| Matter of Cuttino v New York State Comptroller |
| 2011 NY Slip Op 00335 [80 AD3d 1067] |
| January 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Dion Cuttino, Petitioner, v New York StateComptroller et al., Respondents. |
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Rose, 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 Comptrollerwhich denied petitioner's application for performance of duty disability retirement benefits.
Petitioner is a correction corporal who injured his head, neck and left shoulder in awork-related fall in 2003. He missed three months of work, returned to light duty for two monthsand then worked full duty until 2005, when he underwent left shoulder surgery to repair a tornlabrum and rotator cuff. Since his surgery, petitioner has worked light duty as the supervisor ofthe mail room. He applied for performance of duty disability retirement benefits in 2006, allegingthat he was permanently disabled from performing his job duties. Respondent Comptrollerdenied the application on the basis that petitioner failed to establish that he was permanentlydisabled, prompting this CPLR article 78 proceeding. We confirm.
Petitioner bore the burden of proving that he was permanently disabled from the performanceof his duties (see Matter of Landgrebe vDiNapoli, 77 AD3d 1047, 1047 [2010]; Matter of Ragno v [*2]DiNapoli, 68AD3d 1342, 1343 [2009]). When there is conflicting medical evidence, the Comptroller isexclusively authorized to weigh and credit one expert's opinion over that of another (see Matter of Gatewood v DiNapoli, 60AD3d 1266, 1267 [2009]; Matter ofJohnson v New York State & Local Retirement Sys., 54 AD3d 1130, 1131 [2008]). Wewill not disturb the Comptroller's determination where the opinion relied upon is rational,fact-based and founded upon a physical examination and a review of the relevant medical records(see Matter of Landgrebe v DiNapoli, 77 AD3d at 1048; Matter of Gatewood vDiNapoli, 60 AD3d at 1267).
Petitioner's treating orthopedic surgeon, Mitchell Goldstein, testified that petitionercontinued to complain of pain in his shoulder following surgery and had limited range of motion,leading to a postsurgical diagnosis of left shoulder pain, adhesive capsulitis and cervical sprainstrain. In light of the foregoing, Goldstein opined that petitioner was permanently incapacitatedfrom performing the duties of his employment. To rebut petitioner's evidence, respondent NewYork State and Local Employees' Retirement System relied on the report and testimony ofEdward Toriello, a board-certified orthopedic surgeon, as well as the report of Steven Schwartz,a neurologist. Toriello testified that, based upon his physical examination of petitioner in 2007and his review of the medical records, petitioner had fully recovered from his surgery and therewas no evidence of an orthopedic disability that would prevent him from performing his jobduties. As for the neurological complaints, Schwartz concluded that they, too, would not interferewith the performance of petitioner's job.
Petitioner's challenges to Toriello's conclusion—that it was based on a review ofirrelevant records and an inadequate examination—are not supported by the record.Although inapplicable medical reports apparently pertaining to the lower extremities of adifferent patient were mistakenly submitted to Toriello for his review, the record is clear that hedid not rely on them. Instead, he based his opinion as to the condition of petitioner's shoulder onhis physical examination, which was limited to the cervical spine and upper extremities, and hisreview of the relevant operative report. Indeed, petitioner's counsel conceded that Toriello hadreviewed the relevant records. As for petitioner's claim that the physical examination was toobrief, there is no evidence that the examination was inadequate for Toriello to determine therange of motion, strength and lack of muscle atrophy of petitioner's upper extremities. Finally,petitioner's challenges to the hearsay nature of Schwartz's report and his inability tocross-examine Schwartz are also unavailing as petitioner waived any objection to the report'sadmission or consideration by expressly consenting to its introduction (see Matter of Feldon v New York StateComptroller, 69 AD3d 1092, 1092 [2010], lv denied 15 NY3d 702 [2010]).
Peters, J.P., Spain, Lahtinen and McCarthy, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.