Sloan v. McCall

—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 registered nurse in a psychiatric hospital in July 1991 when she sustained injuries to her back and neck in the course of an altercation with a patient. She returned to work in April 1992 but resigned in October 1992, asserting that she was incapacitated by pain. Petitioner seeks review of respondent’s determination denying her application for ordinary and accidental disability retirement benefits. 667 Substantial evidence supports respondent’s finding that petitioner was not permanently incapacitated from performing her duties as a registered nurse. The orthopedic surgeon who testified as an expert witness on behalf of the New York State and Local Employees’ Retirement System stated that her examination of petitioner and her review of various diagnostic tests performed upon her, led to the conclusion that petitioner did not sustain a disabling injury and could continue to perform the full duties of a registered nurse. While the testimony given by petitioner’s expert medical witnesses was inconsistent with this opinion, 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 Cole v McCall, 231 AD2d 775; Matter of Curtis v Regan, 203 AD2d 876). Respondent’s determination is accordingly confirmed. Mikoll, J. P., Mercure, Crew III, Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.