| Matter of Danieu v DiNapoli |
| 2010 NY Slip Op 07461 [77 AD3d 1152] |
| October 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Patrick J. Danieu, 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.
McCarthy, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondent whichdenied petitioner's application for accidental disability retirement benefits.
While employed as a senior public works wage investigator with the Department of Labor in2001, petitioner injured his back and neck when a stairway handrail broke, causing him tofall.[FN1]He continued to work for several months, then applied for accidental disability retirementbenefits. The application was denied on the basis that petitioner was not permanentlyincapacitated from performing his duties. Petitioner requested a hearing, which includedtestimony by petitioner and Eugene Gosy, one of his treating physicians. The parties alsosubmitted numerous medical reports and records. The [*2]Hearing Officer upheld the original determination and respondentadopted the Hearing Officer's findings and conclusions, with one minor correction. Thisproceeding ensued.
Respondent's determination was not supported by substantial evidence. Petitioner met hisinitial burden of proving that he was permanently incapacitated from performing his duties as apublic works wage investigator (seeMatter of Wilson v New York State & Local Retirement Sys., 68 AD3d 1238, 1239[2009]; Matter of Rossi v New YorkState Comptroller, 55 AD3d 1125, 1125-1126 [2008]). He testified about his physicallimitations following the accident as well as his general job duties, and a formal job descriptionis included in the record. MRIs from December 2001 and January 2002 show seven herniateddiscs and degeneration at multiple levels. According to medical records, his treating orthopedicsurgeon, William Capicotto, diagnosed several herniated discs in the cervical and lumbar spinethat were entirely causally related to the subject accident. Capicotto found that petitioner wastotally and permanently disabled, although his records do not outline petitioner's specific jobduties or explain whether he can perform such duties. Andrew Matteliano, petitioner's treatingphysiatrist from 2002 to 2004, diagnosed multiple disc herniations in the cervical and lumbarspine. In records dating from 2003, Matteliano noted that petitioner's injuries created physicalrestrictions that were not likely to change and that he would never return to his regular job.Although he did not discuss petitioner's specific job duties, he noted various activity restrictionsthat would restrict his ability to work, such as the ability to lift objects heavier than 10 pounds,climb, kneel, crouch, sit more than a total of two hours in an eight-hour work day, and stand,walk or drive for more than a total of one hour per work day. David Phillips, a chiropractor,found petitioner's neck and back injuries causally related to the accident and found that theyrendered him totally disabled, although he did not specify the permanency of that disability.Gosy, a neurologist and pain specialist, opined from his examination and the MRI results thatpetitioner suffered from several herniated discs as a result of the subject accident and theseinjuries were permanent. Gosy identified specific activities that are limited due to the injuries andthat petitioner could not perform his job duties, although Gosy incorrectly testified that petitionerwas a building inspector rather than a wage investigator and was not familiar with the duties ofhis actual position.
Petitioner also relies upon the report of Thomas Pastore, an orthopedic surgeon whoconducted an independent medical examination on behalf of the New York State and LocalRetirement System. Based upon his physical examination of petitioner and review of medicalrecords, Pastore agreed that petitioner suffered from disc herniations at multiple levels of hiscervical and lumbar spine, along with degenerative disc disease. While unable to definitivelyrelate all of petitioner's complaints to the accident, he noted significant back and neck problemsand opined, after reading petitioner's job description, that petitioner could not return to work.After the Retirement System requested clarification, Pastore issued a follow-up report stating thatpetitioner's disc herniations "were of a traumatic origin and not present prior to the injury ofrecord." He further opined that the accident caused a "permanent aggravation of a pre-existingproblem" that would render him "unable to return to his previous occupation as a Senior PublicWorks Investigator."[FN2]Considering Pastore's opinions along [*3]with the testimony andmedical records of petitioner's medical providers, petitioner established that the subject accidentcaused him injuries that rendered him permanently disabled from performing the duties of hisposition.
