Jetter 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 Comptroller which denied petitioner’s application for disability retirement benefits. Petitioner was employed as an investigator for the State Police when he injured his back while lifting his brief case from the trunk of a car. His subsequent application for disability retirement benefits was denied on the ground that he was not permanently incapacitated from performing his duties. Substantial evidence supports that determination. The orthopedist, called as an expert witness on behalf of respondent State Police and Fire Retirement System, testified that while petitioner suffered from herniated discs and other back ailments, he was still capable of performing all the duties of a police officer. While petitioner presented countervailing testimony from two physicians, it lies within respondent Comptroller’s authority to evaluate conflicting medical evidence and to accept the opinion of one expert medical witness over that of another, (see, Matter of Flannery v McCall, 219 AD2d 770; Matter of Catalano v New York State Comptroller, 198 AD2d 662, 663).. Casey, Yesawich Jr. and Carpinello, JJ., concur.