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Kaiser v. McCall11/13/2003
n reading such films. We cannot agree. As a starting point, despite a lack of formal training in radiology, we cannot say, given Tucker's occupation and experience, that he was unqualified to read petitioner's MRI studies (see Price v New York City Hous. Auth., 92 NY2d 553, 559 ; Matter of Lampidis v Mills, 305 AD2d 876, 878-879 ). Moreover, even accepting petitioner's claim that there was evidence of a bulging disk at the L5-S1 level on the 1992 MRI films, petitioner's treating physician, Michael Resnick, conceded that he treated petitioner for a degenerative disk at the L5-S1 level in 1989, which could have resulted from "aging, wear and tear," and that the herniated disk noted at that location on the 1996 MRI study could have been a continuation of that process. Thus, although Resnick insisted that the herniated disk at the L5-S1 level was the result of petitioner's 1992 accident, he could not rule out the possibility that such finding was the product of a process that began years earlier. Under such circumstances, there is no basis for the wholesale rejection of Tucker's testimony, and respondent was free to credit Tucker's testimony over that offered by petitioner's physician (see Matter of Proia v McCall, 306 AD2d 735 ).
With regard to the injury to petitioner's cervical spine, Tucker noted the presence of "a small herniated disk at the C5-6 level * * * slightly to the right of the midline with minimal compression on the spinal cord." As petitioner's complaints of tingling and numbness in the fingertips were primarily on the left side, Tucker opined that the positive finding on the MRI did not correlate with petitioner's actual symptoms and, therefore, the injury to petitioner's cervical spine did not permanently incapacitate him from the performance of his duties. Although petitioner's physician offered a contrary opinion, that presented factual and credibility issues for respondent to resolve. Petitioner's remaining contentions, including his claim that he was denied due process, have been examined and found to be lacking in merit.
Cardona, P.J., Mugglin, Rose and Kane, JJ., concur.
(*4)
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
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