| Matter of Wilkinson v DiNapoli |
| 2011 NY Slip Op 06008 [86 AD3d 851] |
| July 21, 2011 |
| Appellate Division, Third Department |
| In the Matter of James C. Wilkinson, Petitioner, v ThomasP. DiNapoli, as Comptroller of the State of New York,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Stein, 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 accidental disability and performance of duty disability retirementbenefits.
Petitioner, a police officer, sustained an injury to his left shoulder in a motor vehicle accidentin April 2002. Petitioner thereafter reinjured his left shoulder when he was involved in a physicalaltercation while investigating a stabbing in September 2003. In August 2004, petitioner hadapplications for accidental disability and performance of duty disability retirement benefits filedon his behalf, alleging that he was permanently incapacitated from performing his work-relatedduties as the result of the injuries suffered in the two incidents. The applications weredisapproved on the grounds that the April 2002 accident did not occur during the course ofpetitioner's duties and that petitioner had not established that he was permanently incapacitated[*2]from performing his duties. Petitioner requested a rehearingand redetermination,[FN1] after which the Hearing Officer determined that petitioner was permanently incapacitated due tothe injuries suffered in the September 2003 incident and granted the applications for accidentaldisability and performance of duty disability retirement benefits. On review, respondent reversed,finding that petitioner had not established that he was permanently disabled from performing hisduties, and both applications were denied, prompting this CPLR article 78 proceeding.
We confirm. "As an applicant for accidental and performance of duty disability retirementbenefits, petitioner bore the burden of prov[ing] that he [is] permanently incapacitated fromperforming his job duties" (Matter ofGirsh v DiNapoli, 79 AD3d 1444, 1444 [2010] [internal quotation marks and citationomitted]). To that end, petitioner submitted the medical reports of Gary Fink, his treatingphysician. In February 2004, Fink noted that physical therapy had not resolved petitioner'ssymptoms and requested authorization for shoulder surgery. No surgery was performed and, inJune 2004, Fink opined that, although petitioner was capable of light duty, he had "basicallyreached an endpoint in terms of his overall status" and that his "current symptom complex willprobably persist on a permanent basis." Petitioner further relied on a medical report from JohnMazella, an orthopedic surgeon who examined petitioner and reviewed certain of his medicalrecords on behalf of the New York State and Local Retirement System. In a report datedFebruary 3, 2005, Mazella opined that petitioner was permanently disabled from performing hisjob duties with no reasonably safe surgical treatment available to correct his condition.
In contrast, the Retirement System presented a supplemental report prepared by Mazella inDecember 2006, in which he changed his earlier opinion and concluded that petitioner "is notpermanently disabled, since an arthroscopic, generous, subacromial decompression is areasonably safe surgical treatment, which would correct [petitioner's] disabling left shouldercondition." This change of opinion was based on Mazella's review of certain of petitioner'smedical records that he had not reviewed in forming his original opinion. These records included,among other things, the report of Lawrence Foster, who performed an independent medicalexamination of petitioner in February 2004. Foster concluded that petitioner has not reachedmaximum medical improvement for his injuries and that surgery on his left shoulder would beappropriate. Similarly, Thomas Danyliw, who examined petitioner in January 2004,recommended that petitioner undergo decompression surgery and opined that petitioner was notat "full disability at this time."
"Where, as here, there is conflicting medical evidence, respondent is vested with theexclusive authority to weigh such evidence and credit the opinion of one medical expert overanother" (Matter of Gatewood vDiNapoli, 60 AD3d 1266, 1267 [2009] [citation omitted]; accord Matter of Landgrebe vDiNapoli, 77 AD3d 1047, 1048 [2010]). Here, both Foster and Danyliw recommendedsurgery to alleviate petitioner's condition and Mazella ultimately concluded that the surgicalprocedure recommended was safe and would correct petitioner's disability.[FN2] Accordingly, substantial evidence supports respondent's determination that petitioner [*3]failed to establish that he was permanently disabled because a safesurgical procedure exists that could alleviate his disability (see Matter of Hulse v DiNapoli, 70 AD3d 1235, 1237 [2010]; Matter of Mullins v New York StateComptroller, 49 AD3d 951, 952 [2008]).
We reject petitioner's contention that the Hearing Officer erred in admitting Mazella'ssupplemental report into evidence, over his objection, without providing an opportunity tocross-examine him. Although the Retirement System presented testimony from Mazellaregarding such report, it subsequently moved to have the supplemental report received intoevidence and agreed to have his testimony stricken. Notably, Mazella's brief testimony wasnothing more than a recitation of the contents of his reports and there was no indication thateither the Hearing Officer or respondent relied upon such testimony in rendering theirdeterminations. In choosing the option to rely solely on medical records without live testimony,petitioner consented to the inclusion in the hearing record of expert report(s) presented by theRetirement System, based upon the expert's examination of petitioner's medical records.Therefore, petitioner waived any objection to the admission of Mazella's supplemental report (see Matter of Cuttino v New York StateComptroller, 80 AD3d 1067, 1068 [2011]). Under these circumstances, we concludethat due process did not require an opportunity to cross-examine Mazella. Petitioner's remainingcontentions are either academic or not properly before us.
Mercure, J.P., Peters, Malone Jr. and Kavanagh, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.
Footnote 1: Petitioner elected to rely solelyon medical records without live testimony.
Footnote 2: The Retirement System alsopresented the report of orthopedic surgeon Mary Godesky. Godesky noted that petitioner haddeclined having the recommended surgery due to a lack of guaranteed success. Godesky alsoconcluded that petitioner was not permanently disabled from performing his duties.