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October 06, 2017

An individual is not deemed permanently disabled if undergoing a reasonably safe surgical procedure would permit the individual to perform the duties of his or her position


An individual is not deemed permanently disabled if undergoing a reasonably safe surgical procedure would permit the individual to perform the duties of his or her position
2017 NY Slip Op 07026, Appellate Division, Third Department

The New York State Comptroller denied Petitioner's applications for both accidental and performance of duty disability retirement benefits relying on the opinion of his medical expert, an orthopedic surgeon with respect to Petitioner's ability to perform the duties of his position.  Petitioner then filed an Article 78 action seeking a court order vacating the Comptroller's decision.

The Comptroller's expert had stated that although Petitioner "was currently disabled from performing his job duties as a police officer," the expert also opined that Petitioner had not suffered a permanent disability and further stated that were Petitioner to undergo "a reasonably safe surgical procedure" there was a significant likelihood that Petitioner would regain strength, stability and function so as to allow him to perform the duties of his position, "including being able to carry and discharge a firearm and a pepper spray canister, use a baton and handcuffs and make arrests."

The Petitioner's treating orthopedic surgeon, however, had opined that Petitioner was permanently disabled from performing his job duties and although the procedure suggested by the Comptroller's medical expert was a safe procedure, he would not recommend Petitioner undergo such surgery because, in his opinion, it would not result in Petitioner being able to perform his duties as a police officer.

The Appellate Division affirmed the Comptroller's determination, explaining that "An applicant for accidental disability retirement benefits [and performance of duty disability retirement benefits] bears the burden of proving that he or she is permanently incapacitated from performing his or her job duties" and that here the record indicated that the Comptroller "considered Petitioner's actual job duties in determining whether he was permanently disabled."

Citing Matter of Dingee v DiNapoli, 56 AD3d 876, the Appellate Division observed that "[i]n determining whether a person is permanently disabled, [the Comptroller] may consider whether proper medical treatment is reasonably and safely available to correct the disability." Further, the Appellate Division said that it was not free to substitute its assessment of the medical evidence for that of the Comptroller, "whose determinations must be upheld when they are supported by substantial evidence."

Further, the court noted that "The Comptroller has the exclusive authority to resolve conflicting medical evidence and to credit one expert's opinion over another."

As the Comptroller's expert's was of the opinion that there was a significant likelihood that further medical treatment would alleviate Petitioner's disability was rationally based upon his examination of Petitioner and a review of Petitioner's medical records, the Appellate Division ruled that "the Comptroller's determination that Petitioner did not meet his burden of proving a permanent incapacity from performing his job duties is supported by substantial evidence and will not be disturbed."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_07026.htm

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