| Matter of Rivera v DiNapoli |
| 2010 NY Slip Op 07852 [78 AD3d 1295] |
| November 4, 2010 |
| Appellate Division, Third Department |
| In the Matter of Juan C. Rivera, Petitioner, v Thomas P.DiNapoli, as Comptroller of the State of New York, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Kavanagh, 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 Comptroller whichdenied petitioner's application for performance of duty disability retirement benefits.
Petitioner was a correction officer who, in 2004, suffered a myocardial infarction after falling illwhile at work. When it was determined that he could not return to work on account of his resultingmedical condition, petitioner applied for performance of duty disability retirement benefits (seeRetirement and Social Security Law § 507-b [c]). Respondent New York State and LocalRetirement System denied his application, concluding that, although he was permanently incapacitated,his disability "was not sustained as a result of the performance or discharge of his . . .duties." Following a hearing, a Hearing Officer agreed and concluded that petitioner was not entitled toperformance of duty disability retirement benefits. After respondent Comptroller adopted the HearingOfficer's finding and denied petitioner's application for benefits, petitioner commenced this CPLR article78 proceeding to annul that determination.[*2]
We confirm. Retirement and Social Security Law §507-b (c) provides that where an individual has "successfully passed a physical examination on entryinto service as a correction officer" that did not reveal evidence of heart disease and later becomesdisabled as the result of a heart condition sustained during employment, it is presumed that the disabilitywas "incurred in the performance and discharge of duty, unless the contrary be proved by competentevidence." Here, it is not disputed that petitioner successfully passed his physical examination when hebegan his employment as a correction officer or that the myocardial infarction rendered himpermanently incapacitated. Thus, it was the Retirement System's obligation to rebut the presumptionthat petitioner's disability occurred in the performance and discharge of his duties as a correction officer(see Matter of Bryant v Hevesi, 41AD3d 930, 931 [2007]; Matter ofParcell v Office of N.Y. State Comptroller, 29 AD3d 1075, 1075 [2006]).
The Retirement System offered the opinion of a cardiologist who, after examining petitioner,concluded that while work-related stress "can aggravate the symptoms of coronary artery disease,"petitioner's coronary artery disease "was not related to his employment as a correction officer." Inreaching this conclusion, the cardiologist made reference to the fact that petitioner suffered from avariety of risk factors commonly associated with coronary heart disease, including hyperlipidemia(excessive amounts of fat and fatty substances in the blood), diabetes mellitus,[FN1]obesity and hypertension.[FN2]Moreover, contrary to petitioner's assertion, the cardiologist's failure to identify the precise cause of hisheart disease did not render his opinion inconclusive (compare Matter of Parcell v Office of N.Y.State Comptroller, 29 AD3d at 1075-1076). Rather, as this Court previously held, "the [statutory]presumption is effectively rebutted when evidence of risk factors is coupled with expert testimony thatexcludes an applicant's employment as a causative factor" (Matter of Bryant v Hevesi, 41AD3d at 932). For these reasons, and based upon our review of the record as a whole, we find thatthe presumption was effectively rebutted and, accordingly, petitioner's application for benefits wasproperly denied (see Matter of Lawless vDiNapoli, 56 AD3d 1114, 1115 [2008]).
Spain, J.P., Lahtinen, Stein and Garry, JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.
Footnote 1: While the cardiologist accuratelystated that petitioner had insulin-dependent diabetes, the record establishes that he was notinsulin-dependent at the time of his heart attack.
Footnote 2: While the cardiologist's reportcontains inconsistent reference to hypertension, petitioner's medical records confirm that he has ahistory of this condition. Moreover, despite what was noted in that report, petitioner's medical recordsalso reveal that he was a prior smoker.