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Monday, October 17, 2011

Conflicting expert testimony


Conflicting expert testimony
Irish v McCall, 297 AD2d 895
Myers v McCall, 2 AD3d 1250, 1251 [2003], lv denied 2 NY3d 702 [2004]
Washington v McCall, 297 AD2d 901

If the decision maker credits the testimony of one expert over that of another in an administrative proceeding and the decision hinges on that expert's testimony, does the losing party have any recourse if it disagrees with the decision maker's determination regarding the credibility of the experts? In a word, YES! But the burden of proof to be satisfied by the party challenging the ruling is an extremely difficult one to meet.

For example, insofar as challenges to the Comptroller's reliance on the opinion of the New York State Employees' Retirement System's [ERS] medical expert is concerned, the Appellate Division had held that unless the "expert's opinion is so lacking in foundation or rationality as to preclude [the Comptroller] from exercising the authority to evaluate conflicting medical opinions," the court has no basis to disturb the Comptroller's decision. The court cited Harper v McCall, 277 AD2d 589, as its authority for this view.

The Comptroller's determination as to the creditability of the testimony of medical experts was the subject of three appeals recently considered by the Appellate Division, Third Department.

All three decisions challenged the Comptroller's sustaining rulings made by ERS based on the opinions of ERS's medical experts rather than the testimony of the medical experts produced by the applicants.

In each of the cases ERS had rejected applications for disability retirement benefits and the Comptroller had denied the applicants' appeals from those rulings.

In all three cases (Irish v McCall, Myers v McCall, and Washington v McCall), there was no factual dispute regarding the existence of injury; rather, the dispute in each case concerned whether or not the respective injuries sustained were so debilitating as to permanently disable the employee from performing his or her duties.

Each employee presented expert medical expert testimony by a physician at the administrative hearing in which, in all three cases, the medical expert concluded that the employee was permanently incapacitated from working. ERS, on the other hand, produced its own expert medical expert in each of the hearings. The thrust of the testimony of ERS's expert in each case was the employee-applicant was capable of performing the duties of the position.

While all three disability applicants argued there wasn't substantial evidence in the record to justify the rejection of their respective disability retirement applications, their underlying argument was that the Court should consider the testimony of their respective experts and weight it against the medical expert's testimony relied upon by the Comptroller.

The Court rejected this approach and stated that the relevant statute is very clear concerning determining the existence of a disability for the purposed of approving an application for a disability retirement allowance.

Citing Section 605(3c) of the Retirement and Social Security Law, the Appellate Division said that:

If the retirement system determines that the member is physically or mentally incapacitated for the performance of gainful employment, and that he was so incapacitated at the time he ceased his performance of duties and ought to be retired for disability, he shall be so retired.

Here ERS denied the applications submitted by the three workers based on the testimony of its medical expert. The hearing officer sustained ERS's determination and the Comptroller adopted the findings of the hearing officer.

Courts, said the Appellate Division, have consistently ruled that they will defer to a hearing officer's determination with respect to credibility issues. The Third Department said it was not persuaded as to the need to change that practice and upheld the Comptroller's denial of benefits in all three cases.

The test applied by the courts in such situations:

Where there is an articulated, rational and fact-based medical opinion offered, inconsistencies or other alleged deficiencies in the expert's testimony present questions of credibility for the administrative fact finder, rather than the courts, to resolve.

In all probability the same standard would be applied in cases challenging the appointing authority's reliance on the opinion of its medical expert in situations involving disability claims the involving Sections 71, 72 and 73 of the Civil Service Law or Sections 207-a and 207-c of the General Municipal Law.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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