The opinion of the court was delivered by: Spain, J.
Calendar Date: November 18, 2011
Before: Mercure, Acting P.J., Lahtinen, Spain, Malone Jr. and Kavanagh, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which denied petitioner's application for accidental disability retirement benefits.
Petitioner, a police officer, applied for accidental disability retirement benefits in December 2007 following an incident in which he slipped on black ice while climbing a set of metal steps and injured his left knee and right shoulder. Based upon the results of an independent medical examination that found that petitioner was not permanently incapacitated, his application was denied. Following a hearing to challenge the denial, the Hearing Officer ruled that petitioner had failed to carry his burden of proof regarding the permanency of his incapacity. Respondent accepted the findings and conclusions of the Hearing Officer and denied petitioner's application, prompting the commencement of this CPLR article 78 proceeding.
We confirm. An applicant for accidental disability retirement benefits bears the burden of proving that he or she is permanently incapacitated from performing his or her job duties (see Matter of Wilkinson v DiNapoli, 86 AD3d 851, 852 ; Matter of Byrne v DiNapoli, 85 AD3d 1530, 1531 ). Here, the only competent medical evidence presented was an independent medical examination that found that the December 2007 incident did not cause petitioner's knee injury, but, rather, aggravated a pre-existing condition and that temporary damage to the knee had been resolved to its preaccident condition. The report further opined that the accident was the cause of petitioner's right shoulder injury, but that a reasonably safe surgical procedure was available that would correct that condition. Inasmuch as respondent's denial of benefits was premised upon this medical report, we find that the determination was supported by substantial evidence (see Matter of Biro v DiNapoli, 85 AD3d 1531, 1533 ; Matter of Hodio v DiNapoli, 84 AD3d 1686, 1686 ).
Petitioner further contends that the Hearing Officer erred in failing to consider certain medical evidence presented and in refusing a request for an adjournment of the hearing to submit additional evidence. We disagree. Upon his application for benefits, petitioner was sent a letter by the New York State and Local Retirement System informing him that he had 45 days to submit additional medical information. The record discloses that petitioner made two submissions of medical information, both well past the 45-day deadline, and neither appeared to include information about the results of his shoulder surgery. Furthermore, while the regulations require that an adjournment be requested in writing at least three days prior to the commencement of a hearing, petitioner did not request an adjournment for the purpose of submitting additional medical evidence until after the hearing commenced (see 2 NYCRR 317.5 [b]). Inasmuch as petitioner had the opportunity, pursuant to the regulations, to submit additional medical information or timely request an adjournment for that purpose, we cannot say that the Hearing Officer's rulings enforcing the Retirement System's rules were improper or an abuse of discretion (see 2 NYCRR 317.5 [b]; 317.9 [b]; Matter of Decker v McCall, 305 AD2d 782, 783 , lv denied 100 NY2d 512 ; Matter of Di Francesco v Comptroller of State of N.Y., 277 AD2d 762, 762-763 ).
Mercure, Acting P.J., Lahtinen, Malone Jr. and Kavanagh, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Robert D. Mayberger Clerk of the Court
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