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December 14, 2010

Applying for disability retirement benefits

Applying for disability retirement benefits
Miata v McCall, 277 AD2d 590

Joseph Miata, a Long Island State Parks and Recreation Commission police officer, filed an application for performance of duty disability retirement benefits after he suffered an ankle injury as the result of his tripping while leaving work on August 24, 1995.

After conducting a hearing during which conflicting expert testimony was presented, McCall denied Miata’s application for benefits. Miata appealed, contending that the hearing officer’s decision was not supported by substantial evidence.

The Appellate Division, Third Department, dismissed the appeal. It viewed the testimony by Stuart Kandel, an orthopedic surgeon, that when he examined Miata he concluded that there were no objective abnormalities inasmuch as he noted no swelling, limping, instability nor restriction of motion in comparison to his right ankle to constitute the required substantial evidence.

While Kandel diagnosed Miata as having a sprained ankle and, in his opinion, not incapacitated from the performance of his duties, Miata’s expert testified to the contrary. Situations involving conflicting expert medical opinion present a credibility issue for McCall to resolve. The fact that the record could support a contrary conclusion did not require the court to vacate McCall’s determination.

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