| Matter of Ashley v DiNapoli |
| 2012 NY Slip Op 05771 [97 AD3d 1057] |
| July 26, 2012 |
| Appellate Division, Third Department |
| In the Matter of Thomas J. Ashley, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Peters, 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 and performance of duty disability retirement benefits.
Petitioner retired from the Eastchester Police Department in Westchester County in 2004.His 2003 applications for accidental and performance of duty disability retirement benefits as aresult of cardiac and orthopedic issues that arose during his employment with the policedepartment were initially denied by the New York State and Local Police and Fire RetirementSystem. Following an administrative hearing, a Hearing Officer again denied his applications,concluding, among other things, that, although petitioner was incapacitated from the performanceof his duties, neither his cardiac nor his orthopedic disabilities were the natural and proximateresult of incidents sustained during his service. Respondent adopted the Hearing Officer'sfindings and conclusions. Petitioner thereafter commenced this proceeding, which has beentransferred to this Court.[*2]
Petitioner first contends that the Retirement System failedto rebut the statutory presumption that his heart ailments were incurred in the performance of hisduties as a police officer (see Retirement and Social Security Law § 363-a [2]). Asthere is no dispute that petitioner is entitled to the presumption here, the burden lay with theRetirement System to rebut it by "present[ing] evidence of risk factors along with an expertopinion that excludes [petitioner's] employment as a causative factor" (Matter of Walsh v DiNapoli, 83 AD3d1278, 1279 [2011] [internal quotation marks and citations omitted]; see Matter of Harrison v DiNapoli, 84AD3d 1691, 1692 [2011]; Matter ofLarberg v Hevesi, 17 AD3d 979, 980 [2005], lv denied 5 NY3d 707 [2005];Matter of Skae v Regan, 208 AD2d 1028, 1029 [1994]).
Edward Brown, a cardiologist who examined petitioner and reviewed his medical records,identified as risk factors petitioner's abnormal cholesterol pattern, hypertension and history ofobesity, and concluded that petitioner's cardiac infirmities were the result of "[a]therosclerosisaccelerated by an abnormal lipid pattern and hypertension." According to Brown, petitioner'swork as a police officer played no role in the development of his heart disease. In light ofBrown's testimony and the other evidence in the record demonstrating the long-standingexistence of the risk factors relied on by Brown, we find that the record contains sufficientcompetent evidence to rebut the statutory presumption (see Matter of Harrison vDiNapoli, 84 AD3d at 1692; Matterof Marinelli v DiNapoli, 82 AD3d 1347, 1348 [2011]; Matter of Larberg vHevesi, 17 AD3d at 980-981; Matter of Krupinski v McCall, 302 AD2d 676, 677[2003]). The existence of evidence in the record supporting a contrary conclusion presented aconflict that was within respondent's authority to resolve (see Matter of Harrison vDiNapoli, 84 AD3d at 1692; Matter of Marinelli v DiNapoli, 82 AD3d at 1349;Matter of Krupinski v McCall, 302 AD2d at 677).
Petitioner next asserts that respondent erred in determining that an injury he sustained in July1998 was not the result of an accident within the meaning of Retirement and Social Security Law§ 363. "[T]o be eligible for accidental disability retirement benefits, the disabilities mustresult from a sudden, fortuitous, out of the ordinary and unexpected event that does not resultfrom an activity undertaken in the performance of regular or routine employment duties, and[respondent] has the exclusive authority to determine whether an accident occurred" (Matter of Carroll v DiNapoli, 95 AD3d1498, 1498-1499 [2012] [internal quotation marks and citations omitted]; see Matter of Lorenzo v DiNapoli, 67AD3d 1311, 1312 [2009]). According to petitioner, he experienced neck pain and somelower back pain as he "twisted around to get out [of a police car]." Inasmuch as the risksassociated with exiting a police car are "inherent in the performance of [an officer's] routineduties," and petitioner has offered no evidence indicating that his exit was accompanied byanything out of the ordinary, we decline to disturb respondent's determination (Matter ofLorenzo v DiNapoli, 67 AD3d at 1312).
Finally, we find respondent's determination that petitioner's orthopedic maladies were not thenatural and proximate result of a work-related incident to be supported by substantial evidence(see Matter of Murphy v New YorkState Comptroller, 92 AD3d 1022, 1022 [2012]; Matter of Sweeney v New York State Comptroller, 86 AD3d 893,893 [2011]). Where, as here, the record contains conflicting medical evidence, it is withinrespondent's province to resolve the conflicts " 'and to credit one expert's opinion over that ofanother, so long as the credited expert articulates a rational and fact-based opinion founded upona physical examination and review of the pertinent medical records' " (Matter of Ragno v DiNapoli, 68 AD3d1342, 1344 [2009], quoting Matterof Freund v Hevesi, 34 AD3d 950, 950 [2006]; see Matter of Mazzei v DiNapoli, 90 AD3d 1458, 1459 [2011]).[*3]
Here, respondent credited the testimony and opinion ofJohn Mazella, an orthopedic surgeon who examined petitioner just prior to his retirement andreviewed his medical history. Mazella opined that a February 1996 accident where petitioner slidon leaves and snow while checking a vacant house and injured his back[FN1] was not a "competent producing cause of [petitioner's] present condition," and concluded thatpetitioner's "present condition [was] the result of ongoing natural degenerative process of aging."In reaching his conclusion, Mazella found particularly relevant that petitioner returned to workwithin a week following the accident without any significant medical treatment and that heworked for many years afterwards without major difficulty (compare Matter of Britt v DiNapoli, 91 AD3d 1102, 1103-1104[2012]). In addition, Mazella concluded that petitioner suffered no significant trauma on the dateof the accident. Similarly, petitioner testified that, following the accident, he was brought to theemergency room where X rays were taken—revealing no problems—and he wasdischarged with instructions only to take ibuprofen. An orthopedic surgeon that petitionerconsulted immediately after the accident agreed, and petitioner received no further medical carefor any orthopedic issues for over a year and a half.[FN2] Consequently, we find that, although an asymptomatic preexisting back condition may havebeen aggravated by petitioner's February 1996 accident, the evidence in the record supports theexpert's conclusion that the aggravation was only temporary and was not a cause of petitioner'sultimate disability (see Matter of Orsini v McCall, 221 AD2d 690, 691 [1995]; see also Matter of Mazzei v Hevesi, 45AD3d 1103, 1104 [2007]; Matter of Tucker v McCall, 262 AD2d 916, 917 [1999];compare Matter of Britt v DiNapoli, 91 AD3d at 1103-1104; Matter of Sanchez vNew York State & Local Police & Fire Retirement Sys., 208 AD2d 1027, 1028 [1994]).Accordingly, although there is evidence in the record that could have supported a contrary result,we defer to respondent's resolution of the conflicting evidence and decline to disturb thedetermination (see Matter of Ragno v DiNapoli, 68 AD3d at 1344).
We have considered the parties' remaining arguments and find them to be either renderedacademic or without merit.
Lahtinen, Spain, Malone Jr. and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote 1: The Retirement Systemconcedes that this was an accident within the meaning of Retirement and Social Security Law§ 363.
Footnote 2: Notably, although the burdenwas on petitioner to prove his entitlement to the retirement benefits (see Matter of Murphy vNew York State Comptroller, 92 AD3d at 1022), petitioner failed to offer an expert witnessto testify before the Hearing Officer, instead relying on his own testimony and the submittedrecords.