State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 522693 

________________________________

In the Matter of STEVEN M.

MOLLOY,

Petitioner,

v MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as State

Comptroller, et al.,

Respondents.

________________________________

Calendar Date: October 11, 2016

Before: Peters, P.J., Lynch, Devine, Clark and Aarons, JJ.

__________

Lippes Mathias Wexler Friedman LLP, Albany (Thomas D. Latin

of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (William E.

Storrs of counsel), for respondents.

__________

Clark, 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 Comptroller denying

petitioner's application for performance of duty disability

retirement benefits.

Petitioner worked as a correction officer for approximately

71⁄2 years and, during this time, was involved in three workrelated incidents in which he injured his left shoulder. The

first occurred on June 6, 2008 when petitioner was assisting

other correction officers in restraining a combative inmate. The

second incident occurred in August 2009 when petitioner removed a
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package from a shelf while at work and experienced a pop in his

left shoulder. The third incident occurred in November 2010

while petitioner was lifting a 50-pound package. Following the

third incident, petitioner underwent surgeries to repair a labral

tear in his left shoulder, but was never able to return to work

and his employment was ultimately terminated. 

In August 2011, petitioner filed an application for

performance of duty disability retirement benefits pursuant to

Retirement and Social Security Law § 507-b. Following an initial

determination denying his application, petitioner requested a

hearing and redetermination. During further proceedings,

respondent New York State and Local Employees' Retirement System

conceded that petitioner was permanently disabled, and the

parties agreed that the only issue to be resolved was whether the

June 6, 2008 incident was the cause of petitioner's disability. 

The Hearing Officer concluded that it was not, citing the medical

evidence, including the report of Bradley Wiener, a physician who

conducted an independent medical examination of petitioner. 

Respondent Comptroller adopted the Hearing Officer's decision and

denied petitioner's application, and this CPLR article 78

proceeding ensued. 

The burden was on petitioner to establish that his

disability was the "natural and proximate result" of the June 6,

2008 incident (Retirement and Social Security Law § 507-b [a];

see Matter of Palmateer v DiNapoli, 117 AD3d 1228, 1229 [2014],

lv denied 24 NY3d 901 [2014]; Matter of Calhoun v New York State

& Local Employees' Retirement Sys., 112 AD3d 1172, 1173 [2013]). 

Where conflicting medical evidence is presented, the Comptroller

retains the exclusive authority to weigh the evidence and credit

the opinion of one medical expert over that of another, provided

that "the credited expert articulates a rational and fact-based

opinion founded upon a physical examination and review of the

pertinent medical records" (Matter of Calhoun v New York State &

Local Employees' Retirement Sys., 112 AD3d at 1174 [internal

quotation marks and citations omitted]; see Matter of Marello v

DiNapoli, 111 AD3d 1052, 1053 [2013]).

Here, petitioner put forth the opinion of Andrew Beharrie,

an orthopedic surgeon, to establish that his disability was
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causally related to the June 6, 2008 incident and not to the

incidents occurring in August 2009 and November 2010. Beharrie

stated that, when he first examined petitioner in January 2009,

petitioner had been out of work since September 2008 and appeared

to suffer from bursitis and a possible labral tear in the left

shoulder. Beharrie stated that he cleared petitioner to return

to a light duty assignment in April 2009, but indicated that,

following the incidents in August 2009 and November 2010,

petitioner's shoulder condition had significantly worsened,

causing him to miss work and to require surgery. Based upon his

treatment of petitioner, Beharrie stated that the June 6, 2008

incident "started [petitioner's] downward trend in terms of his

symptoms" and "allowed for the subsequent deterioration with

relatively minor trauma." Thus, Beharrie opined that the June 6,

2008 incident was the event that caused petitioner's disability.

The Retirement System presented the contrary medical

opinion of Wiener, who examined petitioner and reviewed his

medical records, as well as other pertinent documentation.

Significantly, Wiener observed that petitioner did not undergo

any medical treatment immediately following the June 6, 2008

incident, that he returned to work in a full-duty capacity,

without any restrictions, the next day and that the employee

accident report did not disclose that petitioner sustained any

injury at the time of his evaluation at the facility health

center (see Matter of Ashley v DiNapoli, 97 AD3d 1057, 1059

[2012]). In view of this, and based upon his physical

examination, Wiener opined that the June 6, 2008 incident was not

the cause of petitioner's permanent disability, but that

petitioner's need for surgical intervention was due to the two

subsequent incidents that occurred in August 2009 and November

2010. Wiener's opinion was consistent with the reports submitted

by two other physicians who examined petitioner in connection

with his claim for workers' compensation benefits.

Despite petitioner's claim to the contrary, we find that

Wiener provided a rational, fact-based medical opinion supported

by his physical examination of petitioner, as well as

documentation in the record, and that the Comptroller was

entitled to rely upon Wiener's medical opinion in determining

that the June 6, 2008 incident was not the cause of petitioner's
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disability (see Matter of Ortiz v DiNapoli, 98 AD3d 1224, 1225

[2012]; Matter of Ashley v DiNapoli, 97 AD3d at 1059; compare

Matter of King v DiNapoli, 75 AD3d 793, 794-795 [2010]). Given

that substantial evidence supports the determination, we find no

reason to disturb it.

Peters, P.J., Lynch, Devine and Aarons, JJ., concur.

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court