| Matter of Sedlak v DiNapoli |
| 2011 NY Slip Op 04349 [84 AD3d 1675] |
| May 26, 2011 |
| Appellate Division, Third Department |
| In the Matter of Andre Sedlak, Petitioner, v Thomas P.DiNapoli, as Comptroller of the State of New York, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Paul Groenwegen of counsel), forrespondent.
Spain, 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 applications for performance of duty disability retirement benefits.
Petitioner, a correction officer, applied for performance of duty disability retirement benefitsin January 2004, alleging that he was permanently disabled due to both an injury to his right kneewhile subduing an inmate on October 23, 2003 and to heart disease. Inasmuch as petitionerpremised his application on both an injury to his knee resulting from an act of an inmate pursuantto Retirement and Social Security Law § 507-b (a) and on the heart presumption containedin Retirement and Social Security Law § 507-b (c), respondent treated the application astwo separate applications for performance of duty disability retirement benefits. The applicationswere initially disapproved by respondent.
In July 2005, petitioner was allowed to amend his application regarding his knee to includereferences to two incidents where he injured his right knee at work and required surgery. The firstwas an incident in 1988, where he injured his right knee attempting to handcuff an [*2]inmate. The second was an incident in 2001 that did not involve aninmate, where petitioner alleged that his knee gave out, causing him to fall down some cellblockstairs. The amended application was disapproved and petitioner sought a redetermination of bothapplications. Following hearings, a Hearing Officer determined that the heart presumptionpursuant to Retirement and Social Security Law § 507-b (c) was inapplicable due topetitioner's failure to prove that he is permanently incapacitated from performing his duties as theresult of heart disease. Further, although he found that petitioner was permanently incapacitatedas the result of his knee injury, the Hearing Officer determined that petitioner had failed toestablish that the injury was the direct result of an act of an inmate. Respondent accepted theHearing Officer's determinations and denied the applications, prompting this CPLR article 78proceeding.
We confirm. Regarding petitioner's claim of disability related to heart disease, in order to beentitled to the statutory heart presumption, there must be an "impairment of health caused bydiseases of the heart, resulting in disability" (Retirement and Social Security Law § 507-b[c]; see Matter of Marinelli vDiNapoli, 82 AD3d 1347, 1348 [2011]). While petitioner presented the medical reportsof various cardiologists, which include evidence of him undergoing heart valve replacementsurgery in 1994 and an aortic aneurysm resection in April 2003, none of the cardiologists opinedthat petitioner was disabled as the result of an impairment of the heart and the record reflects thatpetitioner returned to work following these procedures. Further, Joseph Doyle, a cardiologist whoexamined petitioner on behalf of the New York State and Local Retirement System in June 2004,found petitioner's cardiac status to be "stable and asymptomatic." Accordingly, we conclude thatrespondent's determination that petitioner was not disabled from performing his duties as acorrection officer due to heart disease is supported by substantial evidence (see Matter of Bladykas v New York State& Local Employees' Retirement Sys., 75 AD3d 749, 751 [2010]; Matter of Tucker vMcCall, 262 AD2d 916, 917 [1999]).
Turning to petitioner's claim pursuant to Retirement and Social Security Law § 507-b(a), petitioner must demonstrate that an act of an inmate proximately caused his disabling kneeinjury (see Matter of Esposito vHevesi, 30 AD3d 667, 668 [2006]; Matter of Mruczek v McCall, 299 AD2d638, 639 [2002]). To that end, petitioner presented evidence that he was involved in altercationswith inmates in both 1988 and 2003 that resulted in injuries to his right knee. Petitioner alsopresented the reports of orthopedic surgeons William Kilgus, Edwin Mohler and Roy Hepner,who examined him in connection with his claims for workers' compensation benefits. Kilgusfound petitioner to be partially disabled, and apportioned the disability between the 1988, 2001and 2003 incidents. Mohler, who examined petitioner prior to the October 2003 incident, foundthat petitioner suffered from degenerative arthritis in the knee that was caused by the 1988 injury,and that the incident in 2001 was unrelated to this condition. Hepner, who examined petitioner in2002, found that petitioner suffered from "severe osteoarthritis," based upon an X ray report from2001.
In rebuttal, the Retirement System presented the report and testimony of Mary Godesky, anorthopedic surgeon who examined petitioner on its behalf. Godesky found that petitioner waspermanently disabled from his duties as the result of progressive degenerative arthritis of theright knee. Godesky, however, concluded that the cause of petitioner's disability was the 2001incident, and not the 1988 or 2003 incidents. She noted that there were no medical records fromthe 1988 incident and she refuted the existence of degenerative arthritis prior to the 2001incident, based upon the surgeon's report of the 2001 surgery. In that report, the surgeon noted anacute injury to the knee but did not indicate any evidence of a degenerative condition at that[*3]time. In light of this lack of evidence of a degenerativecondition in 2001, and the evidence of the progressive degenerative changes she found in herexamination and which are noted in a 2003 X ray report, Godesky opined that the onset of thedegenerative changes occurred, not as a result of the 1988 and 2003 incidents, but as a result ofthe 2001 incident.
"It is well established that [respondent] is vested with the authority to weigh conflictingmedical evidence and to credit the opinion of one expert over another" (Matter of Rolandelli v Hevesi, 27AD3d 945, 946 [2006] [citations omitted]; accord Matter of Macri v DiNapoli, 56 AD3d 936, 937 [2008]).Inasmuch as the 2001 incident did not involve an inmate and Godesky's conclusion is rationaland fact-based, respondent's determination, that petitioner failed to establish that his disabilitywas the result of an act of an inmate, is supported by substantial evidence and we find no basis todisturb it (see Matter of Fochi v NewYork State Comptroller, 78 AD3d 1460, 1461 [2010], lv denied 16 NY3d 707[2011]; Matter of Gesner vDiNapoli, 78 AD3d 1283, 1284 [2010]).
Mercure, J.P., Kavanagh, Stein and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.