| Matter of Wilson v New York State & Local Retirement Sys. |
| 2009 NY Slip Op 08938 [68 AD3d 1238] |
| December 3, 2009 |
| Appellate Division, Third Department |
| In the Matter of Gary L. Wilson, Petitioner, v New York State andLocal Retirement System, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Spain, 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 applied for disability retirement benefits in August 2004 on the basis of an injuryhe allegedly sustained to his back in November 2003 while working as a floor coveringvocational instructor for the Department of Correctional Services. After his application wasdisapproved, petitioner requested a hearing and redetermination. Following hearings, a HearingOfficer determined that petitioner was not entitled to disability retirement benefits because hefailed to establish that he was permanently incapacitated from the performance of his duties. TheComptroller made one supplemental conclusion of law, but otherwise adopted the findings of theHearing Officer. This CPLR article 78 proceeding ensued.
As the applicant, petitioner bore the burden of proving that he was permanentlyincapacitated [*2]from performing the duties of a floor coveringvocational instructor (see Matter ofRossi v New York State Comptroller, 55 AD3d 1125, 1125-1126 [2008]). In thatregard, petitioner testified that his job entailed a great deal of "hands-on" instruction, whichrequired frequent bending, and that he regularly got down on his hands and knees. Petitioner'ssupervisor agreed, testifying that petitioner would be unable to teach floor covering withoutdemonstrating how it was done. Petitioner also presented reports and medical records from histreating physicians, who concluded that he was permanently incapacitated from performing hisregular job duties as a result of, among other things, lumbar intervertebral disc displacement.
Notably, Thomas Pastore, an independent medical examiner who evaluated petitioner onbehalf of respondent, agreed that petitioner would be unable to perform the duties of a vocationalinstructor if such duties involved lifting more than 25 to 40 pounds, bending, or working on hishands and knees. Nonetheless, based on his review of the Department of Civil Service jobdescription for vocational instructors, as well as information that petitioner had provided to himrelevant to the physical requirements of his occupation, Pastore opined that petitioner was notpermanently incapacitated from performing the functions of his position.
In denying petitioner's application, the Hearing Officer relied on the fact that the vocationalinstructor job description does not specifically require lifting, bending or working on one's handsand knees. We note, however, that the job description is a generic description coveringvocational instructors in a wide variety of fields, from barbering to welding. Nowhere in the jobdescription are the specific duties of a floor covering vocational instructor ever mentioned.Moreover, the description clearly states that instructors will employ "appropriate teaching anddemonstration techniques" and petitioner's and his supervisor's testimony that proper instructionof floor covering tasks requires demonstrations performed on one's hands and knees was notcontroverted. We reject the Hearing Officer's suggestion that because the description authorizedan instructor to request an aide or assistant for any specific activity, no bending would berequired inasmuch as a teacher aide could not be expected to have the expertise necessary toproperly demonstrate techniques. Accordingly, there being no evidence to support theComptroller's determination that petitioner was not required to bend or kneel to perform his job,the denial of the application for benefits on that basis must be annulled (see Matter of Rossi vNew York State Comptroller, 55 AD3d at 1127; Matter of Principe v McCall, 255AD2d 853, 855-856 [1998]).
Peters, J.P., Lahtinen, Kane and Malone Jr., JJ., concur. Adjudged that the determination isannulled, without costs, petition granted and matter remitted to the Comptroller for furtherproceedings not inconsistent with this Court's decision.