City of Schenectady ex rel. Coker v. McCall

245 A.D.2d 708, 666 N.Y.S.2d 754, 1997 N.Y. App. Div. LEXIS 12946

Opinions

Cardona, P. J.

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 applications for accidental disability retirement benefits and performance of duty disability retirement benefits for Kevin J. Coker.

In June 1992, petitioner applied for accidental and performance of duty disability retirement benefits on behalf of its employee, Kevin J. Coker, based upon injuries Coker allegedly sustained to his neck and back during the course of his duties as a police officer. The applications were disapproved upon a finding that Coker was not permanently incapacitated for the performance of his duties. A timely request for a hearing and redetermination of the disapprovals was made. At the hearing it was revealed that Coker sustained injuries in at least four separate occupational accidents over a four-year period that involved injuries to his neck and back.

Footnotes

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* Coker returned to work after each injury following a brief recovery period and did not cease working entirely until 1992, when he claimed that the back pain resulting from the accidents permanently incapacitated him. Following the hearing, the Hearing Officer determined that Coker was not permanently disabled and respondent upheld that finding. This CPLR article 78 proceeding followed.

There is substantial evidence in the record to support respondent’s determination that petitioner failed to sustain his burden of proving that he is permanently incapacitated from performing his duties as a police officer (see, Matter of Achatz v New York State & Local Police & Fire Retirement. Sys., 239 AD2d 857; Matter of Ferguson v McCall, 228 AD2d 1002; Matter of Longendyke v Regan, 195 AD2d 695, 696). The uncontroverted medical proof offered at the hearing established that, at the time of the claim for disability retirement benefits, Coker suffered from a mild degenerative disc disease and mild disc bulging. Thus, in the absence of a dispute over causation, the only issue to resolve was whether Coker’s medically documented spine degeneration permanently disabled him from his employment.

Notably, Coker testified that he experienced continuing neck and lower back pain and limited range of motion following his various occupational injuries. In support of Coker’s complaints of pain, petitioner offered the testimony of an orthopedic surgeon, Anthony Guidarelli, who treated Coker in connection with all four incidents beginning in 1985. Guidarelli initially diagnosed Coker as having sustained soft-tissue back injuries, namely cervical and lumbar strain. Concluding that Coker’s injuries were primarily muscular, Guidarelli recommended heat and physical therapy treatment for several years until X rays and magnetic resonance imaging (MRI) revealed that Coker was developing mild degenerative disc disease of the cervical spine. Coker continued to complain of pain and, suspecting that he might be suffering from a nerve root injury, Guidarelli referred him to neurologist Philip Marra. However, the examination and tests which Marra performed revealed no evidence of nerve root impingement or other neurological injury. Nevertheless, Guidarelli, taking into consideration, inter alia, Coker’s objectively documented degenerative spine changes, testified that Coker was disabled from an orthopedic point of view and permanently disabled from resuming his employment duties.

Along with Guidarelli, petitioner presented, inter alia, testimony from Dominic Belmonte, an occupational physician, who testified that Coker was permanently disabled from performing his job duties even though an objective neurological explanation for his pain was lacking. Neurologist Neil Lava, who testified on behalf of the New York State and Local Policemen’s and Firemen’s Retirement System, performed a complete neurological examination of Coker in 1993. Lava found no evidence of nerve root impingement, spinal cord compression or other neurological explanation for Coker’s complaints of pain and limited range of motion.

It was within respondent’s exclusive authority to evaluate the medical evidence and the credibility of witnesses, and to make a rational decision to reject the opinion of one medical expert over another (see, Matter of Cole v McCall, 231 AD2d 775; Matter of Arimento v McCall, 211 AD2d 958, 960). Although petitioner challenges respondent’s view that the opinions of petitioner’s experts were based largely upon Coker’s subjective complaints of pain, the medical testimony which respondent credited provided support for the finding that Coker was not permanently disabled from performing his employment duties (see, Matter of Hamlet v McCall, 222 AD2d 883).

We do not agree with petitioner’s argument that because Guidarelli, an orthopedist, was an expert in a different medical discipline than the expert neurologists, respondent was required to adopt his opinion that Coker was disabled. In our view, respondent still had the responsibility to determine whether Coker had a condition that disabled him from his employment based on an evaluation of all the medical testimony (see, e.g., Matter of Harvey v McCall, 237 AD2d 863, 863-864; Matter of Orsini v McCall, 221 AD2d 690, 691; Matter of Leone v Regan, 146 AD2d 869). Therefore, respondent had the discretion to limit the weight given to the expert opinion of Guidarelli and Belmonte and accept the opinion of Lava given respondent’s finding that Coker’s subjective complaints of pain were not credible and the apparent reliance given to these complaints by the orthopedist and the occupational physician (see, Matter of Malacynski v McCall, 221 AD2d 764, 764-765). Given the record as a whole, we conclude that the challenged determination is supported by substantial evidence, even though there is other evidence that would support a contrary result (see, Matter of Spencer v New York State & Local Employees’ Retirement Sys., 220 AD2d 792, 793).

Petitioner’s remaining arguments have been examined and found to be without merit. Contrary to petitioner’s argument, respondent’s findings of fact were sufficient to permit “adequate judicial review following the determination” (Matter of Simpson v Wolansky, 38 NY2d 391, 396). Moreover, Coker was not deprived of a full and fair hearing by virtue of the Hearing Officer’s denial of petitioner’s request to call neurologist Daniel Silverman as an expert rebuttal witness. Since petitioner, presumably for tactical reasons (see, Matter of Kinlock v New York State & Local Employees’ Retirement Sys., 237 AD2d 810), chose not to take advantage of the opportunity to call Silver-man on its direct case (see, 2 NYCRR 317.4 [a]), the denial of its request to call Silverman as a rebuttal witness was not an abuse of the Hearing’s Officer’s discretion.

Mercure, Casey and Peters, JJ., concur.

Petitioner had initially claimed benefits in connection with approximately 15 separate accidents, but only attempted to prove six of those accidents in this proceeding. However, Coker could only recall the details of four of these accidents; the first in April 1985, when he was run off the road by a fleeing suspect and drove into a parked car; the next in December 1987, when a gang of individuals beat him with baseball bats during an arrest attempt; a February 1989 incident when a suspect kicked him down a flight of stairs; and, finally, a March 1989 incident in which his vehicle was struck from behind during a high-speed chase.