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Kaiser v. McCall11/13/2003
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
MEMORANDUM AND JUDGMENT
Calendar Date: September 4, 2003
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 applications for accidental and performance of duty disability retirement benefits.
In May 1995, petitioner, previously employed as a police sergeant for the Town of Ramapo in Rockland County, applied for accidental and performance of duty disability retirement benefits based upon injuries to his lumbar and cervical spine allegedly sustained in November 1992. Such applications initially were (*2)denied based upon a finding that petitioner was not permanently incapacitated from the performance of his duties. Shortly thereafter, and based upon review of a subsequent MRI study, David Tucker, the orthopedic surgeon testifying on behalf of the Retirement System, concluded that petitioner indeed had a herniated disk at the L5-S1 level and, therefore, was permanently incapacitated from the performance of his duties as a police sergeant. Tucker, however, was of the view that, inasmuch as this finding did not appear on the MRI studies taken shortly after petitioner sustained his injuries, the herniated disk observed could not be causally related to the 1992 accident. Petitioner's applications again were denied, and petitioner sought review of respondent's determination via this CPLR article 78 proceeding.
Upon review, this Court annulled respondent's determination based upon a violation of State Administrative Procedure Act ยง 307 (2) and remitted the matter to respondent for a de novo determination based upon the existing record (262 AD2d 920 ). Respondent thereafter denied petitioner's applications but, upon subsequent review to this Court, we again annulled the underlying determination, finding that respondent had focused exclusively upon the causal relationship between the injury to petitioner's lumbar spine and the November 1992 incident and neglected to consider the relationship, if any, between the injury to petitioner's cervical spine and the November 1992 incident (287 AD2d 930 ). Upon remittal, the Hearing Officer concluded that petitioner was not permanently incapacitated as a result of the injury to his cervical spine and that petitioner's disabling lumbar injury was not causally related to the November 1992 incident. As a result, respondent denied petitioner's applications yet again, triggering another round of review in this Court.
The crux of petitioner's argument on review is that respondent erred in crediting Tucker's testimony regarding the nature and extent of petitioner's injuries. In this regard, Tucker opined that, based upon his review of petitioner's 1992 MRI studies, petitioner had a narrowing of the disk space at the L4-5 level. Such finding, according to Tucker, did not correlate with the symptoms that petitioner experienced at the S1 level, where Tucker observed no pathology on the MRI study. Although Tucker noted a herniated disk at the L5-S1 level on the 1996 MRI study and agreed that such finding would permanently incapacitate petitioner from the performance of his duties, he concluded that (*3)this disabling condition was not causally related to the November 1992 incident because there was no indication of any pathology at the L5-S1 level on the 1992 MRI studies.
In response, petitioner contends that there indeed was evidence of a bulging disk at the L5-S1 level on the 1992 MRI study and that Tucker failed to see it due to his lack of training i
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