| Matter of White v DiNapoli |
| 2017 NY Slip Op 06132 [153 AD3d 1080] |
| August 10, 2017 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Isaac White, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
Bartlett, McDonough & Monaghan, LLP, White Plains (Ryan K. Allen of counsel), forpetitioner.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Aarons, 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 denyingpetitioner's application for performance of duty disability retirement benefits.
Petitioner, a correction officer, applied for performance of duty disability retirement benefits(see Retirement and Social Security Law § 607-c) alleging that he waspermanently incapacitated due to work-related injuries to his back as a result of an act of aninmate on July 25, 1992. The application for benefits was initially denied upon the ground thatthe act of the inmate was not the natural and proximate cause of petitioner's disability. Petitionerrequested a hearing and redetermination, and, following a hearing, a Hearing Officer upheld thedenial of the application.[FN*] Respondent accepted the [*2]findings and conclusions of the Hearing Officer, and this CPLRarticle 78 proceeding ensued.
We confirm. To be eligible for performance of duty disability retirement benefits, petitionerbore the burden of demonstrating that his physical or mental incapacitation was "the natural andproximate result of any act of any inmate" (Retirement and Social Security Law§ 607-c [a]; see Matter ofTraxler v DiNapoli, 139 AD3d 1314, 1314 [2016]; Matter of Naughton v DiNapoli, 127 AD3d 137, 139 [2015]). "Wehave repeatedly held that the statute requires that the petitioner demonstrate that his or herinjuries were caused by direct interaction with an inmate" (Matter of Traxler v DiNapoli,139 AD3d at 1314 [internal quotation marks and citations omitted]; see Matter of DeMaio v DiNapoli, 137AD3d 1545, 1546 [2016]; Matter ofPalmateer v DiNapoli, 117 AD3d 1228, 1229 [2014], lv denied 24 NY3d 901[2014]). "Where . . . there is conflicting medical evidence, [respondent] isauthorized to resolve the conflicts and to credit one expert's opinion over that of another so longas the credited expert articulates a rational and fact-based opinion founded upon a physicalexamination and review of the pertinent medical records" (Matter of Chomicki v Nitido, 145 AD3d 1337, 1338 [2016][internal quotation marks and citations omitted]; see Matter of Ortiz v DiNapoli, 98 AD3d 1224, 1225 [2012]).
Petitioner, who started working as a correction officer in 1988, testified that in 1992, heinjured his back while restraining a noncompliant inmate who was involved in a physicalaltercation with another inmate. After receiving medical care and not working for approximately15 days as a result of his injury, petitioner returned to work and performed light-duty work forthe year following the incident. Thereafter, petitioner reinjured his back in 1993 whileperforming yard work and again in 1995 when he fell down stairs while exiting a buildingresulting in lost work time of 40 days. Petitioner also periodically missed time from work due tohis back for about 10 to 30 days each year in 2001, 2002, 2003, 2005, 2007 and 2009. MarcHabif, a chiropractor who first examined and began treating petitioner in 2007 and who reviewedpetitioner's MRI report from 1993, testified that the 1992 injury was responsible for the disablingcondition of petitioner's lumbar spine, which was exacerbated by the 1995 injury.
Bradley Wiener, an orthopedic surgeon who examined petitioner at the request of the NewYork State Police and Fire Retirement System in December 2012 and reviewed petitioner'smedical history, diagnosed petitioner with a lumbosacral strain injury with exacerbation ofdegenerative disc disease, lumbosacral spine with progressive degenerative disc disease andmechanical axial dysfunction of the lumbosacral spine. In stark contrast to the view offered byHabif, Wiener testified that, while petitioner was disabled and not able to work full time as acorrection officer, petitioner's disability was not the natural and proximate result of the injuriesthat petitioner sustained in 1992. Wiener explained that petitioner's disability stems from not onlythe degenerative condition in his back, but also from his disabling conditions in his knees andshoulder, as well as from non-work injuries to his lumbar spine. Significantly, Wiener noted that,based upon his review of petitioner's medical records, petitioner started having back pain as earlyas 1981 and that, notwithstanding his 1992 injury, petitioner returned to work without restrictionfor over 15 years and was working without restriction when he was injured in 1995. To that end,Wiener indicated that the 1992 soft-tissue injury had resolved itself but that injuries sustainedsubsequent to the 1992 injury, including non-work injuries, caused the degenerative condition inhis lumbar spine to progress. Inasmuch as the record contains conflicting medical evidence,respondent was entitled to weigh that evidence and credit the medical opinion of Wiener, whichwas based upon a physical examination of petitioner and a review of his medical [*3]records, and, therefore, respondent's determination that petitioner's1992 injury was not the natural and proximate cause of his disability is supported by substantialevidence and will not be disturbed (see Matter of Chomicki v Nitido, 145 AD3d at1338-1339; Matter of Hunt vDiNapoli, 93 AD3d 1017, 1018 [2012]; compare Matter of Andrus v DiNapoli,114 AD3d 1078, 1079-1080 [2014]).
Egan Jr., J.P., Lynch, Devine and Clark, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *:During the hearing, the NewYork State and Local Police and Fire Retirement System conceded that the incident on July 25,1992 was an act of an inmate and that petitioner is permanently incapacitated and unable toperform the duties of a correction officer. Thus, the sole issue before the Hearing Officer waswhether petitioner's disability was the natural and proximate result of the inmate's actions(see Retirement and Social Security Law § 607-c [a]).