January 6, 2011

Exposure to possibly suffering a permanent disability if continued in the job not persuasive for the purposes receiving disability retirement benefits

Exposure to possibly suffering a permanent disability if continued in the job not persuasive for the purposes receiving disability retirement benefits
Greenway v NYS Employees’ Retirement System, 274 AD2d 662; Motion to appeal dismissed as untimely, 95 NY2d 917

Corrections Officer Gary Greenway’s appeal of a determination by the New York State Employees’ Retirement System rejecting his application for performance of duty disability retirement appeared to present a familiar scenario: the System’s physician concluded that Greenway was not permanently disabled; Greenway’s physician came to the opposite conclusion.

However, there was a significant difference between the two opinions. The System’s medical expert’s opinion was based on his physical examination of Greenway and his review of Greenway’s medical records and diagnostic test results. In contrast, although Greenway’s medical expert concluded that he was permanently incapacitated, the court pointed out that his opinion was not based upon Greenway’s present condition but upon the possibility that Greenway might sustain a serious permanent injury in the event that he was assaulted by an inmate in the future.

The court said that in order to demonstrate his entitlement to accidental and performance of duty disability retirement benefits, Greenway was required to demonstrate that he currently was permanently incapacitated from the performance of his duties. This he failed to do considering the statement of his medical expert that he could be permanently disabled as the result of an assault by an inmate in the future.

Given the nature of conflicting medical opinions offered in this case, the Appellate Division concluded that it was within the Comptroller’s discretion to weigh the expert testimony in the record and to accept the opinion of one medical expert as more credible than that of the other. The court then dismissed Greenway’s appeal.

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