| Matter of Sweeney v Hevesi |
| 2008 NY Slip Op 03371 [50 AD3d 1366] |
| April 17, 2008 |
| Appellate Division, Third Department |
| In the Matter of Corey B. Sweeney, Petitioner, v Alan G. Hevesi, asComptroller of the State of New York, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent Comptroller whichdenied petitioner's application for accidental disability retirement benefits.
Petitioner applied for accidental disability retirement benefits for injuries he sustained onMarch 1, 1999 and July 11, 2000 while working as an outside maintenance worker for a schooldistrict. Although his application was approved by a Hearing Officer, respondent Comptrolleroverruled that determination and found that the incident in 2000 was not an accident within themeaning of Retirement and Social Security Law § 363. As for the 1999 incident, theComptroller accepted the finding that it was an accident, but remanded the question of whetherpetitioner's incapacity is solely a result of the injuries sustained in that incident. The HearingOfficer then found that it was not the sole cause, the Comptroller upheld that determination andpetitioner commenced this CPLR article 78 proceeding.
Petitioner bears the burden of proving that an injury was accidental and the Comptroller'sdetermination in this regard will be upheld if supported by substantial evidence (see Matter of Sinclair v New York State &Local Retirement Sys., 42 AD3d 595, 596 [2007]). " '[A]n injury that occurs without anunexpected event, as the result of activity undertaken in the [*2]performance of ordinary employment duties (considered in view ofthe particular employment in question) is not an accidental injury' " (Matter of Pryor v Hevesi, 14 AD3d776, 776 [2005], quoting Matter of Cadiz v McCall, 236 AD2d 766, 766 [1997];see Matter of Sinclair v New York State & Local Retirement Sys., 42 AD3d at 596).Here, the 2000 incident occurred while petitioner was repairing a damaged section of fence onhis employer's premises. When petitioner stooped to lift a heavy roll of fencing, he felt a sharppain in his lower back and was later found to have a herniated disc. Citing the Hearing Officer'sinitial finding that lifting the fencing without help constituted a qualifying unexpected event,petitioner contends that fence construction and lifting heavy bundles of fencing for that purposedid not fall within his job description. Petitioner's own testimony, however, showed that it washis job to maintain the fences at his employer's 11 buildings, he had made significant fencerepairs on several prior occasions and he often worked without assistance. The record also showsthat on other occasions, petitioner's work required him to lift or carry heavy equipment andmaterials. Thus, there is ample support for the Comptroller's finding that petitioner's injuryoccurred in the performance of his ordinary duties of a maintenance worker.
As for the injuries to petitioner's neck, sustained in the conceded 1999 accident, there wastestimony by an orthopedic surgeon who had reviewed petitioner's medical records and examinedhim in October 2001 on behalf of respondent New York State and Local Employees' RetirementSystem. This physician found no impairment of petitioner's cervical spine or range of motion,and opined that there was no condition of his neck which would permanently incapacitate himfrom work. Petitioner's treating orthopedic surgeon testified that, due to the 1999 accident,petitioner had two herniated discs in his cervical spine, but probably did not become disableduntil December 2001, after his second injury. The physician also conceded that if petitioner onlyhad the neck problems associated with the first accident, he would still be working.
"It is well established that the Comptroller is vested with the authority to weigh conflictingmedical evidence and to credit the opinion of one expert over another" (Matter of Rolandelli v Hevesi, 27AD3d 945, 946 [2006] [citations omitted]; see Matter of Davenport v McCall, 5 AD3d 850, 851 [2004]). Here,the opinion of the Retirement System's orthopedic surgeon provides credible evidence supportingthe Comptroller's determination (see Matter of Rolandelli v Hevesi, 27 AD3d at 946;Matter of Harper v McCall, 277 AD2d 589, 590 [2000]), notwithstanding other evidencein the record which may support a contrary conclusion (see Matter of Rolandelli vHevesi, 27 AD3d at 946; Matter of Kesick v New York State & Local Employees'Retirement Sys., 257 AD2d 831, 831 [1999]).
Mercure, J.P., Peters, Rose, Kane and Malone Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.