| Matter of Harko v New York State Comptroller |
| 2007 NY Slip Op 10010 [46 AD3d 1185] |
| December 20, 2007 |
| Appellate Division, Third Department |
| In the Matter of Peter P. Harko, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Peters, 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, accidental disabilityretirement benefits and performance of duty disability retirement benefits.
In January 2003, petitioner, a correction officer with the Department of Correctional Servicesfor over 21 years, applied for accidental disability retirement benefits, ordinary disabilityretirement benefits and correction officer performance of duty disability retirement benefits underRetirement and Social Security Law §§ 507, 507-a and 507-b, alleging that duringhis employment he was involved in numerous violent and traumatic incidents with inmateswhich caused him to suffer from posttraumatic stress disorder, thereby making him permanentlyincapacitated to continue in the performance of his duties. Following the initial disapproval ofthese applications, petitioner requested a hearing and redetermination. The Hearing Officerdenied the applications, finding that only five of the numerous incidents constituted accidentswithin the meaning of the Retirement and Social Security Law, that petitioner's posttraumatic[*2]stress disorder was not the natural and proximate result ofthose incidents and that he was not permanently incapacitated from performing the duties of acorrection officer. After respondent Comptroller adopted the Hearing Officer's findings, thisCPLR article 78 proceeding ensued.
Petitioner must establish his entitlement to disability retirement benefits under each of theprovisions of the Retirement and Social Security Law for which he applied (seeRetirement and Social Security Law §§ 507, 507-a, 507-b; Matter of Macari v Hevesi, 17 AD3d911, 912 [2005]; Matter of Johnsonv Hevesi, 10 AD3d 835, 836 [2004]). Petitioner's treating psychologist, Stephen Rubin,testified that he first treated petitioner in January 2002. Categorizing him as being "on the vergeof a nervous breakdown," Rubin opined that based upon petitioner's symptoms, which includedanxiety, restlessness, anger and irritability, he suffered from posttraumatic stress disorder as aresult of numerous incidents with inmates. Rubin further opined that the disorder was triggeredby petitioner's potential transfer to a maximum security correctional facility. For these reasons,Rubin advised petitioner not to return to work, and opined that petitioner is unable to performany type of gainful employment in a correctional facility.
Ron Wolner, a psychiatrist who testified on behalf of respondent New York State and LocalRetirement Systems, examined petitioner in October 2003. He found petitioner's posttraumaticstress disorder symptoms "markedly diminished" and, while he ultimately diagnosed petitionerwith that disorder, it was predicated upon petitioner's prior severe alcohol abuse. While Wolneragreed that petitioner suffered from significant psychiatric difficulties at the time of his initialdiagnosis, he opined that petitioner was not now suffering from a serious psychiatric disorder thatwould prevent him from returning to work as a correction officer and, therefore, he was notpermanently incapacitated. Wolner explained his disagreement with the opinions of Rubin and asecond psychiatrist, Lisa Norelli, who did not testify at the hearing.
In so far as the Comptroller " 'has the authority to resolve conflicts in medical opinion and. . . credit the testimony of one expert over that of another' " (Matter of Schine v Hevesi, 40 AD3d1362, 1363 [2007], quoting Matter of Harper v McCall, 277 AD2d 589, 590 [2000];see Matter of Macari v Hevesi, 17 AD3d at 912), we find that since Wolner's opinion was"articulated, rational and fact-based" (Matter of Harper v McCall, 277 AD2d at 590),after his review of petitioner's medical records and a physical examination (see id.), weare constrained to confirm the determination as supported by substantial evidence.
Mercure, J.P., Carpinello, Lahtinen and Kane, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.