The attorneys representing a doctor convicted of fraud for his role in the Long Island Rail Road federal disability scandal are looking for a second trial based on new evidence they say shows that "the overwhelming majority" of his former patients were entitled to disability benefits.
Rockville Centre orthopedist Dr. Peter Lesniewski, 64, is serving an 8-year prison term after being convicted of fraud in 2013 for signing off on what prosecutors said were bogus disability claims filed by dozens of retiring LIRR workers.
But in their motion to the U.S. District Court in Manhattan, Lesniewski's attorneys point to statistics, first uncovered by Newsday last year, showing that nearly all of the LIRR retirees who reapplied for disability benefits after having them terminated because they were examined by Lesniewski have since been reapproved.
According to the most recent U.S. Railroad Retirement Board figures obtained by Lesniewski's attorneys, 167 of 174 Lesniewski patients reapplied for disability benefits. As of June, the board had ruled on 116 of those cases -- denying four and granting 112, or 96.6 percent.
The high approval rate came even after the resubmitted applications were subject to intensified scrutiny, including new medical exams performed by doctors chosen by the retirement board.
Lesniewski's attorneys -- Thomas Durkin, Joshua Dratel and John Cline -- said the high reapproval rate "squarely contradicts a fundamental premise of the government's case at trial" -- that the doctor must have been lying when he declared most of his patients disabled.
A spokesman for Preet Bharara, the U.S. attorney for the Southern District of New York, declined to comment other than to say prosecutors will formally respond to Lesniewski's motion in court.
The federal prosecution stemmed from the high rate of LIRR retirees who received disability benefits, even as some maintained physically active lifestyles. Eventually, 33 defendants were convicted, including 29 former LIRR employees.
Responding to defendants' appeals in March, prosecutors argued that whether Lesniewski's patients truly were disabled was "irrelevant."
"If individual annuitants would have been entitled to an occupational disability if they had actually submitted a truthful application . . . the government still would have proved and they still would have been convicted of fraud for submitting false and exaggerated applications," Assistant U.S. Attorney Daniel Tehrani said.
In their appeal, Lesniewski's attorneys called that argument "extraordinary," and noted that prosecutors relied heavily on convincing jurors that the LIRR retirees were not truly disabled.
If the request for a new trial is rejected, Lesniewski's attorneys are hoping at least for a new sentence, in part because the $80 million Lesniewski was ordered to pay back assumed the retirement board would not have otherwise had to pay benefits to his patients.
Fordham University School of Law associate professor James Cohen said though it's possible that Lesniewski lawyers will put together a valid argument for its "newly discovered evidence," he thinks the court will rule that the current physical shape of the doctor's former patients has no bearing on his guilt.
"The problem was that he was paid to lie," Cohen said.