ALJ Rosemarie Maldonado found that the department failed to prove respondent’s heart condition rendered him unfit to perform strenuous duties as a city park maintenance worker.

With regard to petitioner’s second reason, we have noted in cases such as this one, where the employee suffers from an episodic or chronic condition or disability, “for which a recurrence or relapse is always a potentiality,” the focus has been on “the probability that such recurrence or relapse will take place, and the consequence for the employer if it does.” Caballero, OATH Index No. 699/96, at 22 (Mar. 13, 1996). Deputy Chief ALJ Charles D. McFaul articulated the standard in such cases in Human Resources Administration v. Bartolo, OATH Index No. 1211/94 (Nov. 3, 1994), as follows:

There are many disabilities, both mental and physical, which are episodic or might recur unpredictably. In such cases, the employer faces a degree of risk that the disabling condition might reappear and manifest itself in the workplace. Among the considerations relevant to assessing the level of risk involved are the probability of a recurrence, the frequency or intervals between episodes, and the severity or consequences of a recurrence in the workplace. In certain circumstances, the risk of a recurrence is so great that the employer should not have to assume it. In cases of high probability of frequent and severely disruptive recurrences, a significant risk is presented, making reinstatement inappropriate. See Transit Authority v. Marcus, OATH Index No. 283/92, at 9-10 (Aug. 14, 1992) (involuntary leave appropriate where disability caused “workplace disruptions [that] are frequent and extreme”), aff’d, NYC Civ. Serv. Comm’n Item No. C94-3-72 (Oct. 25, 1994). However, where the risk of recurrence and the severity are less significant, reinstatement should be granted.

Bartolo, 1211/94, at 9.

In Caballero, ALJ Kramer expounded further on the Bartolo standard.

As a general rule, where it is apparent at the time of the hearing that the employee’s condition or disability is in check or remission, or otherwise under control, because the employee recognizes the problem and/or is taking medication or steps to treat it, we have declined to find unfitness merely because of the existence of the future potential for relapse or recurrence [citations omitted].

Conversely, where an employee denies the existence of the disability, or refuses to properly treat it or make efforts to bring it under control, we have found there to be a far greater risk of future recurrence of the manifestations of the disability, and determined the employee, therefore, to be currently unfit within the meaning of the statute [citations omitted].

Caballero, 699/96, at 23-24.

This is a difficult case in which to gauge “the probability that such recurrence or relapse will take place” because Dr. Cohen acknowledged that he is in the early stages of treating respondent with anti-convulsant medication, and that the dosage could change over time (Tr. 105). While he acknowledged that he could not testify that respondent certainly will not have another seizure in the next three to six months because he has only just begun to treat him for epilepsy or seizure and, therefore, does not yet have a six-month record of respondent’s being seizure-free on the new medication yet (Tr. 110), Dr. Cohen could say that he expects that the prescribed medicine will be effective in stopping seizures (Tr. 92).

Petitioner argues that since respondent only recently began taking anti-seizure medication it is too early to determine that respondent’s condition is “in check or remission or otherwise under control,” and that, therefore, the petition should be granted (Tr. 168: “My point is that it’s too early to determine that [respondent] has it sufficiently under control”). The parties’ attorneys disputed whether respondent’s “condition or disability is in check or remission, or otherwise under control, because the employee recognizes the problem and/or is taking medication or steps to treat it.” (Compare Tr. 168, 172-73, with Tr. 150-152, 173-174). Respondent’s counsel cited Bartolo, and argued that respondent “recognized the problem” in 2006 when he decided to address it by going to a neurologist. Respondent states that he will follow the treatment regimen set by Dr. Cohen. According to Dr. Cohen, respondent “followed almost all of my . . . recommendations up until now” (Tr. 94).

Petitioner alluded to incidents intended to prove that respondent has not always informed his doctor when he had a seizure and has not always followed his doctor’s instructions. One involved respondent’s delay in getting an EEG, despite Dr. Cohen’s repeated direction to get one at some point (Tr. 96-99; Resp. Ex. A). Respondent did have an EEG on March 7, 2008 (Tr. 95). He underwent an MRI on March 3, 2008. Both the EEG and MRI were normal (Tr. 115). It is also true that respondent underwent these tests at the behest of the City’s doctor, Dr. Weiss, and that Dr. Cohen was treating respondent primarily for migraines and did not insist on these tests on an expedited basis (Resp. Ex. A). Rather, he wrote in his reports over the course of more than a year that he was treating the migraine and had not ruled out seizure disorders. He never ruled them in until the trial.

Dr. Cohen examined respondent in February, April, June, August, and October 2007, and January, March and April 2008. Throughout the period leading to this trial, Dr. Cohen prescribed headache medication, not seizure medication. The “Impressions/Recommendations” section of his reports state, for example, in February 2007, that respondent suffered from headaches. It was not until April 2007, when he wrote that he “suspect[ed” that respondent’s two recent episodes of loss of consciousness were “migrainous in nature,” that he first mentioned that “seizures cannot be fully excluded.” He then wrote that an EEG would be arranged in the April 2007 report and repeated this only intermittently in his reports. There seemed no urgency to the EEG suggestion, and Dr. Cohen simply repeated essentially the same recommendations, though not consistently, until April of this year; there were times when the EEG recommendation was not included in the recommendation section, as in August 2007, when Dr. Cohen wrote only of the headaches and migraines. In his October 2007 report, the EEG was listed as only a suggestion, leaving [respondent] to decide to continue to follow the migraine medication regimen. In his January 2008 report, Dr. Cohen again suggested EEG monitoring, and wrote that respondent requested that this test be arranged through the City neurologist. Dr. Cohen also recommended a cerebral MRI in that report. Dr. Cohen testified that he recommended a home ambulatory EEG, and respondent had expressed reluctance to wear the equipment to work, because it would be embarrassing. Respondent also did not want to take time off from work to have the EEG performed. It was not until this legal proceeding was brought that respondent finally made arrangements for it and took the EEG on March 7 and the MRI on March 3, 2008 (Tr. 99; Resp. Ex. A).

