Petitioner, a teacher's aide responsible for supervising special needs children in various activities for a school district, was involved in an incident in which two students reportedly "collided with her" and she suffered injuries as a result. Petitioner returned to work approximately one year later, without restrictions.
About one month later, students again ran into Petitioner causing her to fall and sustain injuries.
Petitioner did not return to work and applied for disability retirement benefits pursuant to Retirement and Social Security Law §605. Petitioner alleged she was permanently incapacitated from performing her job duties due to the two incidents and residual problems after back surgery. Petitioner's application was denied by the Retirement System on the it finding that she was not permanently incapacitated from the performance of her job duties following a hearing at which conflicting medical opinions were offered.
The Appellate Division confirm the Comptroller's decision denying Petitioner's application for disability retirement benefits, noting to be entitled to disability retirement benefits, the applicant had the burden of proving the injured party is "physically ... incapacitated for the performance of gainful employment, and that [the applicant] was so incapacitated at the time [the applicant] ceased [performing the duties of the position]" and "ought to be retired for disability"*.
In finding that Petitioner was not permanently incapacitated from performing the duties of the teacher's aide position, the Hearing Officer and Comptroller credited the opinion of the orthopedic surgeon who examined applicant on behalf of the New York State and Local Employees' Retirement System. In contrast, Petitioner treating neurologist concluded that the surgery had been unsuccessful and that Petitioner was permanently incapacitated from performing the duties of the position as a result of the incidents.
The Comptroller credited the opinion of the Retirement System's orthopedist, which he found to be rational and fact-based, over that of Petitioner's treating neurologist, explaining in detail the reasons for that credibility determination.
Notably, the Appellate Division said the record indicated "Petitioner's treating neurologist conceded that he had not reviewed Petitioner's job description, relying on her account," while the Retirement System's orthopedist took into consideration a detailed description of her job duties, which did not support her testimony that she was required to break up fights, chase students or move furniture.
Further, the Appellate Division's decision notes the Comptroller "properly considered and relied upon" the medical testimony of Petitioner's treatment providers recommending that she have a second lumbar surgery, which was considered reasonably safe, to alleviate the pain in her lower back and left leg and that Petitioner had refused to undergo such surgery, the first surgery having "been difficult".**
Citing DeFazio v DiNapoli, 211 AD3d at 1255, the Appellate Division opined "Where, as here, there is conflicting medical evidence, [the Comptroller] is vested with the exclusive authority to weigh such evidence and credit the opinion of one medical expert over another".
The court concluded the Comptroller's decision was "based upon physical examinations and review of relevant medical records and test results" and that the Petitioner failed to meet her burden of proof of establishing that she was "permanently incapacitated from her teacher's aide job duties", which determination "was supported by substantial evidence and will not be disturbed".
* See Matter of DeFazio v DiNapoli, 211 AD3d 1254, and Matter of Frederick v New York State Comptroller, 204 AD3d 1292.
** See Matter of Pirrone v Town of Wallkill, 6 AD3d 447, in which the Appellate Division addressed the recommendation of a hearing officer's finding that the individual was required to undergo spinal fusion surgery or forfeit General Municipal Law §207-c disability retirement benefits.
Click HERE to access the Appellate Division's decision posted on the Internet.
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