Longendyke v. Regan

Jul 1, 1993
Versions:195 A.D.2d 695
599 N.Y.S.2d 728
1993 N.Y. App. Div. LEXIS 6912

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 applications *696for accidental disability and performance of duty disability retirement benefits.

On February 25, 1987, petitioner, a firefighter, injured his right leg when he fell on some ice while responding to a call. Petitioner was treated at the emergency room and released; he returned to work two weeks later. Four years later, petitioner applied for accidental disability and performance of duty disability retirement benefits alleging that he is currently disabled as a result of the 1987 incident. It is not disputed that petitioner is incapacitated for the performance of his duty as a firefighter. The determinative issue here is whether the disability is the natural and proximate result of the 1987 incident.

The burden was on petitioner to prove that the disability was causally related to the fall (see, Matter of Caltabiano v New York State Empls. Retirement Sys., 135 AD2d 113, 114). Although evidence existed to support a finding of a causal relationship between the disability and the February 25, 1987 incident, there is also medical evidence in the record to support a contrary conclusion. It is within respondent’s exclusive authority to evaluate conflicting medical evidence (see, Matter of Huether v Regan, 169 AD2d 907, 909, lv denied 77 NY2d 808; Matter of Ramseur v Regan, 154 AD2d 869, 870) and he is free to credit one physician’s testimony over that of another (see, Matter of Rubinski v New York State & Local Police & Fire Retirement Sys., 156 AD2d 888, 889). Inasmuch as respondent’s determination denying petitioner’s applications is supported by substantial evidence, it must be upheld (see, supra; Matter of McGrath v Regan, 109 AD2d 1007; Matter of Walker v Regan, 97 AD2d 878).

Weiss, P. J., Mikoll, Crew III, Mahoney and Casey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.