| Matter of Walsh v DiNapoli |
| 2011 NY Slip Op 03001 [83 AD3d 1278] |
| April 14, 2011 |
| Appellate Division, Third Department |
| In the Matter of William B. Walsh, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Kavanagh, 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 respondent whichdenied petitioner's application for performance of duty disability retirement benefits.
Petitioner, a detective sergeant for the Village of Larchmont in Westchester County, appliedfor performance of duty disability retirement benefits, pursuant to Retirement and Social SecurityLaw § 363-a, as a result of heart disease. Ultimately, respondent, relying on the findingsand conclusions of the Hearing Officer, denied the application and petitioner commenced thisCPLR article 78 proceeding.
There is no dispute that petitioner is permanently incapacitated from the performance of hisduties as a result of his heart condition. Pursuant to Retirement and Social Security Law §363-a (2), "any condition of impairment of health caused by diseases of the heart, resulting indisability . . . shall be presumptive evidence that it was incurred in the performanceand discharge of duty" (see Matter ofLarberg v Hevesi, 17 AD3d 979, 980 [2005], lv denied 5 NY3d 707 [2005]).Once the presumption is established, the New York State and Local Police and Fire [*2]Retirement System bears the burden of bringing forth competentevidence to rebut it (see Matter ofO'Sullivan v DiNapoli, 68 AD3d 1416, 1417 [2009]; Matter of Larberg vHevesi, 17 AD3d at 980). To successfully rebut the presumption, the Retirement Systemmust present evidence of risk factors along with an expert opinion that " 'excludes an applicant'semployment as a causative factor' " (Matter of Rivera v DiNapoli, 78 AD3d 1295, 1296 [2010], quotingMatter of Bryant v Hevesi, 41 AD3d930, 932 [2007]).
Here, respondent relied upon the opinion of cardiologist Richard Joseph, who performed adisability retirement evaluation on petitioner. Initially, a May 2007 report by Joseph stated thatpetitioner's cardiac condition was 25% related to the physical and mental stress of his position asa police officer. When asked for clarification of his position, Joseph reaffirmed his belief in aSeptember 2007 letter that petitioner's condition was 25% employment-related. While Josephchanged course during his May 2009 testimony and opined that employment-related stress wasnot directly related to petitioner's coronary disease, upon further questioning he admitted thatpsychological or physical stress may have contributed in some smaller way to petitioner'spredisposing risk factors.[FN*]In fact, in the Hearing Officer's decision, it was acknowledged that Joseph found job stress acausative factor, but that it was "vastly outweighed" by petitioner's other risk factors. Thus, wefind that the Retirement System's evidence did not exclude petitioner's employment as acausative factor and, therefore, was insufficient to overcome the statutory presumption (see Matter of Parcell v Office of N.Y. StateComptroller, 29 AD3d 1075, 1075-1076 [2006]; Matter of Skae v Regan, 208AD2d 1028, 1029-1030 [1994]).
Peters, J.P., Spain, Stein and McCarthy, JJ., concur. Adjudged that the determination isannulled, without costs, petition granted and matter remitted to respondent for furtherproceedings not inconsistent with this Court's decision.
Footnote *: At this point, Joseph estimatedthat petitioner's disability was 5% to 10% employment-related.