| Matter of Biro v DiNapoli |
| 2011 NY Slip Op 05616 [85 AD3d 1531] |
| June 30, 2011 |
| Appellate Division, Third Department |
| In the Matter of Andrew S. Biro, 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.
McCarthy, 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 applications for disability and performance of duty disability retirementbenefits.
Petitioner, a correction officer, injured his right shoulder in an altercation with an inmate inOctober 2007. Although he returned to light duty shortly after the incident, he underwentshoulder surgery in January 2008 and never returned to work. In March 2008, petitioner appliedfor enhanced disability retirement benefits under Retirement and Social Security Law §507-a and performance of duty disability retirement benefits. He retired from his position inAugust 2008. The applications were initially denied and petitioner requested a hearing andredetermination. Following a hearing, the Hearing Officer upheld the denial of the applications,finding that petitioner was not permanently incapacitated from the performance of his duties.Respondent adopted the findings and conclusions of the Hearing Officer, prompting this CPLRarticle 78 proceeding.[*2]
We confirm. As an applicant for disability retirementbenefits, petitioner bore the burden of establishing that he is permanently disabled fromperforming his duties as a correction officer (see Matter of Landgrebe v DiNapoli, 77 AD3d 1047, 1047 [2010];Matter of Cavalieri v New York State &Local Retirement Sys., 53 AD3d 906, 907 [2008]). Petitioner testified that due to theinjury, he has lost strength and he believes that he is unable to perform his work duties, includingrestraining inmates and protecting himself, other correction officers and inmates from harm. Healso testified that he does not believe that he would be able to pass the various certificationsregarding firearm usage required of correction officers. Petitioner also offered the reports of hisorthopedic surgeon, which indicate that petitioner was totally disabled in March 2008, at the timehe applied for disability retirement benefits. We note, however, that in July 2008, the surgeonreported that petitioner was able to go back to full duty work as a correction officer as of August11, 2008. Instead, however, petitioner chose to retire on that date. The record also reflects thatsubsequent reports from petitioner's orthopedic surgeon are inconsistent, indicating thatpetitioner had returned to work without restrictions, although petitioner testified that he hadalready retired by that time, and also indicating that he was permanently disabled.
In contrast, the New York State and Local Retirement System presented the medical report ofan orthopedic surgeon who examined petitioner and his medical records on its behalf. Basedupon this examination, the Retirement System's expert reported that petitioner had improvedsignificantly since the surgery and unequivocally opined that petitioner is not permanentlydisabled from performing his duties as a correction officer. To the extent that conflicting medicalevidence was presented, "respondent is vested with the exclusive authority to weigh suchevidence and credit the opinion of one medical expert over another" (Matter of Gatewood v DiNapoli, 60AD3d 1266, 1267 [2009]). Here, in denying the applications, respondent credited theopinion of the Retirement System's expert, as well as that portion of the opinion of petitioner'sexpert that found petitioner able to return to full duty prior to his retirement. Inasmuch as themedical evidence relied on was rational and fact-based, founded upon a physical examination ofpetitioner and a review of his medical records, respondent's determination is supported bysubstantial evidence and will not be disturbed (see Matter of Brady v DiNapoli, 77 AD3d 1041, 1043 [2010]; Matter of Clorofilla v Hevesi, 38 AD3d1126, 1126-1127 [2007]).
Rose, J.P., Malone Jr., Stein and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.