Higgins v. McCall ( 2001 )

—Crew III, J. P.

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 accidental disability retirement benefits.

Petitioner, a fire captain, applied for accidental disability retirement benefits based upon back and knee injuries sustained in two work-related accidents. Upon finding that petitioner was not permanently incapacitated from the performance of his duties as a fire captain, respondent denied the application. Petitioner thereafter commenced this CPLR article 78 proceeding to review the determination, contending that respondent erred in relying upon the opinion of the orthopedic expert for the State and Local Employees’ Retirement System instead of the opinions of petitioner’s treating physicians. We disagree.

Where, as here, the Retirement System’s expert provides an “articulated, rational and fact-based medical opinion,” founded upon a physical examination and review of relevant medical reports and records, the expert’s opinion generally will not be considered “so lacking in foundation or rationality as to preclude respondent from exercising the authority to evaluate conflicting medical opinions” (Matter of Harper v McCall, 277 AD2d 589, 590). Petitioner’s criticisms of the expert’s opinion do not demonstrate an irreconcilable conflict with undisputed evidence that would deprive the opinion of probative value but, rather, are based upon the type of inconsistencies and other alleged deficiencies that present a question of credibility for respondent to resolve (compare, id., with Matter of Nopper v McCall, 222 AD2d 884; see, Matter of Silverhardt v State of New York, 269 AD2d 652). As our review of the record discloses no basis upon which to disturb respondent’s determination, it must be confirmed.

Peters, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.