| Matter of Johnson v New York State & Local Retirement Sys. |
| 2008 NY Slip Op 06922 [54 AD3d 1130] |
| September 18, 2008 |
| Appellate Division, Third Department |
| In the Matter of James E. Johnson, Petitioner, v New York Stateand Local Retirement System, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Spain, J.P. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of the Comptroller whichdenied petitioner's application for disability retirement benefits.
Petitioner, a mental health therapy aide, filed an application for disability retirement benefitsin April 2003 contending that he was permanently disabled following an August 2001 incidentwherein a patient fell to the ground and pulled on petitioner's left arm.[FN*] Following disapproval of his application by respondent, petitioner requested a hearing andredetermination, at the conclusion of which a Hearing Officer found that petitioner failed toestablish that he was permanently incapacitated from the performance of his duties. TheComptroller accepted those findings, prompting petitioner to commence this proceeding pursuantto CPLR article 78 to [*2]challenge that determination.
As the applicant, petitioner bore the burden of establishing that he is permanentlyincapacitated from the performance of his duties as a mental health therapy aide (see Matter of Mainzer v DiNapoli, 52AD3d 1167 [2008]; Matter ofDavidson v Hevesi, 43 AD3d 589, 590 [2007]). In this regard, petitioner testified thatthe limited range of motion in his neck and left shoulder precludes him from adequatelyperforming his job, which includes the restraint of and responding to attacks by mentally unstablepatients. Petitioner also offered the testimony of his treating physician, John Clark, whodiagnosed petitioner as suffering from cervical spondylosis and cervical disc disease. Clarkdescribed the decreased range of motion in petitioner's neck as moderate to severe and opinedthat this condition, which was causally related to the accident, was permanently disabling andrendered petitioner unfit to perform his duties. Timothy Collard, the board-certified orthopedicsurgeon who evaluated petitioner on behalf of respondent in November 2003, disagreed. Collardacknowledged that petitioner suffered from cervical spondylosis and had a mild to moderatedecrease in range of motion relative to his neck, but opined that such condition did not renderpetitioner permanently disabled from performing his job duties.
The Comptroller is vested with the exclusive authority to weigh the testimony offered bymedical experts and to credit the opinion of one expert over that of another (see Matter of Varriano v Hevesi, 40AD3d 1357, 1359 [2007], lv denied 9 NY3d 815 [2007]). Contrary to petitioner'sargument, Collard's testimony, taken as a whole, is not inconsistent. Indeed, Collard'sopinion—based upon his physical examination and a review of petitioner's medicalrecords—provides competent evidence to support the Comptroller's determination (see Matter of Sweeney v Hevesi, 50AD3d 1366, 1367 [2008]; Matter ofQuigley v Hevesi, 48 AD3d 1023, 1025 [2008]).
Lahtinen, Kane, Malone Jr. and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Respondent conceded that thisincident constituted an accident within the meaning of the Retirement and Social Security Law.