| Matter of Hunt v DiNapoli |
| 2012 NY Slip Op 01856 [93 AD3d 1017] |
| March 15, 2012 |
| Appellate Division, Third Department |
| In the Matter of Sherri Hunt, Petitioner, v Thomas P.DiNapoli, as State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), forrespondent.
Garry, 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 application for performance of disability retirement benefits.
Petitioner, a correction officer, applied for performance of duty disability retirement benefitsin August 2007, alleging that she was permanently disabled due to a 1995 left shoulder injuryresulting from an act of an inmate. Petitioner's application was disapproved and she thereafterrequested a hearing and redetermination. Following a hearing, the Hearing Officer affirmed thedenial of benefits, concluding that petitioner had not established that her current disability wasthe natural and proximate result of the 1995 incident (see Retirement and Social SecurityLaw § 607-c [a]). Respondent adopted the Hearing Officer's findings and this CPLR article78 proceeding ensued.
It was conceded at the hearing that the 1995 incident was an act of an inmate and thatpetitioner is disabled from the performance of her duties, leaving petitioner with the burden ofdemonstrating that her disability was the "natural and proximate result" of the 1995 incident(Retirement and Social Security Law § 607-c [a]; see Matter of Parish v DiNapoli, 89 AD3d 1315, 1316 [2011]; Matter of Koziuk v New York StateComptroller, 78 AD3d 1458, 1459 [2010]). Other than her own assertion, petitioner didnot establish a causal link between her 1995 shoulder injury and her current disability. AlthoughEric Zitzman, the board-certified orthopedic surgeon who evaluated petitioner and her medicalrecords on behalf of the New York State and Local Retirement System, noted tendinitis inpetitioner's left shoulder, he concluded that the 1995 injury was not the competent producingcause of her current disability. Rather, Zitzman opined that petitioner's permanent disability forthe performance of her duties was overwhelmingly due to her inflammatory rheumatoid arthritisinvolving multiple joints that severely restrict functions of the upper and lower extremities andlimit ambulation, as well as fibromyalgia and low back radiculopathy. Although anotherphysician indicated that petitioner's left shoulder injury may possibly contribute to her leftshoulder pain, he concluded that it is "unlikely that her current disability is due to her [1995] leftshoulder injury." To the extent that the record presents conflicting medical evidence, respondenthas the exclusive authority to weigh such evidence and credit one medical opinion over another(see Matter of Neely v DiNapoli, 71AD3d 1367, 1369 [2010]).
As the record reveals that various physicians provided "an articulated, rational and fact-basedopinion" regarding petitioner's disability following a physical examination of petitioner and areview of her medical records, we find no error in the Hearing Officer's determination thatpetitioner's current disability was not a result of the 1995 incident (Matter of Lata v Hevesi, 39 AD3d1131, 1133 [2007] [internal quotation marks and citation omitted]; see Matter of Neely vDiNapoli, 71 AD3d at 1369). Respondent's acceptance of the Hearing Officer's findings andconclusions is, therefore, supported by substantial evidence (see Matter of Lata v Hevesi,39 AD3d at 1133).
Mercure, A.P.J., Rose, Malone Jr. and Egan Jr., JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.