Petitioner, a police officer, filed separate applications for accidental and performance of duty disability retirement benefits alleging that he was permanently incapacitated from the performance of his duties as the result of injuries suffered while he was a passenger in a police car that struck a deer.
Both applications were denied by the New York State and Local Retirement System [System] based upon a finding that Petitioner was not permanently incapacitated from the performance of his duties. Following a hearing and redetermination, a Hearing Officer sustained the denials and, upon administrative review, the System affirmed the Hearing Officer's decision. Petitioner then commenced the instant CPLR Article 78 proceeding challenging the System's determination.
As an initial procedural matter, the Appellate Division, by majority opinion, indicated it was "unpersuaded by [Petitioner's] argument that the determination is arbitrary and capricious or lacking in substantial evidence insofar as it was based upon the review of an incomplete record that did not include certain outstanding medical records".
The decision, however, noted that "Petitioner's counsel had several opportunities to admit the outstanding medical records into evidence during the administrative hearing and instead relied upon his client's statement that the Retirement System had all of his records" and never moved the medical records into evidence despite ample opportunity to do so, including even after the Retirement System reminded him that such records were not in evidence."
Under the circumstances, the Appellate Division concluded that the Hearing Officer appropriately decided the applications on the record before it, and the System was justified in rendering the final administrative determination based upon such record.
Turning to the merits of the Systems determination, the Appellate Division, citing Matter of Hannon v DiNapoli, 226 AD3d 1122 and other decisions, pointed out that "[i]n connection with any application for accidental or 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".
Further, where, as here, there is conflicting medical evidence, the Appellate Division observed that the System "is vested with the exclusive authority to weigh such evidence and credit the opinion of one medical expert over another", and its review of the System's determination "is limited to ascertaining whether it is supported by substantial evidence".
Although the said that in its view, although there was medical evidence that could support a contrary conclusion, the rational testimony and opinion of a witness based upon his examination of Petitioner and review of Petitioner's medical records provides substantial evidence to support the determination that Petitioner was not permanently incapacitated from performing his job duties and the System was free to credit that witnesses' opinion over that of Ppetitioner's treating physician.
Accordingly, the majority said it found "no reason to disturb [the System's] determination denying [Petitioner's] applications for accidental and performance of duty disability retirement benefits".
Garry, P.J., dissenting, Mackey, J. concurring in the dissent, said "We do not disagree that the Hearing Officer acted well within his authority at every stage of these proceedings, nor that [Petitioner's] counsel bears primary responsibility for the state of the record. However, arbitrary and capricious review is not concerned with fault. The inquiry is whether the administrative entity's ultimate determination was rational — that is, whether it was made with a sound basis in reason and with due regard to the relevant facts (see generally Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). Here, [the System] rendered a final merits determination while fully aware that extensive, post-application surgical records — directly bearing on several sites of injury — existed, had been repeatedly referenced in this proceeding, were in the possession of the New York State and Local Retirement System and had never been evaluated. Put another way, the determination being upheld here is not arbitrary because the Hearing Officer acted inappropriately; it is arbitrary because the ultimate question of permanent incapacity was resolved on a record that was universally understood to not reflect the facts and underlying medical reality of [Petitioner's] conditions. In light of these foundational concerns as to the substantive reliability of the determination before us, albeit resulting from counsel's abysmal performance with respect to the outstanding records, we respectfully dissent".
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