| Matter of Hulse v DiNapoli |
| 2010 NY Slip Op 01409 [70 AD3d 1235] |
| February 18, 2010 |
| Appellate Division, Third Department |
| In the Matter of Charles M. Hulse, Petitioner, v Thomas P.DiNapoli, as State Comptroller, 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 respondent whichdenied petitioner's applications for accidental disability and performance of duty retirementbenefits.
While responding to an emergency call in 2001, petitioner, a 20-year police officer with theTown of Ramapo Police Department, injured his back lifting a large person in order to performCPR. He was treated for a herniated lumbar disc, was out of work for one month and thenreturned to full duty as a police officer. In September 2003, while participating in a trainingprogram for bike patrol police officers in which the instructor was teaching a technique foravoiding injury when falling off a bicycle, petitioner completed the technique four times butinjured his right shoulder on the fifth attempt. According to petitioner, the injury occurred when,experiencing pain in his lower back when performing the "fall" as directed, he intentionally triedto land on his upper back in order to favor his lower back and instead landed on his rightshoulder. An X ray revealed a shoulder separation, requiring physical therapy. Petitioner wasunable to return to full duty due to right shoulder pain when performing tasks required in policework, and returned part time in a light duty capacity in February 2004, retiring in September[*2]2006.
Petitioner's applications for accidental disability retirement benefits and performance of dutyretirement benefits were initially denied. After a hearing, a Hearing Officer upheld the denialsand respondent adopted those findings. Petitioner then commenced this CPLR article 78proceeding.
We confirm. While petitioner now concedes that his 2001 back injury was not the result ofan accident, he contends that his 2003 shoulder injury constitutes an accident entitling him toaccidental disability retirement benefits. However, under firmly established principles, anaccident in this context is limited to a " 'sudden, fortuitous mischance [which is] unexpected[and] out of the ordinary' " (Matter ofFelix v New York State Comptroller, 28 AD3d 993, 994 [2006] [citation omitted],quoting Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am., 6 AD2d 97, 100[1958], affd 7 NY2d 222 [1959]; see Matter of Kenny v DiNapoli, 11 NY3d 873, 874 [2008]).Excluded, thus, are incidents "where the injury results from an expected or foreseeable eventarising during the performance of routine employment duties" (Matter of Marsala v New York State &Local Employees' Retirement Sys., 14 AD3d 984, 985 [2005] [citation omitted], lvdenied 4 NY3d 709 [2005]; see Matter of Lichtenstein v Board of Trustees of PolicePension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982]; Matter of McKenna v Hevesi, 26AD3d 584, 585 [2006]). At the time of his shoulder injury, petitioner was participating in abicycle training exercise that constituted an ordinary part of his police officer duties andinvolved the normal risks related thereto, and the manner in which he wasinjured—practicing a technique to safely fall off a bicycle—was not unexpected orunforeseeable (see Matter of Felix v New York State Comptroller, 28 AD3d at 994;Matter of McKenna v Hevesi, 26 AD3d at 585; Matter of Marsala v New York State& Local Employees' Retirement Sys., 14 AD3d at 985). As substantial evidence supports thedetermination denying petitioner's accidental disability benefits, it will not be disturbed (see Matter of Magrino v DiNapoli, 64AD3d 868, 869 [2009]).
Turning to petitioner's application for performance of duty retirement benefits for bothinjuries, respondent determined that he failed to meet his burden of showing that he waspermanently incapacitated for the performance of his duties (see Retirement and SocialSecurity Law § 363-c [b] [1]). Petitioner relied solely upon his medical records, includingthose of his treating physician (Louis Starace) for both injuries (from 2003 to 2007), whoconcluded that his prognosis was "poor" for a full recovery from his separated shoulder injury,and that it rendered him permanently disabled from performing all of the duties of his policeofficer position. Petitioner also submitted medical records from several other treating physiciansindicating his symptoms, courses of treatment and inability to work in full-duty capacity atvarious points due to his shoulder or back injury, but none documented that he was permanentlydisabled as a result of either injury.
The New York State and Local Employees' Retirement System presented the testimony andreport of John Mazella, a board-certified orthopedic surgeon who examined petitioner andreviewed petitioner's medical records in November 2005 at their request. Mazella concluded thatpetitioner had no disability attributable to his back injury, which he diagnosed as "lumbarstrain/sprain without radiculopathy [radiating pain]." While he determined that the shoulderinjury resulted in a mild range of motion limitation and strength reduction and would be [*3]permanently disabling without surgery,[FN*]he concluded that petitioner was not permanently incapacitated because he could undergo areasonably safe surgical procedure (a Mumford distal clavicle resection). He did not believe thatpetitioner's chronic Lyme disease, contracted in 1996, would inhibit his full recovery given hissuccessful recovery from two prior unrelated surgeries while he suffered from that disease.Although the outcome of the surgery could not be predicted with any certainty (and it couldworsen his condition), Mazella opined that there was a "high" likelihood that it would relieve hispain and allow him to restore full function to his shoulder. Petitioner testified that he is unwillingto undergo that surgery due to the risks and possible complications. He stated that his treatingdoctor advised him that his chances of success are "50/50," but this is not documented in hismedical records.
Respondent has exclusive "authority to resolve conflicts in medical opinion and to credit thetestimony of one expert over that of another" (Matter of Schine v Hevesi, 40 AD3d 1362, 1363 [2007] [citationomitted]; see Matter of Capparella vMcCall, 7 AD3d 875, 876 [2004]). As Mazella's medical opinion was rationally basedupon an examination of petitioner and his medical records, substantial evidence supportsrespondent's determination that petitioner failed to establish that he was permanentlyincapacitated because a reasonably safe surgical procedure exists that could resolve his shoulderdisability, despite evidence in the record that might support a contrary result (see Matter of Mullins v New York StateComptroller, 49 AD3d 951, 952 [2008]; Matter of Quigley v Hevesi, 48 AD3d 1023, 1025 [2008]; Matter of Beckley v New York State &Local Retirement Sys., 43 AD3d 1267, 1268-1269 [2007]; Matter of Schine vHevesi, 40 AD3d at 1363-1364).
Mercure, J.P., Malone Jr., Stein and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: In an independent medicalexaminer report in 2004, a different orthopedic surgeon opined that petitioner had a "mild partialdisability" to his shoulder.