quested a hearing and redetermination. At the conclusion thereof, the Hearing Officer found that petitioner failed to establish that he was permanently incapacitated from the performance of his duties and upheld the denial of his application for benefits. Respondent, in turn, adopted the Hearing Officer's findings and recommendation, prompting petitioner to commence this CPLR article 78 proceeding to challenge respondent's determination.During the course of the administrative hearing, the parties stipulated that the March 26, 2010 incident constituted an accident within the meaning of the Retirement and Social Security Law ยง 363 ; hence, the issue distilled to whether petitioner established that he was permanently incapacitated from performing his job duties (see Matter of Anderson v. DiNapoli, 126 A.D.3d 1278, 1278, 6 N.Y.S.3d 189 [2015] ; Matter of Cepeda v. New York State Comptroller, 115 A.D.3d 1146, 1146, 982 N.Y.S.2d 606 [2014], lv. denied 23 N.Y.3d 906, 2014 WL 2922199 [2014] ; Matter of Mullins v. New York State Comptroller, 49 A.D.3d 951, 951โ952, 853 N.Y.S.2d 216 [2008] ). Where, as here, the applicant "has been assigned to light, limited or restricted duties for less than two years prior to the date [upon which the] application for disability retirement benefits was filed with [respondent,] ... the issue of permanent incapacity [shall be determined] on the basis of the duties and job requirements of such previous full duty assignment" (2 NYCRR 364.3 [a]; see Matter of PerezโDunham v. McCall, 279 A.D.2d 884, 885, 719 N.Y.S.2d 382 [2001] ). In this regard, petitioner testifiedโwithout contradictionโthat he never returned to full-duty status as a lieutenant during the less than one year that elapsed between the date of his return to work and the date upon which he applied for accidental disability retirement benefits.
Here, both Foster and Danyliw recommended surgery to alleviate petitioner's condition and Mazella ultimately concluded that the surgical procedure recommended was safe and would correct petitioner's disability. Accordingly, substantial evidence supports respondent's determination that petitioner failed to establish that he was permanently disabled because a safe surgical procedure exists that could alleviate his disability ( see Matter of Hulse v DiNapoli, 70 AD3d 1235, 1237; Matter of Mullins v New York State Comptroller, 49 AD3d 951, 952). The Retirement System also presented the report of orthopedic surgeon Mary Godesky. Godesky noted that petitioner had declined having the recommended surgery due to a lack of guaranteed success.
Respondent has exclusive "authority to resolve conflicts in medical opinion and to credit the testimony of one expert over that of another" ( Matter of Schine v Hevesi, 40 AD3d 1362, 1363 [citation omitted]; see Matter of Capparella v McCall, 7 AD3d 875, 876). As Mazella's medical opinion was rationally based upon an examination of petitioner and his medical records, substantial evidence supports respondent's determination that petitioner failed to establish that he was permanently incapacitated because a reasonably safe surgical procedure exists that could resolve his shoulder disability, despite evidence in the record that might support a contrary result ( see Matter of Mullins v New York State Comptroller, 49 AD3d 951, 952; Matter of Quigley v Hevesi, 48 AD3d 1023, 1025; Matter of Beckley v New York State Local Retirement Sys., 43 AD3d 1267, 1268-1269; Matter of Schine v Hevesi, 40 AD3d at 1363-1364). Adjudged that the determination is confirmed, without costs, and petition dismissed.
Brown's testimony, coupled with petitioner's medical records and the identified risk factors, was sufficient to rebut the statutory presumption ( see Matter of Lawless v DiNapoli, 56 AD3d at 1115-1116; Matter of Bryant v Hevesi, 41 AD3d at 932-933; Matter of Tucker v McCall, 262 AD2d 916, 917; Matter of Inguaggiato v Regan, 193 AD2d 1045; compare Matter of Skae v Regan, 208 AD2d 1028, 1029-1030). Petitioner also challenges the denial of his applications for retirement disability benefits related to his ear injury. Since respondent conceded that such injury was the result of an accident within the meaning of Retirement and Social Security Law ยง 363, the issue thus distills to whether substantial evidence supports the determination that petitioner's hearing impairment does not render him permanently incapacitated from performing his duties as a firefighter ( see Matter of Mullins v New York State Comptroller, 49 AD3d 951, 951-952; Matter of Zindell v Hevesi, 27 AD3d 996, 997). Although petitioner testified that his ear injury rendered him unable to discern certain tones, especially in noisy situations, and affected his ability to drive a fire engine, hear the fire radio and perform at the scene of a fire, he failed to provide any additional evidence supporting these assertions, and it is undisputed that he returned to work within a month following the October 1999 incident and thereafter continued to work on full duty as a firefighter until the May 2004 incident. Moreover, the Retirement System proffered the report of an otolaryngologist who examined petitioner and reviewed two audiograms performed on petitioner shortly after the injury.