| Matter of Amedio v Hevesi |
| 2007 NY Slip Op 08329 [45 AD3d 1004] |
| November 8, 2007 |
| Appellate Division, Third Department |
| In the Matter of Gerard Amedio, Petitioner, v Alan Hevesi, asComptroller of the State of New York, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Cardona, P.J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondent whichdenied petitioner's application for accidental disability retirement benefits.
In September 2002, petitioner, a former police officer, submitted an application to the NewYork State and Local Police and Fire Retirement System for accidental disability retirementbenefits. Petitioner claimed permanent disability as a result of a lower back injury sustained inFebruary 2002, when he slipped and fell on icy pavement as he arrived at the scene of a burglary.The Retirement System disapproved the application and, following hearings, the Hearing Officerconcluded that petitioner failed to meet his burden of proving permanent incapacity. Respondentsubsequently issued a final decision denying the application, prompting the commencement ofthis CPLR article 78 proceeding.
To receive accidental disability retirement benefits, petitioner was required to demonstrate,among other things, his permanent incapacity from " 'performing his . . . regular jobduties' " (Matter of Scheuring v NewYork State Comptroller, 32 AD3d 1127, 1127-1128 [2006], [*2]quoting Matter of Liber v McCall, 6 AD3d 950, 950 [2004]; see Matter of Terry v New York StateComptroller, 39 AD3d 1116, 1116 [2007]). Where, as here, the evidence from themedical experts is conflicting, respondent has "the authority to resolve [such] conflicts. . . and to credit one expert's opinion over that of another, so long as the creditedexpert articulates a rational and fact-based opinion founded upon a physical examination andreview of the pertinent medical records" (Matter of Freund v Hevesi, 34 AD3d 950, 950 [2006]; see Matter of Clorofilla v Hevesi, 38AD3d 1126, 1126 [2007]).
Here, while petitioner's physician, Daniel Hubicki, testified that he was permanently andtotally disabled from his job duties as a police officer, the Retirement System's expert witness,orthopedic surgeon Louis Benton, opined that, as a result of his examination of petitioner inMarch 2004, and the relevant medical records, including a 2002 MRI, he found no "objectivecorrelation" between that proof and petitioner's subjective complaints of pain. While Bentonagreed with Hubicki that petitioner suffered from disc degeneration and arthritis, he indicatedthat the disc bulges and annular tears shown on an MRI taken in 2002 were "consistent with aman of age forty-five" and that his injury was not "traumatic in origin." Moreover, althoughBenton acknowledged that an MRI performed after his examination of petitioner revealeda "subtle" change since that time, namely the "minimal to mild" increase in the bulging ofpetitioner's right disc so that it protruded onto petitioner's thecal sac, he indicated that this did notestablish that petitioner was totally disabled.
Notably, in this proceeding, this Court is limited to deciding whether there is substantialevidence for the underlying determination and, in doing so, we do not substitute our judgment forthat of respondent (see Matter of Spencer v New York State & Local Employees' RetirementSys., 220 AD2d 792, 795 [1995]). Thus, regardless of the existence of evidence in the recordthat could support a contrary result (see Matter of Occhipinti v McCall, 305 AD2d 924,925 [2003]), inasmuch as respondent's final determination herein that petitioner was notpermanently incapacitated at the time of his application for benefits was supported by substantialevidence, we find no basis to disturb it (see Matter of Garceau-Scopelitis v New York State Comptroller, 24AD3d 934, 935 [2005]; Matter ofVan Houten v Hevesi, 20 AD3d 643, 644 [2005], lv denied 6 NY3d 703[2005]).
The remaining arguments advanced by petitioner are either lacking in merit or not properlybefore us.
Mercure, Crew III, Carpinello and Kane, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.