Sullivan v. Board of Trustees of New York Fire Department Article 1-B Pension Fund

42 A.D.2d 541, 345 N.Y.S.2d 9, 1973 N.Y. App. Div. LEXIS 4130

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 1973
• Status: Published

Opinion

Judgment, Supreme Court, New York County, entered December 15, 1972, unanimously reversed, on the law, and vacated, and the matter remanded to respondent for further findings in accord with this memorandum, without costs and without disbursements. Petitioner, a fireman, sought retirement for accident disability. His disability is not in dispute but the cause of it is. Petitioner claims it is due to a heart condition. Coneededly if that is the cause of petitioner’s condition there is a rebuttable presumption that it was of accidental origin (General Municipal Law, § 207-k). Petitioner has been extensively examined, with medical conclusions ranging all the way from arteriosclerotic coronary artery disease to no physical disability at all. The final determination reached on November 18, 1971, was that petitioner was not suffering from any organic heart disease but from a neurosis, and his retirement was directed. The court does not make a medical determination and if there is substantial medical evidence to support the board’s determination, evidence to the contrary cannot be considered. We therefore accept the board’s finding. However, the finding does not meet petitioner’s application (which was to be retired for an accidental injury suffered in line of duty) unless it be concluded that a disabling neurosis cannot be the consequence of an accident suffered in line of duty. The matter is remanded to the board for further findings in that respect. Concur — Stevens, P. J., Markewich, Kupferman, Steuer and Macken, JJ.