| Matter of Beckley v New York State & Local Retirement Sys. |
| 2007 NY Slip Op 07052 [43 AD3d 1267] |
| September 27, 2007 |
| Appellate Division, Third Department |
| In the Matter of Richard Beckley, Petitioner, v New York State andLocal Retirement Systems et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Spain, 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 Comptrollerwhich denied petitioner's application for disability retirement benefits.
Petitioner, an automotive mechanic for a school district, injured his left foot in January 2001when he attempted to board a school bus. He applied for and was denied disability retirementbenefits under Retirement and Social Security Law § 605. After the initial denial,petitioner requested a hearing and redetermination. The Hearing Officer also denied theapplication upon a finding that petitioner was not permanently incapacitated from performing hisduties as he had unreasonably refused to submit to a reasonably safe and common surgicalprocedure that could potentially resolve his disability. Respondent Comptroller adopted theHearing Officer's findings and this CPLR article 78 proceeding ensued.
As it is undisputed that petitioner suffers from plantar fasciitis, which has rendered himtemporarily unable to perform his regular duties as a mechanic, the sole issue on this appeal iswhether substantial evidence supports the Comptroller's determination that petitioner did notestablish that the injury rendered him permanently incapacitated.[*2]
John Devanny, a board-certified orthopedic surgeon,examined petitioner and appeared on behalf of respondent New York State and Local RetirementSystems. Based on his examination of petitioner and a review of petitioner's medical records,Devanny opined that petitioner was not permanently incapacitated from performing his duties asa mechanic because there were treatments that petitioner had not tried, including plantar fasciarelease—which he described as a reasonably safe and common, 10-minute outpatientprocedure. According to Devanny, the risk of worsening the condition after surgery wasextremely rare, but the success rate was approximately 80%. This assessment was in accord withthat of John Cambareri, another orthopedic surgeon who had also examined petitioner. In light ofthe evidence indicating that the procedure was reasonably safe and common, it was petitioner'sburden to justify his refusal to consent to it (see Matter of Dymond v Hevesi, 24 AD3d 938, 938 [2005];Matter of Cole-Hatchard v McCall, 305 AD2d 913, 913-914 [2003], lv denied100 NY2d 512 [2003]).
In that regard, petitioner testified that he was not willing to undergo surgery because hispodiatrist had advised him that the surgery success rate was only 50% and that no procedureexists to correct any worsening of his condition if the surgery were unsuccessful. In support ofhis testimony, petitioner submitted a report from another podiatrist who opined that the successrate of the surgery was approximately 50%. The Comptroller is free to resolve conflictingmedical testimony and, thus, we find that substantial evidence supports the Comptroller'sdetermination that petitioner was not permanently incapacitated because a reasonably safe andcommon surgical procedure exists that could resolve petitioner's disability (see Matter of Zindell v Hevesi, 27AD3d 996, 997 [2006]; Matter of Dymond v Hevesi, 24 AD3d at 939; Matter of Fergus v Hevesi, 6 AD3d922, 923 [2004]).
Mercure, J.P., Crew III, Peters and Rose, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.