Seon Sook Park v. McCall

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 accidental disability retirement benefits.

Petitioner, a nurse’s aide, injured her back, neck and shoulder in a work-related accident in April 1994. She subsequently filed an application for accidental disability retirement benefits based on these injuries. Concluding that petitioner was not permanently incapacitated from the performance of her duties, respondent denied the application and petitioner commenced this CPLR article 78 proceeding to challenge the determination.

The basic premise of petitioner’s challenge to the determination is that respondent erred in accepting the testimony of the *604orthopedic expert for the State and Local Employees’ Retirement System rather than that of her treating physician. Where, as here, the Retirement System’s expert provides an articulated, rational and fact-based opinion, founded upon a physical examination and review of relevant medical reports and records, the expert’s opinion generally will not be considered so lacking in foundation or rationality as to preclude respondent from exercising the authority to evaluate conflicting medical opinion (see, Matter of Harper v McCall, 277 AD2d 589). Although an MRI of petitioner’s spine revealed mild spondylolisthesis and a herniated disc, the expert nevertheless unequivocally concluded that, in the absence of any neurologic deficit, petitioner was not incapacitated from the performance of her duties as a nurse’s aide. Petitioner’s criticisms of the expert’s opinion are based on the type of alleged deficiencies which presented a question of credibility for respondent to resolve (compare, id., with Matter of Nopper v McCall, 222 AD2d 884; see, Matter of Silverhardt v State of New York, 269 AD2d 652).

Cardona, P. J., Peters, Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.