Tripi v. Ward

158 A.D.2d 336, 551 N.Y.S.2d 24, 1990 N.Y. App. Div. LEXIS 1358

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 1990
• Status: Published

Opinion

The Board of Trustees of the Police Pension Fund, in adopting the unanimous recommendation of its Medical Board, determined that petitioner had not met his burden of establishing entitlement to either ordinary disability retirement or accidental disability retirement. Indeed, although conflicting medical evidence was submitted by the parties relating to, inter alia, petitioner’s back pain, a second CAT scan of petitioner’s lumbar spine revealed no disc herniation, and a recent June 10, 1988 electrodiagnostic study of his lower extremities, including corresponding lumbosacral para-spinal muscles, showed no abnormalities in either petitioner’s motor or sensory responses. Such credible evidence, which is suggestive of petitioner’s nondisability, supports the Board of Trustees’ determination, which had a rational basis, and was not arbitrary. (See, Matter of Paul v Board of Trustees, 135 AD2d 411; Matter of Manza v Malcolm, 44 AD2d 794.) "There being a conflict in the medical evidence, it was solely within the province of the Medical Board, and the Trustees to resolve such conflict”. (Supra, at 795.) Concur—Murphy, P. J., Sullivan, Ross, Kassal and Smith, JJ.