| Matter of Farrell v New York State Comptroller |
| 2008 NY Slip Op 09532 [57 AD3d 1081] |
| December 4, 2008 |
| Appellate Division, Third Department |
| In the Matter of Thomas Farrell, Petitioner, v New York StateComptroller et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
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 Comptroller whichdenied petitioner's application for accidental disability retirement benefits.
Petitioner, a police officer employed by the Port Authority of New York and New Jersey, wasinjured in September 1990 after he fell off a ladder during a training exercise. In August 1991,petitioner was injured after he fell down some stairs in the Port Authority Bus Terminal in Manhattanwhile responding to an emergency call. In 2001 and 2003, petitioner applied for accidental disabilityretirement benefits alleging that he was permanently incapacitated as a result of these incidents.Although finding that petitioner was permanently incapacitated from performing his duties, respondentComptroller denied the applications. Following hearings pursuant to petitioner's request for a rehearingand redetermination, the Hearing Officer determined that petitioner had failed to establish that hisincapacity was causally related to either the 1990 or 1991 incidents and that the 1991 incident did not[*2]constitute an accident pursuant to Retirement and Social SecurityLaw § 363. The Comptroller adopted this determination with supplemental findings of fact,prompting this CPLR article 78 proceeding.
We confirm. Conflicting evidence was presented concerning whether petitioner's permanentdisability is causally related to the incidents of 1990 and 1991. Henry Wroblewski, a specialist in painand spinal disorders who testified on behalf of petitioner, opined that petitioner suffers from adiscogenic disorder of the L4 and L5 nerve root, disc protrusion-herniation at L5/S1 and an annulartear at L4/L5, all causally related to the 1990 fall, with the 1991 incident exacerbating this condition.While Wroblewski conceded that none of these conditions was identified by the various MRI reportson petitioner in the months and years following his falls, and the conditions were not discovered untilbetween 1997 and 2001, he was of the opinion that petitioner's back injuries were causally related.Leon Sultan, an orthopedic surgeon who examined petitioner on behalf of respondent New York Stateand Local Employees' Retirement System, opined that petitioner's disability was causally related to discdegeneration related to age, not trauma. According to Sultan, had petitioner's falls caused thediagnosed disc degeneration and annular tear, such conditions would have been found in the variousMRI reports on petitioner prior to 1997. Since Sultan's opinion took into consideration the fracturedtransverse process, we need not consider the disputed evidentiary rulings which excluded other proofconcerning that fracture.
In these situations, the Comptroller is vested with the authority to weigh conflicting medicalevidence and his determination will be upheld if it is supported by substantial evidence (see Matter of Morgan v Hevesi, 46 AD3d1007, 1007 [2007], lv denied 11 NY3d 701 [2008]; Matter of Maida v McCall,305 AD2d 929, 930 [2003], lv denied 100 NY2d 511 [2003]). We conclude that there wassubstantial evidence supporting the Comptroller's determination that petitioner failed to establish that hispermanent incapacity was caused by the 1990 and 1991 incidents and we will not disturb it (see Matter of Mazzei v Hevesi, 45 AD3d1103, 1104 [2007]). Accordingly, we need not address petitioner's contention that theComptroller erred in concluding that the 1991 fall did not constitute an accident under the meaning ofRetirement and Social Security Law § 363.
Cardona, P.J., Carpinello, Lahtinen and Malone Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.