Senecal v. McCall

252 A.D.2d 630, 675 N.Y.S.2d 225, 1998 N.Y. App. Div. LEXIS 8041

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 2, 1998
• Status: Published

Opinion

—Yesawich Jr., 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 application for ordinary and accidental disability retirement benefits.

Petitioner was employed as a mental hygiene therapy aide at a psychiatric hospital where she cared for geriatric patients. She was injured when she slipped on a wet floor, fracturing her right hip. Petitioner’s subsequent applications for both accidental and ordinary disability retirement benefits were denied on the ground that she had failed to prove that she was permanently incapacitated from performing her previous employment-related duties. Substantial evidence supports this determination. The orthopedic surgeon who testified as an expert witness on behalf of the New York State and Local Employees’ Retirement System stated that his physical examination of petitioner, together with his review of various diagnostic test results, led him to conclude that she did not sustain a permanently disabling injury and that any continuing degenerative changes could be attributed to petitioner’s age, obesity and diabetes. While petitioner presented countervailing evidence, including the testimony of her chiropractor, it lies within respondent’s authority to evaluate conflicting medical evidence and to accept the opinion of one expert medical witness over that of another (see, Matter of Sloan v McCall, 238 AD2d 666; Matter of Cole v McCall, 231 AD2d 775).

Cardona, P. J., Crew III, Spain and Graffeo, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.