State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 16, 2015 519386 

________________________________

In the Matter of BRADLEY CHASE,

Petitioner,

v

MEMORANDUM AND JUDGMENT

COUNTY OF ALBANY et al.,

Respondents.

________________________________

Calendar Date: February 11, 2015

Before: Peters, P.J., Lahtinen, Garry and Rose, JJ.

__________

Ennio J. Corsi, Counsel 82, AFSCME, AFL-CIO, Albany

(Matthew P. Ryan of counsel), for petitioner.

Thomas Marcelle, County Attorney, Albany (John Maney of

counsel), for respondents.

__________

Lahtinen, J.

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 Albany County Sheriff that,

among other things, petitioner could return to light duty work. 

In March 2010, petitioner, a correction officer at the

Albany County Correctional Facility, sustained a concussion when

he hit his head on a wall while attempting to restrain an inmate. 

He was treated for symptoms attributed to a mild traumatic brain

injury and postconcussive disorder, and he began receiving

benefits pursuant to General Municipal Law § 207-c. In January

2012, respondent Albany County Sheriff offered petitioner the
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opportunity to return to work on light duty status.1 Petitioner

refused, and the parties participated in a hearing in accordance

with negotiated procedures. The Sheriff adopted the Hearing

Officer's recommendation that petitioner be returned to light

duty and ordered petitioner to report as assigned. This

proceeding ensued. 

Our review is limited to assessing whether the Sheriff's

determination was supported by substantial evidence (see Matter

of Brunner v Bertoni, 91 AD3d 1100, 1101 [2012]; Matter of

Martino v County of Albany, 47 AD3d 1052, 1053 [2008]). Two

experts testified at the hearing. Robert McCaffrey, a

neuropsychologist who conducted an independent medical

examination that included a number of neuropsychological tests in

December 2010, opined that petitioner could return to work. 

McCaffrey testified that petitioner had exerted "suboptimal

effort" during the testing, and that he found nothing that would

prohibit petitioner from returning to work based on cognitive and

psychological issues. After a follow-up examination in December

2012, McCaffrey continued to opine that petitioner could return

to work. Petitioner's neuropsychologist, Maria Lifrak, testified

that petitioner displayed deficits in visual and mental

processing, planning, language comprehension, attention,

concentration and memory. She diagnosed him as having, among

other things, postconcussion syndrome. Lifrak opined that

petitioner was not able to work in the proposed light duty

position. 

Petitioner argues that McCaffrey's opinion was based on

unreliable test results and should not have been credited. 

However, McCaffrey did not indicate that the test results were

unreliable, but that the test results showed that petitioner's

claims were unreliable. Although Lifrak did not agree with

McCaffrey, the Hearing Officer was entitled to weigh the

conflicting medical opinions and determine which expert to

credit. Where, as here, that determination is supported by

1 Petitioner would be assigned to a sitting job with no

inmate contact and no lifting, pushing or pulling any objects in

excess of two pounds.
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substantial evidence, it will not be disturbed (see Matter of

Morsman v County of Allegany, 26 AD3d 890, 891 [2006]). 

Peters, P.J., Garry and Rose, JJ., concur.

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court