| Matter of Landgrebe v DiNapoli |
| 2010 NY Slip Op 07296 [77 AD3d 1047] |
| October 14, 2010 |
| Appellate Division, Third Department |
| In the Matter of Donald Landgrebe, Petitioner, v Thomas P.DiNapoli, as Comptroller of the State of New York, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Stein, 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 which deniedpetitioner's applications for accidental disability and performance of duty disability retirementbenefits.
Petitioner applied for accidental disability and performance of duty disability retirementbenefits alleging that he was permanently incapacitated from performing his job duties as acorrection officer due to work-related injuries suffered to his neck and shoulders in July 2001.Following hearings, the Hearing Officer found that petitioner's injuries were causally related tohis employment but denied both applications on the ground that petitioner failed to establish thathe was permanently incapacitated. Respondent adopted this determination, prompting this CPLRarticle 78 proceeding.
We confirm. As the applicant for benefits, it was incumbent on petitioner to establish that hewas permanently disabled from performing his duties as a correction officer (see Matter [*2]of Ragno v DiNapoli, 68 AD3d 1342, 1343 [2009]).Petitioner testified that due to his injuries, which resulted in surgery to repair a torn rotator cuffin his right shoulder, he had problems lifting things and could not reach over his head on accountof the pain. Further, he testified that he is unable to do many of his job-related duties as a resultof hand tremors and numbness in his fingers and hands. Petitioner also proffered statements ofdisability from his surgeon, a treating physician and his chiropractor, which all indicated thatpetitioner was permanently disabled because of injuries to his shoulders. In contrast, the NewYork State and Local Retirement System presented the medical report and testimony of MaryGodesky, an orthopedic surgeon, who examined petitioner and reviewed his medical records.Godesky concluded that petitioner was not permanently disabled. She opined that, althoughpetitioner exhibited a limited range of motion of his shoulders, he had not undergone furtherrehabilitative steps after his surgery beyond physical therapy that, in her opinion, were"extremely effective in improving range of motion." Godesky further opined that petitionerexhibited symptom magnification and that his hand tremors had no neurological explanation. TheRetirement System also proffered the medical report of neurologist Alexander Rimalovski, whoexamined petitioner and found no objective evidence of a permanent impairment of petitioner'snervous system. He further opined that the tremors reported by petitioner were not an organicmanifestation but were, instead, under the volitional control of petitioner.
"Where, as here, there is conflicting medical evidence, respondent 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]; accord Matter of Neely v DiNapoli, 71AD3d 1367, 1369 [2010]). Inasmuch as Godesky and Rimalovski articulated rational andfact-based opinions based upon their physical examination of petitioner and his medical records,respondent's determination is supported by substantial evidence and we decline to disturb it (see Matter of Hayes v DiNapoli, 74AD3d 1545, 1546 [2010]; Matter ofHulse v DiNapoli, 70 AD3d 1235, 1236 [2010]).
Cardona, P.J., Peters, Rose and Malone Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.