A former Garden City orthopedist who admitted to signing off on the bogus disability applications of hundreds of LIRR retirees wants his conviction thrown out because of new evidence that most of the patients are actually disabled.
Peter Ajemian, 66, is the latest high-profile LIRR disability defendant to challenge his conviction based on federal statistics, first uncovered by Newsday, that nearly all LIRR retirees who reapplied for disability benefits after having them terminated have since been reapproved — even under much closer scrutiny.
Ajemian, who surrendered his medical license and is serving as his own attorney, was sentenced to eight years in prison after pleading guilty in 2013 to conspiracy charges for his role in what federal prosecutors said was a massive scheme to defraud the U.S. Railroad Retirement Board, which administers occupational disability benefits to LIRR employees.
Following the convictions of Ajemian and co-defendant Dr. Peter Lesniewski, the Retirement Board took away the disability benefits from the doctors’ patients. New applications from those patients were “subject to a substantially enhanced review,” according to the board, including new medical exams by independent doctors.
Of 530 new applications, 498 were approved, according to a recent filing from another convicted defendant, former LIRR union boss Joseph Rutigliano.
“Given that it is now established that the patients were in fact disabled and as such these benefits were in fact justified and warranted, the government’s fraud allegations collapse,” Ajemian wrote in his motion. “There is no legal basis to believe that any of Dr. Ajemian’s actions were completed unethically, let alone criminally.”
In court papers opposing Ajemian’s motion, prosecutors said it should be rejected on several grounds, including that the retirement board’s new disability rulings are “irrelevant to the question of whether the defendant conspired with others to submit fraudulent materials” in their original applications.
The new approvals “say nothing about the defendant’s intent to commit fraud or the truth of the relevant documents he prepared for submission to the RRB in the course of the alleged fraud,” according to prosecutors.
Following a 2008 New York Times investigation that found that more than 90 percent of LIRR retirees were receiving disability benefits, federal prosecutors charged several former LIRR workers, two doctors and a retirement board employee with taking part in a conspiracy to defraud the board, including by falsifying medical records. An LIRR spokesman declined to comment Tuesday.
Lesniewski and Rutigliano have also filed motions to have their convictions tossed based, in part, on the board’s high disability re-approval rate.
“The victim says, ‘I’m not a victim,” Rutigliano’s attorney, Joseph Ryan, of Melville, said Tuesday. “We are very confident that the court will right this injustice.”
The fact that most of the LIRR retirees in question have since gotten their disability benefits back is “a big problem” for prosecutors, said Fordham University School of Law Associate Professor James Cohen. But, Cohen said, Ajemian will have to reach a higher bar than his co-defendants to convince a judge that he was wrongly convicted due to his guilty plea.
“It’s very hard, once you’ve admitted guilt, to get your plea back,” said Cohen, adding that the health of Ajemian’s patients is less relevant than him knowingly accepting money to lie. “He’s saying, ‘I really didn’t care. I did what the dollars told me to do.’ ”