| Matter of Lipsky v New York State Comptroller |
| 2008 NY Slip Op 09329 [56 AD3d 1101] |
| November 26, 2008 |
| Appellate Division, Third Department |
| In the Matter of Fred H. Lipsky, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Peters, J.P. 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 performance of duty disability retirement benefits.
Petitioner, a sergeant with the Suffolk County Police Department, injured his back at thescene of a motor vehicle accident in February 2004 when he slipped while moving the door ofthe vehicle—which had been removed by the fire department—so that rescuepersonnel would have better access to the accident victim. Petitioner's application forperformance of duty disability retirement benefits was denied by respondent New York State andLocal Police and Fire Retirement System on the ground that petitioner was not permanentlyincapacitated from the performance of his duties. A Hearing Officer affirmed the denial ofbenefits following a hearing, and respondent Comptroller upheld this determination uponadministrative review.
Mitchell Goldstein, a board-certified orthopedic surgeon, testified that petitioner's MRIshowed "significant damage to the spinal column with multiple level herniations." An EMGstudy revealed damage and irritation not only to the spinal cord, but to the nerves of the spinalcord. Goldstein, who started treating petitioner eight months after his injury and continues to see[*2]petitioner every six weeks, concluded that the findings onthese two objective tests were compatible with petitioner's subjective complaints. Goldsteindiagnosed petitioner with lumbosacral herniated discs, sciatica and back pain, and he testifiedthat petitioner's injury was permanent. Reports were also put into evidence on petitioner's behalfby Timothy Mosomillo, an osteopath who treats petitioner three times a week, Stephen Zolan, anorthopedist who conducted an independent medical exam on behalf of petitioner's employer, YanSun, another orthopedic surgeon who performed an independent medical exam on behalf of theWorkers' Compensation Board, and Lewis Levy, a neurologist. Each physician concurred withGoldstein's finding of disc herniation and they also noted various levels of muscle spasm, and thedegree of permanency noted in their reports ranged from "[p]artial moderate permanent" to totaldisability.
A report was also submitted into evidence by Edward Toriello, an orthopedic surgeon whoexamined petitioner on behalf of the Retirement System. Toriello diagnosed petitioner, after anexceedingly brief examination, with "resolved low back strain," finding no muscle spasm and noevidence of disability. Goldstein testified, however, that if petitioner merely had a low backstrain, the EMG and MRI would not have shown the nerve damage and disc herniation.Testimony further revealed that as a result of the herniation and radiculopathy, petitioner's abilityto sit, stand and lift are limited such that he cannot go into the field as he did prior to thisincident, he continues to experience severe pain requiring continued medication and, even thoughon light duty, he has missed over 130 days of work as a result of this incident compared to only14 days missed due to injury in the 19 years prior thereto.
As the Retirement System concedes that petitioner's injury occurred while he was on duty,the only issue with respect to petitioner's application for benefits is whether he is permanentlyincapacitated from performing his duties, and petitioner has the burden to demonstrate suchincapacity (see Matter of Zindell vHevesi, 27 AD3d 996, 997 [2006]; Matter of Savio v Hevesi, 27 AD3d 1002, 1003 [2006]). TheComptroller "possesses the authority to resolve conflicting medical evidence and to credit theopinion of one expert over that of another, so long as the credited expert articulates a rational andfact-based opinion premised upon a physical examination and consideration of the relevantmedical records" (Matter of Clorofilla vHevesi, 38 AD3d 1126, 1126 [2007]; see Matter of Freund v Hevesi, 34 AD3d 950, 951 [2006]). Giventhe testimony at the hearing, as well as the medical evidence submitted, we find that theComptroller's determination that petitioner was not totally incapacitated from performing hisduties as a field sergeant is not supported by substantial evidence and must therefore be annulled(see Matter of Hibbard v New York State & Local Employees' Retirement Sys., 279AD2d 945, 946 [2001]; Matter of Nopper v McCall, 222 AD2d 884, 885 [1995]).
Rose, Lahtinen, Kavanagh and Stein, JJ., concur. Adjudged that the determination isannulled, without costs, petition granted and matter remitted to respondents for furtherproceedings not inconsistent with this Court's decision.