| Matter of Hammond-Timpano v New York State & Local RetirementSys. |
| 2009 NY Slip Op 06627 [65 AD3d 1439] |
| September 24, 2009 |
| Appellate Division, Third Department |
| In the Matter of Gina M. Hammond-Timpano, Petitioner, v NewYork State and Local Retirement System, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Garry, 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 the Comptroller whichdenied petitioner's application for disability retirement benefits.
Petitioner, a stenographer for the Utica City School District, was exposed to fireproofingmaterials twice during the summer of 1992 when the school building she was working in wasunder construction. She sought medical attention for numerous physicalailments—including difficulty breathing, burning in her eyes and mouth and swelling inher hands—on both occasions. Although petitioner was transferred to a different building,she stopped working in February 1993 after she began experiencing similar symptoms whenevershe came into contact with a variety of other materials, including paint and certain officesupplies. Petitioner has not returned to work since that time and applied for disability retirementbenefits in 2002.
After her application was denied by respondent, petitioner requested a hearing andredetermination. Following a hearing at which petitioner was the only person to testify, aHearing Officer concluded that petitioner failed to establish that she was permanentlyincapacitated from performing her job duties. When the Comptroller accepted the Hearing [*2]Officer's findings, petitioner commenced this CPLR article 78proceeding challenging his determination.
We confirm. "An applicant for disability retirement benefits bears the burden of proving thathe or she is permanently incapacitated from the performance of his or her job duties" (Matter of Swack v Hevesi, 30 AD3d853, 854 [2006] [citations omitted]). Here, petitioner attempted to do so by submittingmedical records from five treating physicians. Although two of those physicians opined thatpetitioner was totally and permanently disabled as a result of her exposure to multiple chemicals,one of the two subsequently asserted that she could return to work if she was not subjected torespiratory hazards, and the other acknowledged that "the overwhelming consensus in themedical and scientific community is that inadequate evidence exists to unequivocally back anyscientific theory of causation [as to multiple chemical sensitivity]." An independent medicalexaminer who evaluated petitioner at the request of respondent also concluded that she waspermanently disabled.
To rebut petitioner's evidence, respondent relied on the opinions of two other independentmedical examiners who reached contrary conclusions regarding the severity of petitioner'sdisability. Indeed, after examining petitioner, one physician remained unconvinced that she had"demonstrated disease in any area." The second physician, similarly, "f [ou]nd it difficult toexplain her frequent symptoms with minimal to no physical findings by multiple providers overthe span of more than a decade," and opined that petitioner was not disabled from performing herduties as a stenographer.
"Where, as here, there is conflicting medical evidence, [the Comptroller] is vested with theexclusive authority to weigh such evidence and credit the opinion of one medical expert overanother" (Matter of Gatewood vDiNapoli, 60 AD3d 1266, 1267 [2009] [citation omitted]). Accordingly, inasmuch asboth credited experts articulated rational and fact-based opinions founded upon pertinent medicalrecords and a physical examination of petitioner, the Comptroller's determination is supported bysubstantial evidence and we decline to disturb it (see Matter of Tracy v New York State &Local Employees' Retirement Sys., 58 AD3d 1006, 1008 [2009]).
Cardona, P.J., Mercure, Spain and Kavanagh, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.