New York Public Personnel Law: Crediting expert testimony

November 04, 2011

Crediting expert testimony

Crediting expert testimony

Vassello v McCall, App. Div., 296 A.D.2d 815

Firefighter Paul N. Vassello, claimed that he sustained injuries when he fell while descending from a fire truck in August 1998. He filed an application for performance of duty disability retirement benefits and, one month later, his employer filed an employer application for ordinary disability retirement benefits on his behalf.

The New York State Employees' Retirement System [ERS] rejected both applications. Vassello appealed but the ERS Hearing Officer upheld the Department's administrative denial of both applications, finding that Vassello was not permanently incapacitated from the performance of his duties as a firefighter. The Comptroller adopted the Hearing Officer's findings and Vassello filed an Article 78 action challenging the Comptroller's decision.

One of the points made by the Appellate Division was that the Hearing Officer considered the competing medical opinions offered by the experts testifying on behalf of Vassello and on behalf of ERS and resolved the conflict in favor of ERS. The court said that the Comptroller, in adopting the Hearing Officer's findings, was free to credit the testimony of one medical expert over that of another, citing Meegan v New York State Retirement System, 285 AD2d 892.

In the words of the court, if "the testimony offered by the Retirement System's expert constitutes substantial evidence to support [the Comptroller’s] determination, it will not be disturbed."

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.