| Matter of Rogers v DiNapoli |
| 2010 NY Slip Op 08681 [78 AD3d 1472] |
| November 24, 2010 |
| Appellate Division, Third Department |
| In the Matter of Michael J. Rogers, 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.
Lahtinen, 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 application for disability retirement benefits.
Petitioner, a developmental aide for the Central New York Developmental Services Office, appliedfor disability retirement benefits in 2005 based upon an alleged permanent disability as the result ofwork-related injuries he suffered to his ankle, neck and back from 1996 to 2004. The New York Stateand Local Employees' Retirement System disapproved the application and petitioner requested arehearing and redetermination. Following a hearing, the Hearing Officer found that petitioner failed toestablish that he was permanently incapacitated from performing his duties. Respondent accepted theHearing Officer's findings and this CPLR article 78 proceeding ensued.
We confirm. "To be eligible for disability retirement benefits, petitioner must establish that he ispermanently disabled from his regular job duties" (Matter of Doran v New York State & Local Police & Fire Retirement Sys.,56 AD3d 922, 922 [2008] [citations omitted]). To that [*2]end,petitioner offered the medical reports of two chiropractors and his treating orthopedic surgeon, who allconcluded that petitioner was permanently incapacitated from performing his job duties due to bothcervical and lumbar disc herniations. Petitioner also offered the medical report of an orthopedicsurgeon, who conducted a workers' compensation evaluation of him and concluded that petitioner waspermanently disabled due to both lumbosacral and cervical strain superimposed upon degenerative discdisease. In contrast, an orthopedic surgeon who examined petitioner on behalf of the RetirementSystem testified that, although his examination and review of petitioner's medical records revealeddegenerative disease of the cervical and lumbosacral spines, he found no objective evidence of apermanent incapacity to perform his job duties.
It is well settled that respondent is vested with the authority to resolve conflicts in medical evidenceand to credit one expert's opinion over that of another (see Matter of Hayes v DiNapoli, 74 AD3d 1545, 1546 [2010]; Matter of Eddie v DiNapoli, 72 AD3d1326, 1327 [2010]). Inasmuch as the Retirement System's expert articulated a rational andfact-based opinion after examining petitioner and reviewing his pertinent medical records, respondent'sdetermination is supported by substantial evidence and it will not be disturbed (see Matter of Neely v DiNapoli, 71 AD3d1367, 1369 [2010]; Matter of Hulse vDiNapoli, 70 AD3d 1235, 1237 [2010]).
Rose, J.P., Stein, McCarthy and Garry, JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.