| Matter of Britt v DiNapoli |
| 2012 NY Slip Op 00168 [91 AD3d 1102] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Maurice Britt, Petitioner, v Thomas P.DiNapoli, as Comptroller of the State of New York, et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel), forrespondents.
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 respondentComptroller which denied petitioner's application for performance of duty disability retirementbenefits.
Petitioner was employed as a deputy sheriff when he injured his back while apprehending asuspect in June 1999. He returned to work in 2000 and continued working until January 2005,when he was punched in the lower spine while at work. Respondent New York State and LocalEmployees' Retirement System denied his application for performance of duty disabilityretirement benefits on the ground that, although he was permanently incapacitated fromperforming his duties, his incapacity was not caused by workplace injuries. Petitioner requested aredetermination. Following a hearing, the Hearing Officer affirmed the denial of benefits.Respondent Comptroller upheld that determination. This proceeding ensued.
Petitioner has not preserved his due process arguments. The parties and Hearing Officer allacknowledge that the time of the second hearing was moved without informing petitioner or[*2]his counsel. The Hearing Officer and counsel for theRetirement System apparently agreed to take the direct testimony of the Retirement System'switness—a doctor who conducted an examination of petitioner and reviewed his medicalrecords—and admit his reports, reserving to petitioner the right to object to the testimonyand reports and to cross-examine the doctor at a later time. The record does not supportpetitioner's argument that any ex parte communication addressed matters of fact or law, asopposed to scheduling and procedure. This communication for purely administrative purposeswas not improper (see State Administrative Procedure Act § 307 [2]; Matter of Cantone v DiNapoli, 83AD3d 1259, 1260 [2011]). Petitioner's counsel did not object to the procedure relating to thedoctor's testimony, either in his letter acknowledging that procedure, at the hearing scheduled forcross-examination of the doctor, or in counsel's post-hearing submission. Thus, any argumentconcerning this procedure is unpreserved (see Matter of Adam v County of Onondaga, 26 AD3d 618, 619[2006]; Matter of Porter v McCall, 305 AD2d 920, 922 [2003]). Although there was aninordinate delay in scheduling that may have contributed to the doctor's inability to recall manyaspects of the situation, counsel adequately cross-examined the doctor and pointed out his lack ofrecall.
The Hearing Officer did not err in admitting the doctor's supplemental report. Even thoughthat document was created after the initial determination was rendered, the record at thesehearings is not limited to information available at the time of the initial determination; rather thana review of the initial determination, a hearing is conducted to allow the Comptroller to make a"redetermination" with "the same powers upon such hearing as upon the original application"(Retirement and Social Security Law § 74 [d]; see Matter of Anderson v McCall,294 AD2d 740, 741 [2002]).
The Comptroller's determination is not supported by substantial evidence. As the partiesagree that petitioner is permanently incapacitated from performing his duties, the only issue indispute is whether petitioner has met his burden of demonstrating that his incapacity was thenatural and proximate result of his workplace injuries (see Matter of Micalizzi v DiNapoli, 81 AD3d 1067 [2011]).Petitioner's unrefuted testimony established that he did not experience back problems prior to theJune 1999 incident and, although he was able to resume full duties in 2001, he becamecompletely unable to work after the January 2005 incident. Petitioner's chiropractor, anorthopedic surgeon who did an independent medical exam and a neurosurgeon who conductedanother independent medical exam all agree that petitioner's disability was caused by the twowork-related accidents. In contrast, an orthopedic surgeon who testified on behalf of theRetirement System opined that petitioner's disability stemmed from degenerative disc disease andosteoarthritis, rather than trauma. He characterized petitioner's work incidents as "temporaryaggravations of a chronic underlying pre-existing condition." This medical opinion is at oddswith the legal precept that "when a preexisting dormant disease is aggravated by an accident,thereby causing a disability that did not previously exist, the accident is responsible for theensuing disability" (Matter of Sanchez v New York State & Local Police & Fire RetirementSys., 208 AD2d 1027, 1028 [1994]; see Matter of Tobin v Steisel, 64 NY2d 254, 259[1985]).
Accepting the opinion of the Retirement System's doctor that petitioner suffered fromdegenerative disease that was aggravated by the two incidents, the record still lacks substantialevidence to support the Comptroller's finding of a lack of causation. Petitioner was out of workfor over five months following the 1999 incident, returned to work in a less demanding positionfor a time, then resumed his full road patrol duty and continued in that position withoutlimitations for several years until the 2005 incident. After the 2005 incident, he never returned towork. Because petitioner was completely asymptomatic prior to the 1999 incident, thatincident—[*3]which, according to the Retirement System'sdoctor, aggravated petitioner's dormant condition—would legally be considered a cause ofhis disability (see Matter of Tobin v Steisel, 64 NY2d at 259; Matter of King v DiNapoli, 75 AD3d793, 795-796 [2010]; Matter of Sanchez v New York State & Local Police & FireRetirement Sys., 208 AD2d at 1028; Matter of Thomas v Regan, 125 AD2d 125,127-128 [1987]). Considering that the Comptroller relied on the opinion of the RetirementSystem's doctor, it is unclear if the 2005 incident aggravated the injuries from the 1999 incidentor petitioner's preexisting condition.
Spain, J.P., Malone Jr., Stein and Egan Jr., JJ., concur. Adjudged that the determination isannulled, without costs, petition granted and matter remitted to respondent Comptroller forfurther proceedings not inconsistent with this Court's decision.