| Matter of Walters v DiNapoli |
| 2011 NY Slip Op 02108 [82 AD3d 1487] |
| March 24, 2011 |
| Appellate Division, Third Department |
| In the Matter of Dennis R. Walters, Petitioner, v Thomas P.DiNapoli, as Comptroller of the State of New York, et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), forrespondents.
Malone Jr., J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondentComptroller which denied petitioner's application for performance of duty disability retirementbenefits.
Petitioner, a correction officer since 1985, applied for performance of duty disabilityretirement benefits, alleging that he was permanently disabled due to a cardiac condition thatresulted in him suffering three heart attacks between 1994 and 2005. Respondent New York Stateand Local Retirement System denied his application, concluding that, although petitioner waspermanently incapacitated, the disability did not result from the performance of his duties as acorrection officer. Following a hearing, a Hearing Officer sustained the denial of benefits andrespondent Comptroller adopted this finding. This CPLR article 78 proceeding by petitionerensued.
It is uncontested that petitioner is permanently incapacitated from performing his duties as acorrection officer as the result of a heart condition and that he successfully passed a physical[*2]examination upon entry into service which did not revealevidence of a heart disease. Accordingly, he is entitled to the presumption that the disabilityincurred in the performance of his duties as a correction officer (see Retirement andSocial Security Law § 507-b [c]). Inasmuch as petitioner relies on this statutorypresumption, the issue here is whether the Retirement System rebutted the presumption by"competent evidence" (Retirement and Social Security Law § 507-b [c]).
Upon our review of the record, we find that the statutory presumption was rebutted. TheRetirement System presented the medical report and opinion of its examining cardiologist, who,after examining petitioner and reviewing his relevant medical records, identified that petitioner"suffers from numerous cardiac risk factors, including obesity, hypertension, hyperlipidemia, andlongstanding cigarette smoking." Further, the expert opined that these factors, as well aspetitioner's positive family history for heart disease, "led to his coronary artery disease andprogression." Regarding petitioner's occupation, the expert opined that petitioner's heartcondition was not causally related to the performance of his work duties and, whileacknowledging that any work-related stress suffered by petitioner may have exacerbated thesymptoms of his coronary artery disease, such stress did not cause the disease. Inasmuch as theexpert opined that petitioner's heart disease was not caused by his occupation or related stress,but rather by the existence of numerous cardiac risk factors unrelated to his job, we conclude thatthe presumption was satisfactorily rebutted (see Matter of Rivera v DiNapoli, 78 AD3d 1295, 1296 [2010]; Matter of Lawless v DiNapoli, 56AD3d 1114, 1115-1116 [2008]; Matter of Bryant v Hevesi, 41 AD3d 930, 931-932 [2007];Matter of Krupinski v McCall, 302 AD2d 676, 677 [2003]; cf. Matter of Parcell v Office of N.Y. StateComptroller, 29 AD3d 1075, 1075-1076 [2006]).
Petitioner's remaining arguments have been considered and found to be without merit.
Mercure, J.P., Rose, Stein and McCarthy, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.