Cole v. McCall

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review two determinations of respondent which denied petitioner’s applications for ordinary disability retirement benefits and accidental disability retirement benefits. Petitioner was employed as a community residence aide at a developmental center. While caring for a client, she slipped on the floor and injured her back. After a hearing, respondent denied petitioner’s applications for ordinary disability retirement benefits and accidental disability retirement benefits upon finding that petitioner was not permanently incapacitated from the performance of her duties as a community residence aide. Petitioner argues that these determinations are not supported by substantial evidence. Based upon our review of the record, we disagree. Petitioner’s regular physician, Paul Brayer, testified that petitioner suffered from chronic lower back pain secondary to a soft tissue injury. He opined that her soft tissue injury was permanent in nature and that she was totally disabled from performing her duties. This testimony was consistent with that of Honorio Dispo, a rehabilitative specialist who Brayer referred petitioner to for further examination. Craig DuMond, however, an orthopedic surgeon who examined petitioner on behalf of the Retirement System, stated that petitioner did not show any objective signs of back injury. Based on this, he concluded that petitioner did not have a physical disability which incapacitated her from performing her job duties. Since the record contains conflicting medical testimony which was for respondent to evaluate (see, Matter of McGrath [Regan], 109 AD2d 1007), we find that the administrative determina 776 tions denying petitioner’s applications are supported by substantial evidence. Mercure, J. P., White, Casey, Spain and Carpinello, JJ., concur. Adjudged that the determinations are confirmed, without costs, and petition dismissed.