| Matter of Murray v DiNapoli |
| 2010 NY Slip Op 09319 [79 AD3d 1412] |
| December 16, 2010 |
| Appellate Division, Third Department |
| In the Matter of Shawn A. Murray, 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.
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 which deniedpetitioner's application for accidental retirement benefits.
Petitioner, Deputy Chief of the LaGrange Fire Department, was responding to a fire on July 26,2005, when he was involved in a motor vehicle accident that resulted in injuries to his neck, back,mouth, right shoulder and right knee. Thereafter, petitioner underwent treatment for the pain in his backand filed a claim for accidental disability and performance of duty disability retirement benefits, allegingthat he was permanently incapacitated from performing his duties as a firefighter due to the injuries hesustained in the accident. A hearing officer denied his application for accidental disability benefits,finding that, while petitioner was permanently disabled, he had not established that his disability was theresult of the injuries he suffered in the [*2]accident.[FN*]Respondent upheld the determination, and this CPLR article 78 proceeding ensued.
We confirm. It was petitioner's burden to prove that the accident was the cause of his permanentdisability (see Matter of Emerson vDiNapoli, 72 AD3d 1321, 1322 [2010]). Respondent's finding that petitioner's permanentdisability was not the result of injuries he sustained in the accident was based in large measure on anevaluation performed by a board-certified orthopedic surgeon retained by the New York State andLocal Employees' Retirement System to examine petitioner and review his medical records.Specifically, this expert concluded that petitioner had made a full recovery from the injuries he sustainedin the accident, and that his disability was due to "multilevel degenerative disc disease and central canaland bilateral neuro foraminal stenosis, as well as [a] history of gout." While petitioner presented medicalreports indicating that his permanent disability was the result of a chronic lumbar sprain attributed to theaccident, respondent has "the authority to resolve conflicts in the medical evidence and to credit oneexpert's opinion over that of another" so long as the credited opinion, as it was here, was "rational andfact-based [and] founded upon a physical examination and review of the pertinent medical records" (Matter of Freund v Hevesi, 34 AD3d950, 950 [2006]; see Matter of Weeksv New York State Comptroller, 68 AD3d 1427, 1428 [2009]).
Petitioner argues that he was asymptomatic prior to the 2005 accident and that his preexistingcondition, as noted by the Retirement System's expert, was aggravated by injuries he sustained in theaccident. Where a dormant preexisting condition is aggravated by an accident so that it results in " 'adisability that did not previously exist, the accident is responsible for the ensuing disability' " (Matter of King v DiNapoli, 75 AD3d793, 795-796 [2010], quoting Matter of Sanchez v New York State & Local Police & FireRetirement Sys., 208 AD2d 1027, 1028 [1994]). Here, the Retirement System's expert concludedthat the accident caused only a "temporary exacerbation of [petitioner's] chronic, underlying" conditionand did not cause him to become permanently disabled. In that regard, we note that petitioner returnedto work the day after the accident and continued serving as Deputy Chief for the entire year after theaccident. Since competent medical evidence exists establishing that petitioner's disability was caused bythe progression of his degenerative disc disease as well as other physical conditions, none of which arerelated to the accident, we conclude that respondent's determination denying him accidental retirementbenefits is supported by substantial evidence and should be confirmed (see Matter of Emerson vDiNapoli, 72 AD3d at 1322).
Cardona, P.J., Peters, Spain and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Petitioner's application forperformance of duty disability retirement benefits was also denied in a different determination.