Opinion
91503
June 20, 2002.
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 which denied petitioner's application for disability retirement benefits.
Drew, Davidoff Edwards, Monticello (Michael Davidoff of counsel), for petitioner.
Eliot Spitzer, Attorney General, Albany (William E. Storrs of counsel), for respondents.
Before: Crew III, J.P., Peters, Spain, Mugglin and Rose, JJ.
MEMORANDUM AND JUDGMENT
Petitioner, a correction officer, filed an application for disability retirement benefits alleging that he developed a disabling arthritic condition. Concluding that petitioner failed to sustain his burden of proving that he was permanently incapacitated from performing his job duties, respondent Comptroller denied the application. This Court subsequently annulled this determination because the Hearing Officer issued a decision prior to receiving petitioner's brief, and the matter was remitted for a de novo determination upon the existing record ( 283 A.D.2d 846). Upon remittal, the application was again denied and petitioner commenced this CPLR article 78 proceeding challenging the determination, contending that the testimony of the neurologist who examined petitioner on behalf of respondent New York State and Local Retirement Systems was insufficient to provide the substantial evidence required to support the determination.
It is fundamental that the Comptroller possesses the authority to resolve conflicts in medical evidence and to credit the opinion of one expert over that of another (see, Matter of Whalen v. McCall, 282 A.D.2d 917, 918), so long as the credited expert provides an "articulated, rational and fact-based opinion, founded upon a physical examination and review of relevant medical reports and records" (Matter of Buczynski v. New York State Local Empls. Retirement Sys., 291 A.D.2d 630, 630).
Gerald Kufner, the Retirement Systems' expert, testified that he had treated patients who complained of rheumatoid arthritis and was familiar with the symptoms and diagnosis of such disorder. He stated that after examining petitioner and reviewing his medical records, he could find no objective evidence of any weakness, atrophy, neurological abnormality, swelling in the joints, limitation of motion in the joints, or of ulnar deviation of the fingers. According to Kufner, petitioner exhibited no signs of rheumatoid arthritis and, in his expert opinion, "there was nothing wrong with him". Although Kufner was not a rheumatologist specializing in the treatment of rheumatoid arthritis, this did not, as petitioner argues, preclude the Comptroller from exercising his authority to evaluate conflicting medical opinions (see, Matter of Harper v. McCall, 277 A.D.2d 589) especially where petitioner's expert based his diagnosis solely upon the subjective symptoms reported by petitioner. Rather, this alleged deficiency merely presented a question of credibility for the Comptroller to resolve (see,Matter of Bull v. McCall, 291 A.D.2d 628; cf., Matter of Wygand v. Regan, 135 A.D.2d 1060).
In our view, Kufner's testimony provided substantial evidence to support the Comptroller's determination denying petitioner's application (see, Matter of Chrysler v. McCall, 292 A.D.2d 700; Matter of Harper v. McCall, supra), despite the existence of evidence which may have supported a contrary result (see, Matter of Russo v. McCall, 293 A.D.2d 912, 740 N.Y.S.2d 525; Matter of Bull v. McCall, supra).
Crew III, J.P., Spain, Mugglin and Rose, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.