| Matter of Harrison v DiNapoli |
| 2011 NY Slip Op 04358 [84 AD3d 1691] |
| May 26, 2011 |
| Appellate Division, Third Department |
| In the Matter of James G. Harrison, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Egan Jr., 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 application for performance of duty disability retirement benefits.
Petitioner, a police detective, underwent a cardiac stent procedure in January 2003 andthereafter returned to work. While conducting a crime scene investigation eight months later,petitioner displayed symptoms of a cardiac event and was transported to a local hospital forevaluation. Following this incident, petitioner returned to work in a light-duty capacity.Thereafter, in March 2007, petitioner applied for performance of duty disability retirementbenefits contending that he was permanently disabled as the result of a heart condition(see Retirement and Social Security Law § 363-a). Although finding that petitionerwas permanently incapacitated from the performance of his duties, the New York State and LocalRetirement System nonetheless denied petitioner's application upon the ground that suchdisability was not the natural and proximate result of an incident sustained in service. [*2]A hearing ensued, at the conclusion of which the Hearing Officerupheld the denial, finding that the Retirement System had tendered sufficient proof to rebut thestatutory "heart presumption" (see Retirement and Social Security Law § 363-a[2]). Respondent made supplemental findings but otherwise upheld the Hearing Officer'sdecision, prompting petitioner to commence this proceeding pursuant to CPLR article 78 tochallenge that determination.
Respondent does not dispute that petitioner is permanently incapacitated from theperformance of his duties and, hence, the issue distills to whether the statutory presumption wasrebutted by competent medical evidence (see generally Matter of Lawless v DiNapoli, 56 AD3d 1114, 1115[2008]; Matter of Bryant v Hevesi,41 AD3d 930, 931 [2007]). Upon our review of the record as a whole, we find that thestatutory presumption was rebutted and, accordingly, confirm respondent's determination.
Richard Cantor, the board-certified cardiologist who evaluated petitioner on behalf of theRetirement System, testified that petitioner had three major risk factors for coronary arterydisease—high blood pressure, elevated lipid levels and a history of smoking.[FN*]After examining petitioner and reviewing his medical records, Cantor opined, within areasonable degree of medical certainty, that these identified risk factors were the major, if notsole, cause of petitioner's coronary artery disease. Although Cantor acknowledged that stresscould produce chest pain or cause an acute occlusion, he unequivocally stated that neither stressnor petitioner's employment as a police detective was the cause of his underlying coronary arterydisease. Such testimony, coupled with petitioner's medical records and the reports submitted byother physicians who either evaluated or treated petitioner, is sufficient to rebut the statutorypresumption (see Matter of Walters vDiNapoli, 82 AD3d 1487, 1488 [2011]; Matter of Marinelli v DiNapoli, 82 AD3d 1347, 1348-1349 [2011];Matter of Rivera v DiNapoli, 78AD3d 1295, 1296 [2010]; Matter ofFeldon v New York State Comptroller, 69 AD3d 1092, 1093 [2010], lv denied15 NY3d 702 [2010]; Matter ofO'Sullivan v DiNapoli, 68 AD3d 1416, 1417-1418 [2009]; compare Matter of Parcell v Office of N.Y.State Comptroller, 29 AD3d 1075 [2006]). To the extent that other documentaryevidence in the record could support a contrary conclusion, we need note only that this presenteda conflict for respondent to resolve (see Matter of Marinelli v DiNapoli, 82 AD3d at1349).
Peters, J.P., Rose, Malone Jr. and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Although petitioner testified thathe was unaware of his high blood pressure and cholesterol levels prior to his stent procedure inJanuary 2003, his medical records nonetheless reveal that these conditions predated that event.Further, Cantor testified that it was the existence of these identified risk factors—and notwhether petitioner was aware of or was being treated for them—that was relevant inascertaining the cause of petitioner's coronary artery disease.