Murgia v. Regan

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the State Comptroller which denied petitioner’s application for ordinary disability retirement. Petitioner, a member of the New York State Employees’ Retirement System, filed an application for ordinary disability retirement claiming to be permanently disabled from the performance of his duties as an automotive mechanic due to a back injury. He testified at a hearing that he received a severe back injury on June 14,1976 which necessitated hospitalization and absence from work until February, 1977. At that time he returned to light duty and was incapacitated again in October, 1977. At the hearing, Dr. Zaretsky, an orthopedic surgeon, gave his opinion that petitioner suffered from a herniated disc with atrophy of the left knee and calf. As a consequence, Dr. Zaretsky stated that petitioner was disabled and unable to work. Dr. Jerome Block, a neurologist, testified for the retirement system and, after extensive neurological tests, testified that petitioner did not have a neurological disability which would prevent him from performing the duties of an automotive mechanic. Dr. Block also concluded that the one-half inch difference in the circumference of petitioner’s thigh was not abnormal or atrophic. Dr. Arnold, an orthopedic surgeon, testified for the retirement system and after extensive testimony concluded that petitioner had little, if any, neurologic disability or disc pathology. It was his view that petitioner was not permanently disabled. It is well established that when confronted with conflicting medical opinions, the Comptroller has the authority to evaluate the testimony and to accept one expert’s opinion over that of another (Matter of Cohen v Regan, 80 AD2d 703, mot for lv to app den 54 NY2d 605), and that evaluation, absent compelling countervailing factors, must be accepted (Matter of D'Amato v Regan, 81 AD2d 733). Accordingly, since the Comptroller’s conclusion is supported by substantial evidence in the record, the determination denying petitioner’s application for ordinary retirement benefits must be confirmed. Determination confirmed, [898] and petition dismissed, without costs. Mahoney, P. J., Sweeney, Main, Weiss and Levine, JJ., concur.