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Caruana v. DiNapoli

State of New York Supreme Court, Appellate Division Third Judicial Department

November 4, 2010


The opinion of the court was delivered by: Spain, J.


Calendar Date: September 7, 2010

Before: Cardona, P.J., Mercure, Spain, Lahtinen and Garry, JJ.

Proceeding pursuant to CPLR 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller which denied petitioner's application for accidental disability retirement benefits.

Petitioner, a police officer, applied for accidental disability retirement benefits in March 2006, claiming that he was permanently incapacitated due to neck and back injuries*fn1 that he sustained as the result of three work-related incidents occurring in 1982, 1987 and 2003. After his application was initially disapproved, petitioner requested a redetermination and hearings were held. Following the hearings, at which respondent New York State and Local Retirement System conceded that petitioner was permanently incapacitated, a Hearing Officer concluded that petitioner had failed to establish that such incapacity was caused by either the 1987 incident or the 2003 incident*fn2 and denied his application. Respondent Comptroller upheld the Hearing Officer's determination, prompting this CPLR article 78 proceeding.

We confirm. Contrary to petitioner's assertion, he bore the burden of proving that his incapacity was the natural and proximate result of the alleged incidents (see Retirement and Social Law § 363; Matter of Fiore v McCall, 251 AD2d 940, 940-941 [1998]). Moreover, in deciding whether petitioner has satisfied this burden, the Comptroller is empowered to weigh conflicting medical evidence and to credit the opinion of one expert over that of another (see Matter of Eddie v DiNapoli, 72 AD3d 1326, 1327 [2010]). Here, an orthopedic surgeon who performed spinal fusion surgery on petitioner in 2007 opined that petitioner's condition was related to the incident in 1987. Petitioner's chiropractor likewise testified that petitioner's disability was caused by the 1987 and 2003 incidents.

Austin Leve, a board-certified orthopedic surgeon who examined petitioner and reviewed his medical records in August 2006 on behalf of the Retirement System, reached a contrary conclusion. Indeed, Leve opined that neither the 1987 incident nor the 2003 incident resulted in a significant enough injury to render petitioner permanently incapacitated; in doing so, he noted that petitioner did not miss any time from work following either incident. Although Leve did observe degenerative changes in petitioner's neck, he maintained that such changes were "due to the natural course and progression of aging" rather than trauma, and that petitioner's permanent disability was not causally related to either of the two work-related incidents.*fn3 Accordingly, inasmuch as Leve articulated a rational and fact-based opinion founded upon his review of pertinent medical records and a physical examination of petitioner, the Comptroller's decision is supported by substantial evidence and we decline to disturb it (see Matter of Stern v DiNapoli, 57 AD3d 1076, 1077-1078 [2008]).

To the extent not specifically addressed herein, petitioner's remaining contentions have been reviewed and are determined to be without merit.

Cardona, P.J., Mercure, Lahtinen and Garry, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

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