Arnold v. McCall

259 A.D.2d 830, 686 N.Y.S.2d 204, 22 Employee Benefits Cas. (BNA) 2931, 1999 N.Y. App. Div. LEXIS 2095

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 1999
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which denied petitioner’s request for accidental disability retirement benefits.

Petitioner, a mental hygiene therapy aide, applied for accidental disability retirement benefits in November 1993 based upon injuries she sustained as a result of a 1984 incident wherein she slipped and fell while mopping a flooded bathroom floor at work. Following a hearing at which petitioner chose to rely solely upon medical records, respondent denied petitioner’s application on the ground that she failed to sustain her burden of proving that she was permanently incapacitated as a result of the 1984 incident. Petitioner thereafter commenced this CPLR article 78 proceeding challenging the determination and we confirm.

Martin Lehman, an orthopedic surgeon, examined petitioner on behalf of the State and Local Employees’ Retirement System. Lehman opined that petitioner was not permanently incapacitated from the performance of her duties due to the 1984 incident nor were her subjective complaints of pain related thereto, especially given that she had returned to full-duty work until 1992. While petitioner’s expert expressed a contrary opinion, respondent is free to accept one expert’s opinion over that of another (see, Matter of Senecal v McCall, 252 AD2d 630, 631; Matter of Torres v New York State Comptroller, 192 AD2d 861, 862). Although petitioner contends that Lehman did not consider a 1990 CAT scan revealing a bulging disc at L4-L5, there is no basis to determine whether the bulging disc was a result of the 1984 incident or one of the numerous accidents that petitioner sustained subsequent to 1984. Petitioner’s remaining contentions have been reviewed and found to be without merit.

Mercure, J. P., Crew III, Yesawich Jr., Carpinello and Graffeo, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.