| Matter of Brady v DiNapoli |
| 2010 NY Slip Op 07293 [77 AD3d 1041] |
| October 14, 2010 |
| Appellate Division, Third Department |
| In the Matter of Michael Brady, Petitioner, v Thomas P.DiNapoli, as Comptroller of the State of New York, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Paul Groenwegen of counsel), forrespondent.
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 which deniedpetitioner's application for performance of duty disability retirement benefits.
Petitioner, a firefighter, applied for performance of duty disability retirement benefits,alleging that he was permanently disabled due to two work-related injuries to his back. Theapplication was denied. Following a hearing, the Hearing Officer determined that petitioner hadfailed to establish that he was permanently disabled from performing his duties as a firefighter.This CPLR article 78 proceeding ensued.
We confirm. As an applicant for performance of duty disability retirement benefits, petitionerbore the burden of proving that he was permanently incapacitated from performing his duties as afirefighter (see Matter of Ragno vDiNapoli, 68 AD3d 1342, 1343 [2009]; Matter of Lipsky v New York State Comptroller, 56 AD3d 1101,1103 [2008]). To that end, petitioner offered the medical reports of several experts, including hisprimary care physician, a pain management specialist, two radiologists, a neurosurgeon, achiropractor and various psychiatrists. [*2]Of these experts, onlyhis primary care physician opined that petitioner was permanently incapacitated from performinghis job duties. The other experts either found petitioner's disability to be temporary, or did notreach a conclusion as to the permanency of petitioner's disability in their reports. The New YorkState and Local Employees' Retirement System presented the medical reports from an expert whoexamined petitioner on its behalf. Based upon his examination of petitioner, he initially opinedthat petitioner suffered from a permanent disability. In a subsequent report, however, the expertchanged his opinion after reviewing the results of certain tests performed on petitioner andconcluded that petitioner was not permanently disabled. While the Hearing Officer found thechange of opinion of the Retirement System's expert to be unpersuasive, he concluded thatpetitioner had not met his burden of proving a permanent incapacity from his job duties.
In situations where, like here, there are conflicting opinions as to whether petitioner ispermanently disabled, it is well settled that respondent is vested with "the authority to resolveconflicts in the medical evidence and to credit one expert's opinion over that of another" (Matter of Ragno v DiNapoli, 68 AD3d1342, 1344 [2009] [citations omitted]; see Matter of Doran v New York State & Local Police & Fire RetirementSys., 56 AD3d 922, 922 [2008]; Matter of Sweeney v Hevesi, 50 AD3d 1366, 1367 [2008]).Inasmuch as the record contains rational and fact-based expert opinions, founded upon physicalexaminations and the review of relevant medical records, that petitioner's disability is temporary,respondent's determination that petitioner did not meet his burden of establishing permanentincapacity from performing his job duties is supported by substantial evidence and will not bedisturbed, despite evidence in the record that might support a contrary result (see Matter ofTracy v New York State & Local Employees' Retirement Sys., 58 AD3d 1006, 1008 [2009];Matter of Swack v Hevesi, 30 AD3d853, 855 [2006]).
Rose, Lahtinen, McCarthy and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.