| Matter of Meluch v New York State & Local Police & Fire RetirementSys. |
| 2011 NY Slip Op 00147 [80 AD3d 976] |
| January 13, 2011 |
| Appellate Division, Third Department |
| In the Matter of John Meluch, Petitioner, v New York State andLocal Police and Fire Retirement System et al., Respondents. |
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Spain, J.P. 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 Comptrollerwhich denied petitioner's applications for ordinary disability retirement benefits and performanceof duty disability retirement benefits.
In January 2005, petitioner, a firefighter, suffered an injury to his left knee that requiredsurgery. He returned to full-duty work in May 2005. During a training exercise in April 2006,petitioner reinjured his knee and had further surgery in July 2006. Thereafter, petitioner appliedfor ordinary disability retirement benefits and performance of duty disability retirement benefits.When those applications were disapproved, petitioner requested a hearing and redetermination.Following a hearing, the Hearing Officer found that petitioner failed to establish that he waspermanently incapacitated from performing his duties as a firefighter and denied the applications.Respondent Comptroller accepted the Hearing Officer's determination and this CPLR article 78proceeding ensued.
We confirm. Initially, we reject petitioner's contention that the Comptroller improperly reliedon a medical report prepared by orthopaedist John Mazella, retained by respondent New [*2]York State and Local Police and Fire Retirement System, who didnot testify at the hearing and was not subject to cross-examination. Inasmuch as petitioner failedto object to the admission of the report (see Matter of Feldon v New York State Comptroller, 69 AD3d1092, 1092 [2010], lv denied 15 NY3d 702 [2010]) and did not request to callMazella as a witness (see State Administrative Procedure Act § 304 [2]; Matterof Gray v Adduci, 73 NY2d 741, 743 [1988]), we find that petitioner waived any objectionto the admission and consideration of Mazella's report.
Turning to the merits, in support of his applications for disability retirement benefits,petitioner bore the burden of establishing that he is permanently incapacitated from performinghis job duties (see Matter of Eddie vDiNapoli, 72 AD3d 1326, 1327 [2010]; Matter of Weeks v New York State Comptroller, 68 AD3d 1427,1428 [2009]). Petitioner presented the medical reports and testimony of orthopedic surgeonWilliam Thompson, who began treating petitioner following the April 2006 reinjury and testifiedthat, due to the injury to the knee which was not resolved by surgery, petitioner was permanentlyincapacitated from performing his job duties as a firefighter. In contrast, based upon his physicalexamination of petitioner in July 2007 and review of his medical records, Mazella found asatisfactory outcome following the 2006 surgery and concluded that there was no orthopedicdisability precluding petitioner from working full duty as a firefighter. While petitioner contendsthat Mazella failed to review an MRI taken of petitioner following the 2006 surgery, we note thatthere is nothing in the record concerning the results of the postsurgical MRI and petitioner'sexpert did not make reference to it in either his testimony or medical reports. Accordingly,inasmuch as Mazella's opinion was rational, fact-based and made following a physicalexamination of petitioner and a review of his pertinent medical records, we conclude that theComptroller's determination that petitioner failed to establish that he was permanentlyincapacitated is supported by substantial evidence and it will not be disturbed (see Matter ofEddie v DiNapoli, 72 AD3d at 1327; Matter of Ragno v DiNapoli, 68 AD3d 1342, 1343 [2009]).
Lahtinen, Kavanagh, Stein and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.