Petitioner also contends that respondent decided on his own to lower the dosage of a medication for migraines (Resp. Ex. A). Respondent stated, to the contrary, that he did so because he was suffering from insomnia at that time and that he discussed it with Dr. Cohen, who agreed to lower the dosage, but later increased it back to the original level and higher (Tr. 127). I find that respondent adjusted that medication in consultation with his treating physician.

Finally, petitioner argues that respondent’s admitted failure to tell Dr. Cohen about an off-duty car accident which occurred in April 2008, shows that respondent is in denial about his condition and unlikely to comply with the treatment program (Tr. 131, 133). Respondent drove his car into a railing. No other car was involved in the accident, which occurred during the daytime. Asked if the accident was a result of a loss of consciousness, respondent answered “not that I know of” (Tr. 131), but he described the same queasiness and lightheadedness that usually preceded his seizures also preceding the accident.

I find that while respondent has had some minimal reluctance to face a diagnosis of seizure disorder, he generally followed his doctor’s orders and is taking his anti-convulsant medication. Respondent’s job does not involve driving and he was alerted at trial to the need for discussing with Dr. Cohen whether he should stop driving as a general matter, unrelated to this proceeding.

As noted, Dr. Cohen testified that he had never sought a description of respondent’s symptoms from respondent’s co-workers, the emergency medical technicians or emergency room staff that could have changed his initial diagnosis of migraine headaches. Dr. Cohen did not believe that it would be helpful to gather reports from EMT’s or emergency room staff because those individuals were not present when respondent was having a seizure (Tr. 101, 118). Therefore, for about fifteen months Dr. Cohen had not diagnosed the problem. This is not respondent’s fault; he went to an expert neurologist and followed his doctor’s instructions.

Petitioner cites Human Resources Administration v. Farber, OATH Index No. 944/02 (Sept. 19, 2002), which involved an attorney with migraine headache syndrome who was found unfit to perform the duties of her position under section 72. Farber is distinguishable, because ALJ Kramer found that respondent’s condition caused poor attendance in the form of frequent absences, late arrivals, and episodes where the start of her work day was delayed for hours due to the time she spent in the bathroom recovering from the effects of severe migraine headaches. During a one-year period, the attorney was absent on 41 days, an absence rate of 17%, and she was late 28 times. ALJ Kramer noted that the attorney had an attendance problem on 69 occasions (when she was absent, late or unable to start work on time even after arriving at the office), or on average more than once per week. Respondent’s poor attendance contributed to her “low work output.” Farber, 944/02, at 26. By contrast, respondent had seizures at work on only five occasions in 2007. Each time he returned to work by no later than the next day, and he always remained current in his work.

This proceeding appears to be more analogous to an earlier proceeding involving Ms. Farber. Human Resources Admin. v. Farber, OATH Index No. 1664/00 (Dec. 7, 2000) (“Farber 1”). In Farber 1, the same attorney sought reinstatement from voluntary leave claiming that her migraine condition had improved and she was now fit to go back to work. In that proceeding, ALJ Kramer credited testimony by the attorney’s treating physician, a neurologist, that respondent’s condition had improved when he changed her medication and that she was now fit to return to work. He found “speculative” the concern expressed by the City’s doctor that stress attendant to respondent’s return to work would quickly render her incapacitated again. Farber, 1664/00, at 21-22.

Here, as in Farber I, it is too soon to conclude that respondent is currently unfit for duty. As Judge Maldonado noted in Department of Parks & Recreation v. Matthews, OATH Index No. 219/00, at 9 (Nov. 22, 1999):

As a general rule, where it is apparent at the time of the hearing that the employee’s condition is in check, or otherwise under control, because the employee recognizes the problem and is taking medication and other steps to treat it, we have declined to find unfitness merely because of the existence of the future potential for relapse or deterioration. See Housing Authority v. Caballero, OATH Index No. 699/96 (Mar. 13, 1996). We have further noted that should deterioration occur, the agency has its remedies under section 72.

I find that the recency of respondent’s current diagnosis and treatment, taken with the undisputed evidence of his current and continuing ability to perform his job and his genuine pursuit of appropriate expert medical treatment, indicate that the agency has not met its burden to prove that respondent is unfit.

FINDINGS AND CONCLUSIONS

1. Respondent likely suffers from the disability of epilepsy or seizure disorder and his treating neurologist only recently diagnosed respondent and started respondent on a new regimen of anti-convulsant medication as a result of a seizure respondent suffered in mid-trial while his doctor was testifying.

2. Respondent is currently fit to perform and does perform the duties of his position as a housing assistant.

RECOMMENDATION

For all of the foregoing reasons, I recommend that the petition be dismissed.

Joan R. Salzman

Administrative Law Judge

June 26, 2008

SUBMITTED TO:

TINO HERNANDEZ

Chairman

APPEARANCES:

TERENCE B. SCHWARTZ, ESQ.

Attorney for Petitioner

MEYER, SUOZZI, ENGLISH & KLEIN

Attorneys for Respondent

BY: AYANA M. BROOKS, ESQ.

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[1] Phenytoin is the generic name for Dilantin (Tr. 90-91).

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