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State of New York vs. COVID-19 - Governor Andrew M. Cuomo periodically updates New Yorkers on the state's progress during the ongoing COVID-19 pandemic. The latest reports of the number of new cases, the percentage of tests that were positive and many other relevant data points concerning COVID-19 are available at forward.ny.gov.

N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

June 29, 2012

All relevant medical records must be considered in making a determination regarding an application for accidental disability retirement benefits


All relevant medical records must be considered in making a determination regarding an application for accidental disability retirement benefits
Baird v New York State & Local Retirement Sys., 2012 NY Slip Op 05053, Appellate Division, Third Department

Darlene A. Baird was employed by the Westchester County Department of Social Services. She was injured in the course of performing a physical test during an interview for another position with the Department.

Although Baird returned to work, she left after three days due to pain in her right shoulder and arm. When she subsequently applied for accidental disability retirement benefits, her application was denied based on the Retirement System's expert finding that she was not permanently incapacitated from the performance of her job duties. The Comptroller sustained the hearing officer’s determination and Baird appealed.

The Appellate Division said that the Retirement System's determination relies primarily upon the report of its physician, Dr. Charles Ricciardelli. Based on his examination of Baird, Dr. Ricciardelli concluded that although she had pain in her right upper arm caused by the accident, she was "exaggerating the pain, and had only a mild, partial disability."

However, said the court, the record includes the report of an MRI of Baird's right shoulder taken after Dr. Ricciardelli examined her indicated that Baird had a biceps tendon tear. As the record did not indicate that Dr. Ricciardelli was given the chance to review the right shoulder MRI report; nor did the Retirement System call him to testify, “there is no basis for concluding that his opinion would have remained unchanged in light of the new information contained [in the MRI report].

Although the Comptroller is vested with authority to evaluate conflicting medical opinions and credit the opinion of one expert over that of another, the Appellate Division said that the medical proof relied upon “must articulate a rational, fact-based opinion based upon a physical examination and review of all the relevant medical records.”

Accordingly, the Appellate Division ruled that as Dr.Ricciardelli had not been given the opportunity to clarify his opinion based upon a review of all the relevant medical records, the Comptroller's determination was not supported by substantial evidence and must be annulled and remitted for further proceedings.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05053.htm

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