| Matter of Pufahl v Murray |
| 2013 NY Slip Op 07541 [111 AD3d 1050] |
| November 14, 2013 |
| Appellate Division, Third Department |
| In the Matter of Robert W. Pufahl, Petitioner, v Kevin F.Murray, as Deputy State Comptroller, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Spain J. Proceeding pursuant to CPLR article 78 (transferred to this Court by orderof the Supreme Court, entered in Albany County) to review a determination of theComptroller which denied petitioner's application for accidental disability retirementbenefits.
Petitioner, a retired police officer, applied for accidental disability retirement benefitsclaiming that two work-related incidents occurring in 1983 and 2006 caused him to bepermanently incapacitated from his employment. Petitioner's application was initiallydenied. Following an administrative hearing, the Hearing Officer also denied theapplication, finding that the 1983 incident did not constitute an accident within themeaning of the Retirement and Social Security Law and petitioner's disability is not thenatural and proximate result of the 2006 incident, which the New York State and LocalRetirement System conceded was an accident. The Comptroller adopted the HearingOfficer's findings and conclusions. Petitioner thereafter commenced this proceeding.
"[A]n injury which occurs without an unexpected event as the result of activityundertaken in the performance of ordinary employment duties, considered in view of the[*2]particular employment in question, is not anaccidental injury" (Matter ofCrisera v New York State Comptroller, 79 AD3d 1573, 1573 [2010], lvdenied 16 NY3d 712 [2011] [internal quotation marks and citations omitted]). Withregard to the 1983 incident, petitioner was escorting home a pedestrian who hadcollapsed on the street and reported that he had not taken his medicine and was notfeeling well, when the pedestrian again became faint and began to fall. Petitioner quicklyreached out and grabbed the man to prevent him from hitting the ground and, in doingso, petitioner injured his left shoulder. The record supports the Comptroller's conclusionthat this injury arose not from an unexpected event but, rather, from risks inherent in theroutine performance of petitioner's regular job duties (see Matter of Kempkes vDiNapoli, 81 AD3d 1071, 1072-1073 [2011]; Matter of Crisera v New YorkState Comptroller, 79 AD3d at 1573-1574; Matter of Welsh v New York State Comptroller, 67 AD3d1167, 1168 [2009], lv denied 14 NY3d 706 [2010]).
We also find substantial evidence in the record to support the conclusion thatpetitioner's disability is not the result of the 2006 accident. Where, as here, there isconflicting medical evidence, the Comptroller is authorized "to resolve the conflicts andto credit one expert's opinion over that of another so long as the credited expertarticulates a rational and fact-based opinion founded upon a physical examination andreview of the pertinent medical records" (Matter of Ashley v DiNapoli, 97 AD3d 1057, 1059 [2012][internal quotation marks and citations omitted]). In this case, the Comptroller creditedthe report and testimony of John Mazella, an orthopedic surgeon who examinedpetitioner and reviewed the relevant medical records and opined that the 2006 accidentwas "not the competent producing cause" of petitioner's disability. Rather, Mazellaconcluded that the injury sustained in the 2006 accident had successfully healed aftersurgery and that petitioner's permanent disability is the result of degenerative conditionsthat developed over time and were largely present prior to the 2006 accident. Inasmuchas the opinion offered by Mazella and accepted by the Comptroller is rational, fact-basedand founded upon a physical examination and his review of the relevant records, wedecline to disturb the Comptroller's determination even if substantial evidence alsosupports a contrary conclusion (see Matter of Ashley v DiNapoli, 97 AD3d at1059-1060; Matter of Caruana vDiNapoli, 78 AD3d 1302, 1303-1304 [2010], lv denied 16 NY3d 705[2011]; see also Matter ofCantelmo v New York State Comptroller, 105 AD3d 1306, 1308 [2013]).
Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur. Adjudged that the determinationis confirmed, without costs, and the petition dismissed.