McComb v. Regan

Feb 6, 1992
Versions:180 A.D.2d 862
579 N.Y.S.2d 240
1992 N.Y. App. Div. LEXIS 1142

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 performance of duty disability retirement benefits for Arthur Boyd, Jr.

It is undisputed that Arthur Boyd, Jr., on whose behalf *863petitioner commenced this CPLR article 78 proceeding, is incapacitated from performing his duties as a firefighter due to coronary heart disease. The determinative issue in this proceeding is whether Boyd’s incapacity was the result of a disability sustained in service as a firefighter. If there is conflicting medical opinion presented, respondent’s evaluation of such testimony must be accepted (see, Matter of Kubica v New York State Employees’ Retirement Sys., 171 AD2d 917; Matter of Legault v Regan, 105 AD2d 505, 506). Petitioner’s medical expert could not state with any certainty that Boyd’s occupation caused or contributed to his disease. Respondent’s medical expert, however, unequivocally testified that smoke inhalation and other conditions of Boyd’s occupation do not have a "positive correlation” to coronary heart disease. He also opined that emotional and physical stresses of a firefighter do not cause coronary heart disease. In addition, both experts testified that Boyd’s heavy cigarette smoking contributed to his disease. We find that this testimony, coupled with other evidence in the record, provided competent evidence to rebut the "heart presumption” provided in Retirement and Social Security Law § 363-a (1) (see, Matter of Nerney v New York State Policemen’s & Firemen’s Retirement Sys., 156 AD2d 775, Iv denied 75 NY2d 710; see also, Matter of Ashley v New York State Policemen’s & Firemen’s Retirement Sys., 132 AD2d 90, 92).

Weiss, P. J., Levine, Mercure and Mahoney, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.