Cassidy v. Ward ( 1991 )

Order and judgment (one paper), Supreme Court, New York County (Michael J. Dontzin, J.), entered February 27, 1990, which denied and dismissed the petition brought pursuant to CPLR article 78, seeking, inter alia, to annul a determination by respondent to deny petitioner line-of-duty accident disability retirement, unanimously affirmed, without costs.

Petitioner, a police officer, injured his back in the line of duty in accidents on March 31, 1977 and December 15, 1982. Petitioner sought accidental disability retirement benefits. On November 21, 1985, the Medical Board found no disability. The matter was reconsidered, with the Medical Board now finding that petitioner was indeed permanently disabled, but not as a result of his line-of-duty accidents.

On October 3, 1986, petitioner again injured his back. The Medical Board subsequently twice examined petitioner, and now found no disability at all. On March 8, 1989, the Board of Trustees denied petitioner’s application.

We are satisfied that the various objective tests undertaken by petitioner, including a CT scan and MRI, did not conclusively establish a disability, and that ultimately the question turned on the resolution of a dispute between the opinions of medical experts, which was for the Medical Board to resolve. (Matter of Scotto v Board of Trustees, 76 AD2d 774, affd 54 NY2d 918.)

While we are not unaware of the inconsistency between the Medical Board’s latest findings and the May 1986 finding of the Medical Board that petitioner was disabled, we are satisfied under the circumstances presented that the inconsistency is attributable to physical symptoms found by the Medical Board to be present at the earlier, but not the later physical examinations. Consequently, we are unable to conclude that the determination lacked a rational basis. Concur—Carro, J. P., Ellerin, Ross, Asch and Kassal, JJ.