| Matter of Girsh v DiNapoli |
| 2010 NY Slip Op 09332 [79 AD3d 1444] |
| December 16, 2010 |
| Appellate Division, Third Department |
| In the Matter of Edward L. Girsh, Petitioner, v Thomas P.DiNapoli, as Comptroller of the State of New York, Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Cardona, P.J. 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 which deniedpetitioner's applications for accidental disability and performance of duty disability retirement benefits.
Petitioner, a 27-year veteran police officer, reportedly sustained injuries to his back and leftshoulder on August 27, 2003 when a shelving unit collapsed on him during the course of his regular jobduties. Claiming that he was permanently incapacitated from the performance of his duties as a result,petitioner applied for accidental and performance of duty disability retirement benefits. The State LocalPolice and Fire Retirement System denied both applications. Following a hearing, the Hearing Officerdetermined, among other things, that while the August 2003 incident was conceded to be an accident,petitioner was not permanently incapacitated from the performance of his duties as a police officer.Respondent accepted the Hearing Officer's findings and denied the applications, resulting in thistransferred CPLR article 78 proceeding.[*2]
As an applicant for accidental and performance of dutydisability retirement benefits, petitioner bore the burden of "prov[ing] that he [is] permanentlyincapacitated from performing his job duties" (Matter of Eddie v DiNapoli, 72 AD3d 1326, 1327 [2010]; see Matter of Salik v New York State & LocalEmployees' Retirement Sys., 69 AD3d 1029, 1030 [2010]). Accordingly, petitionersubmitted his own and a coworker's testimonies, as well as several medical records from his treatingphysicians, all supporting his claim of permanent incapacity as a result of the above accident. In denyingthe applications, respondent relied upon, among other things, the medical report of Robert Hendler, anorthopedist who examined petitioner on behalf of the Retirement System. Hendler opined that althoughpetitioner has a chronic lumbar spine condition, it does not prevent him from performing the duties of apolice officer.[FN*]
Significantly, a determination issued by respondent will not be disturbed so long as it is supportedby "substantial evidence in the form of a rational and fact-based, articulated medical opinion"(Matter of Salik v New York State & Local Employees' Retirement Sys., 69 AD3d at 1030;see Matter of Gatewood v DiNapoli, 60AD3d 1266, 1267 [2009]; Matter ofJohnson v New York State & Local Retirement Sys., 54 AD3d 1130, 1131 [2008]). In thatregard, Hendler's medical opinion was based upon his physical examination of petitioner and his reviewof petitioner's medical records and tests, thus providing the type of fact-based conclusion that supportsa finding of substantial evidence (see Matter of Eddie v DiNapoli, 72 AD3d at 1327;Matter of Salik v New York State & Local Employees' Retirement Sys., 69 AD3d at 1030).While petitioner also provided medical proof supporting his applications, "respondent is vested with theexclusive authority to weigh such evidence and credit the opinion of one medical expert over another"(Matter of Landgrebe v DiNapoli, 77AD3d 1047, 1048 [2010] [internal quotation marks and citation omitted]).
We have examined petitioner's remaining contentions and find them to be either unpersuasive orrendered academic in light of the above conclusions.
Rose, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: We note that, at the hearing, it wasdisputed whether, prior to the August 2003 accident, petitioner's work duties would be considered"light duty" assignments or the unrestricted duties of a regular police officer. Although petitioner assertsthat he was improperly deemed to be on light duty assignment and the opposing medical proof did nottake into account his full duties, the Hearing Officer specifically found that petitioner's regular dutiesincluded strenuous activities, such as making arrests and subduing combative individuals. Further, inconcluding that petitioner was not incapacitated from the performance of his duties as a police officer,Hendler did not qualify his opinion or indicate that petitioner was only capable of light duty assignments.