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Wednesday, December 09, 2015

Where there is conflicting medical evidence Retirement System may rely on its expert’s opinion when such opinion is supported by substantial evidence


Where there is conflicting medical evidence Retirement System may rely on its expert’s opinion when such opinion is supported by substantial evidence 
Gonzalez v DiNapoli, 2015 NY Slip Op 08491, Appellate Division, Third Department

New York State and Local Police and Fire Retirement System [NYSLPFRS] denied Michael Gonzalez’s application for performance of duty disability retirement benefits.*

Gonzalez, a police officer, was diagnosed with coronary artery disease and underwent triple bypass surgery in 2010. After his application was denied by NYSLPFRS Gonzalez requested a hearing and redetermination. At the subsequent hearing, NYSLPFRS conceded that Gonzalez's heart disease was causally related to his employment pursuant to the statutory presumption set out in §363-a of the Retirement and Social Security Law, but challenged his claim that he was permanently disabled from performing his job duties.

The Hearing Officer found, among other things, that Gonzalez had failed to demonstrate that he was permanently disabled. After NYSLPFRS adopted the findings and conclusions of the Hearing Officer and denied Gonzalez’s application, he initiated a CPLR Article 78 proceeding seeking a court order vacating NYSLPFRS’ decision. 
The Appellate Division affirmed NYSLPFRS’ ruling, explaining that "In connection with any application for . . . performance of duty disability retirement benefits, the applicant bears the burden of proving that he or she is permanently incapacitated from the performance of his or her job duties."

Moreover, respondent "is vested with the authority to resolve conflicts in the medical evidence and to credit the opinion of one expert over another, and its determination will not be disturbed when supported by substantial evidence."

Gonzalez had presented the report of his treating cardiologist, Dr. Kenneth Kaplan, who opined that Gonzales should not return to his usual police duties due to the stress involved in the job and that petitioner was permanently disabled.

In contrast, NYSLPFRS presented the report and testimony of cardiologist Dr. Sydney Mehl, who had examined Gonzalez and reviewed his medical records at NYSLPFRS’ request. Dr. Mehl opined that Gonzalez was not permanently incapacitated from performing his job duties, including running and physical altercations based on the successful outcome of his by-pass surgery, normal results from his cardiac examination and an electrocardiogram and Gonzalez’s report of having a "good" cardiac stress test.

While Gonzalez had challenged Dr. Mehl's opinion on the ground that Dr. Mehl did not include a list of the records he had reviewed in forming the opinion, Dr. Mehl had testified that he had reviewed all the records sent to him, including Gonzalez's job duties.

The Appellate Division said that notwithstanding the evidence in the record that would support a contrary result, insofar as Dr. Mehl's opinion was rational, fact-based and founded upon a physical examination of Gonzalez and a review of the relevant medical records, NYSLPRS’ determination was supported by substantial evidence and “it will not be disturbed.”

* Gonzalez had also filed an application for accidental disability retirement contending that he was permanently disabled due an accident that occurred on August 12, 2010 while performing his job duties. A hearing addressing his application for accidental disability retirement was conducted with Gonzalez's performance of duty disability retirement application hearing. Gonzalez's application for accidental disability retirement was denied. The court said that as Gonzalez had not addressed the denial of his accidental disability application in his appeal brief, it was deemed abandoned.

The decision is posted on the Internet at:

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/

Challenging Adverse Personnel Decisions 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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