| Matter of Dingee v DiNapoli |
| 2008 NY Slip Op 08391 [56 AD3d 876] |
| November 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of William G. Dingee, Petitioner, v ThomasP. DiNapoli, as New York State Comptroller, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Kane, 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 which deniedpetitioner's application for disability retirement benefits.
Petitioner filed an application for disability retirement benefits after he injured his back atwork. The Retirement System disapproved the application. Following a hearing, the HearingOfficer found that petitioner failed to establish that he was permanently incapacitated fromperforming his duties as a correction officer. Respondent accepted those findings, promptingpetitioner to commence this proceeding.
"An applicant for disability retirement benefits bears the burden of proving that he or she ispermanently incapacitated from the performance of his or her job duties" (Matter of Swack v Hevesi, 30 AD3d853, 854 [2006] [citations omitted]). To that end, petitioner offered the testimony of aphysician who conducted a workers' compensation evaluation and diagnosed him with apermanent partial disability of the back due to a herniated disc. Petitioner's chiropractor opinedthat petitioner was incapacitated from performing the routine duties of a correction officer, butthe chiropractor could not definitively determine permanency until further treatment [*2]was explored. Specifically, weight loss and physical therapy withback strengthening exercises were recommended to assist petitioner with his back problems.While petitioner testified that he engaged in physical therapy for six weeks until his physiciandiscontinued such therapy, he stated that the therapy ended based upon his subjective statementsto his physician that it was not helping him. Petitioner did not produce the physical therapyrecords or any medical proof concerning that therapy.
The New York State and Local Employees' Retirement System offered the testimony of anorthopedic surgeon who reviewed certain medical records and films and conducted two physicalexaminations of petitioner. She determined that, considering petitioner's gain of almost 100pounds in the prior two years, which would impact or exacerbate his back condition, he couldbenefit from weight loss and physical therapy. Until those treatments were explored, theorthopedic surgeon could not diagnose petitioner as suffering from a permanent disability.
Respondent "is vested with the authority to weigh conflicting medical evidence and to creditthe opinion of one expert over another" (Matter of Rolandelli v Hevesi, 27 AD3d 945, 946 [2006]; see Matter of Sweeney v Hevesi, 50AD3d 1366, 1367 [2008]). In determining whether a person is permanently disabled,respondent may consider whether proper medical treatment is reasonably and safely available tocorrect the disability (see Matter of Mondello v Beekman, 78 AD2d 824, 824 [1980],affd 56 NY2d 513 [1982]). Despite some conflicting medical evidence here, the opinionsof the orthopedic surgeon and petitioner's chiropractor constitute substantial evidence to supportrespondent's determination that petitioner is not permanently disabled because further medicaltreatment is available which may alleviate his disability (see Matter of Fragetti v New YorkState Policemen's & Firemen's Retirement Sys., 139 AD2d 867, 868 [1988]; see alsoMatter of Swack v Hevesi, 30 AD3d at 854; Matter of Lynn v Office of Comptroller of State of N.Y., 16 AD3d935, 936 [2005]; Matter of Regan vNew York State & Local Employees' Retirement Sys., 14 AD3d 927, 928 [2005], lvdenied 4 NY3d 709 [2005]). Therefore, we will not disturb that determination.
Mercure, J.P., Peters, Rose and Lahtinen, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.