| Matter of O'Sullivan v DiNapoli |
| 2009 NY Slip Op 09356 [68 AD3d 1416] |
| December 17, 2009 |
| Appellate Division, Third Department |
| In the Matter of Michael J. O'Sullivan,Petitioner, v Thomas P. DiNapoli, as State Comptroller,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Zainab A. Chaudhry of counsel), forrespondent.
Peters, 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 respondent whichdenied petitioner's applications for accidental and performance of duty disability retirementbenefits.
In October 1999, petitioner, a firefighter, suffered hearing damage and tinnitus after the airhorn of a fire engine was inadvertently discharged close to his right ear. He returned to full dutywithin a month of the incident and continued to work in that capacity until May 2004, when heexperienced severe chest pains while driving a fire truck in heavy traffic in response to anemergency. Diagnosed with atherosclerotic heart disease, he thereafter underwent quadruplebypass surgery.
In 2004, petitioner applied for accidental and performance of duty disability retirementbenefits based on both incidents. The New York State and Local Police and Fire RetirementSystem denied the applications, finding that, while petitioner was permanently incapacitatedfrom the performance of his duties, his disability was not a natural and proximate result of hisduties as a firefighter. Petitioner sought a hearing and redetermination, at the conclusion of [*2]which the Hearing Officer upheld the denial of bothapplications.[FN*]Specifically, the Hearing Officer concluded that respondent successfully rebutted the statutory"heart presumption" that a firefighter's heart disease was incurred in the performance of his orher duties (see Retirement and Social Security Law § 363-a [1]). With respect tothe October 1999 incident, the Hearing Officer found that petitioner's hearing was not sodiminished as to preclude him from the full performance of his duties. Respondent accepted theHearing Officer's conclusions and denied petitioner's applications, prompting petitioner tocommence this proceeding challenging that determination.
First addressing petitioner's heart condition, there is no dispute that petitioner successfullypassed his preemployment physical and that he is now permanently disabled from performing hisduties as a firefighter due to his heart disease. Inasmuch as petitioner relies exclusively on thestatutory heart presumption contained in Retirement and Social Security Law § 363-a (1),the only issue for our review is whether the Retirement System rebutted this presumption bycompetent medical evidence (see Matter of Lawless v DiNapoli, 56 AD3d 1114, 1115[2008]; Matter of Bryant v Hevesi, 41 AD3d 930, 931 [2007]).
Petitioner, who presented no expert testimony of his own, argues that the expert testimony ofEdward Brown, a board-certified cardiovascular disease specialist who examined petitioner onbehalf of the Retirement System, was insufficient to overcome the statutory heart presumption.We do not agree. Brown diagnosed petitioner with atherosclerosis, a disease in which plaquegradually accumulates in the arteries of the heart and which can progress more rapidly whencertain risk factors are present. He opined that petitioner's heart disease, which led to the chestpains he experienced in May 2004, was caused by the presence of multiple risk factors, includinga family history of early heart disease, hypertension, elevated levels of cholesterol and heavycigarette smoking. It was Brown's opinion that, within a reasonable degree of medical certainty,neither job-related stress, the performance of petitioner's duties as a firefighter, nor an incident inAugust 2002 where petitioner allegedly inhaled smoke while fighting a fire contributed to orcaused his disability. Brown's testimony, coupled with petitioner's medical records and theidentified risk factors, was sufficient to rebut the statutory presumption (see Matter ofLawless v DiNapoli, 56 AD3d at 1115-1116; Matter of Bryant v Hevesi, 41 AD3d at932-933; Matter of Tucker v McCall, 262 AD2d 916, 917 [1999]; Matter ofInguaggiato v Regan, 193 AD2d 1045 [1993]; compare Matter of Skae v Regan, 208AD2d 1028, 1029-1030 [1994]).
Petitioner also challenges the denial of his applications for retirement disability benefitsrelated to his ear injury. Since respondent conceded that such injury was the result of an accidentwithin the meaning of Retirement and Social Security Law § 363, the issue thus distills towhether substantial evidence supports the determination that petitioner's hearing impairmentdoes not render him permanently incapacitated from performing his duties as a firefighter(see Matter of Mullins v New York State Comptroller, 49 AD3d 951, 951-952 [2008];Matter of Zindell v Hevesi, 27 AD3d 996, 997 [2006]). Although petitioner testified thathis ear injury rendered him unable to discern certain tones, especially in noisy situations, andaffected his ability to drive a fire engine, hear the fire radio and perform at the scene of a fire, hefailed to provide any [*3]additional evidence supporting theseassertions, and it is undisputed that he returned to work within a month following the October1999 incident and thereafter continued to work on full duty as a firefighter until the May 2004incident. Moreover, the Retirement System proffered the report of an otolaryngologist whoexamined petitioner and reviewed two audiograms performed on petitioner shortly after theinjury. In this report, the otolaryngologist opined that, although petitioner had "chronic highfrequency hearing loss consistent with acoustic trauma," he had normal bilateral hearing and wasable to hear adequately in normal speech frequencies. He concluded that petitioner is "able tocommunicate adequately to perform the duties of a [f]irefighter." As the otolaryngologist's reportwas "rational, articulate and founded upon a physical examination and review of prior medical[records]," it provided the requisite substantial evidence to support respondent's determination(Matter of Dymond v Hevesi, 24 AD3d 938, 939 [2005]; see Matter of Collins vDiNapoli, 57 AD3d 1148, 1150 [2008]).
Spain, Lahtinen, Kane and Malone Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: During the hearing, petitionerwithdrew his application for accidental disability retirement benefits as to the May 2004incident.