The Hearing Officer relied primarily upon the report of Howard Beemer, a physician whoreviewed some medical records and examined petitioner on behalf of the Retirement System.Beemer diagnosed petitioner with degenerative disease of the cervical and lumbar spine, but didnot find that this disability, which allegedly developed over a period of years, was causallyrelated to the 2001 accident. He further opined that petitioner was not permanently disabled orunable to perform his duties.
Respondent is vested with the exclusive authority to evaluate conflicting medical opinionsand credit the opinion of one expert over another (see Matter of Varriano v Hevesi, 40 AD3d 1357, 1359 [2007],lv denied 9 NY3d 815 [2007]), however, medical proof can only be relied upon if "thecredited expert articulates a rational and fact-based opinion founded upon a physical examinationand review of the pertinent medical records" (Matter of Freund v Hevesi, 34 AD3d 950, 950 [2006]; see Matter of Ragno v DiNapoli, 68AD3d 1342, 1344 [2009]). Medical opinions "must be viewed in light of the record as awhole and [have] no greater probative force tha[n] the grounds upon which [they are] based"(Matter of Nopper v McCall, 222 AD2d 884, 885 [1995]). Beemer's opinion was notrational and fact-based, nor was it reached after a review of all pertinent medical records.
Pastore and all of petitioner's treating physicians diagnosed him with herniated discs, assupported by the MRIs that showed seven discs were herniated. Beemer diagnosed petitionerwith degenerative disc disease, but made no mention of herniated discs. Without acknowledgingmultiple herniated discs at different levels, Beemer rendered an opinion that petitioner's back andneck condition did not render him disabled. Beemer noted that petitioner informed him that hisposition involved desk work and field interviews, but Beemer failed to note any specific physicalactivities that were required and did not discuss whether petitioner could perform any of thoseactivities. The report does not indicate that he reviewed petitioner's job description, while Pastoreclearly stated that he did so. In a 2007 follow-up report, Beemer noted that a 2006 MRI showedchronic degenerative changes rather than an acute problem. To the contrary, this MRI showedthat the degeneration had remained relatively unchanged since the 2001 MRI. Although hementioned that the radiologist referred to disc degeneration, disc space narrowing and broadbased disc herniation, Beemer again totally disregarded the multiple herniated discs shown on theMRIs. Despite noting that Matteliano was petitioner's primary treating physician and had treatedhim monthly from 2002 through 2004, Beemer stated that he had not reviewed Matteliano'srecords and, without explaining why, stated that such a review was unnecessary. He alsoapparently did not review Pastore's follow-up report.
Beemer's report was not rational or fact-based because he rendered an opinion on petitioner'sback and neck condition without acknowledging that he suffered from seven herniated discs orhow those injuries affected his ability to perform physical activities. There is also no indicationthat Beemer [*4]was fully aware of petitioner's job duties, makinghis opinion speculative. Additionally, he did not review all of the pertinent medical records. Onthe other hand, the Hearing Officer discredited Pastore's opinion on a factually incorrect basis.Viewing the record as a whole, respondent's determination that petitioner was not permanentlyincapacitated from performing the duties of his position—an opinion based solely onBeemer's reports—was not based upon substantial evidence (see Matter of King v DiNapoli, 75AD3d 793, 795-796 [2010]; Matterof Lipsky v New York State Comptroller, 56 AD3d 1101, 1103 [2008]; Matter ofRossi v New York State Comptroller, 55 AD3d at 1127). Accordingly, the determination isannulled.
Cardona, P.J., Lahtinen, Kavanagh and Egan Jr., JJ., concur. Adjudged that the determinationis annulled, without costs, petition granted and matter remitted to respondent for furtherproceedings not inconsistent with this Court's decision.
Footnote 1: Petitioner also injured his armand knee, but those conditions were not diagnosed as permanently disabling.
Footnote 2: The Hearing Officer discreditedPastore's opinion because petitioner had denied any problems prior to this accident. According tothe Hearing Officer, petitioner had "many previous injuries while in military service and as an[i]ronworker that contributed to his neck and back problems." That statement has no factualbasis. The record discloses that petitioner suffered a gunshot wound to the face more than 30years earlier and two broken wrists more than 15 years earlier, but there is no evidence that theseinjuries in any way affected his neck or back.