                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 5, 2015                   520236
________________________________

In the Matter of LAWRENCE
   JACKSON,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ANNETTE BARBER, as Cortland
   County Director of Personnel
   and Civil Service Personnel
   Officer, et al.,
                    Respondents.
________________________________


Calendar Date:   September 15, 2015

Before:   Peters, P.J., Lahtinen, McCarthy and Lynch, JJ.

                             __________


      Steven Crain & Daren Rylewitz, Civil Service Employees
Association, Inc., Local 1000, AFSCME, AFL-CIO, Syracuse (D.
Jeffrey Gosch of counsel), for petitioner.

      Coughlin & Gerhart, LLP, Binghamton (Lars P. Mead of
counsel), for respondents.

                             __________


McCarthy, J.

      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Cortland County)
to review a determination of respondent Annette Barber denying
petitioner's application for General Municipal Law § 207-c
benefits.

      Petitioner was diagnosed with plantar fasciitis in his left
foot while working as a correction officer for the Cortland
County Sheriff's Department. He thereafter filed an application
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for workers' compensation benefits, which claim was granted and
subsequently confirmed by the Workers' Compensation Board.
Petitioner also applied for disability benefits pursuant to
General Municipal Law § 207-c. Respondent Annette Barber, the
personnel officer of respondent County of Cortland, denied the
application on the merits upon her determination that
petitioner's condition was idiopathic, i.e., without a specific
cause. Following an appeal and subsequent hearing, Barber upheld
her initial determination based on the Hearing Officer's
recommendation to do so. Petitioner thereafter commenced this
CPLR article 78 proceeding alleging that the denial of his
application was, among other things, not supported by substantial
evidence. Supreme Court transferred the matter to this Court.

      Contrary to petitioner's initial contention, it is settled
law that "a determination by the Workers' Compensation Board that
an injury is work-related" does not, "by operation of collateral
estoppel, automatically entitle an injured employee to General
Municipal Law § 207-c benefits" (Matter of Balcerak v County of
Nassau, 94 NY2d 253, 256 [1999]; see Auqui v Seven Thirty One
Ltd. Partnership, 22 NY3d 246, 256 [2013]). Accordingly, the
Board's determination did not collaterally estop Barber from
denying petitioner's application for General Municipal Law
§ 207-c benefits.

      Further, substantial evidence supports the determination
denying petitioner benefits. Pursuant to General Municipal Law
§ 207-c, correction officers are entitled to benefits when they
are injured "in the performance of [their] duties" (General
Municipal Law § 207-c [1]; see Matter of Brunner v Bertoni, 91
AD3d 1100, 1101 [2012]), so long as they can establish the
existence of a "'direct causal relationship between job duties
and the resulting illness or injury'" (Matter of Theroux v
Reilly, 1 NY3d 232, 243-244 [2003], quoting Matter of White v
County of Cortland, 97 NY2d 336, 340 [2002]). This Court will
uphold a determination regarding a correction officer's
eligibility for benefits if such decision is supported by
substantial evidence (see Matter of Chase v County of Albany, 127
AD3d 1446, 1447 [2015]; Matter of Brunner v Bertoni, 91 AD3d at
1101), i.e., "such relevant proof as a reasonable mind may accept
as adequate to support a conclusion or ultimate fact, [which] is
                              -3-                520236

'less than a preponderance of the evidence'" (Matter of Ridge Rd.
Fire Dist. v Schiano, 16 NY3d 494, 499 [2011], quoting 300
Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176,
180-181 [1978]). Notably, credibility determinations are within
the sole province of the Hearing Officer (see Matter of Berenhaus
v Ward, 70 NY2d 436, 443-444 [1987]; Matter of Kuznia v Adams,
106 AD3d 1227, 1229 [2013]), and the burden of proof rests with
the petitioner (see Matter of Brunner v Bertoni, 91 AD3d at
1101).

      Orthopaedic surgeon Daniel Carr reviewed petitioner's
medical records and conducted an independent medical examination
of petitioner. He opined that, to a reasonable degree of medical
certainty, petitioner's plantar fasciitis was idiopathic.
Despite petitioner's introduction of contrary expert evidence,
the Hearing Officer "was entitled to weigh the conflicting
medical opinions and determine which expert to credit" (Matter of
Chase v County of Albany, 127 AD3d at 1447; see Matter of Roache
v Hevesi, 38 AD3d 1036, 1037 [2007]). Given that Carr
"'articulate[d] a rational and fact-based opinion founded upon a
physical examination and review of the pertinent medical
records'" (Matter of Calhoun v New York State & Local Employees'
Retirement Sys., 112 AD3d 1172, 1174 [2013], quoting Matter of
Mulvaney v DiNapoli, 92 AD3d 1021, 1021 [2012] [internal
quotations marks and citation omitted]), the Hearing Officer's
reliance thereon was reasonable and, therefore, petitioner's
application was properly denied (see Matter of Brunner v Bertoni,
91 AD3d at 1101). Petitioner's remaining arguments are
unpreserved and/or without merit.

     Peters, P.J., Lahtinen and Lynch, JJ., concur.
                              -4-                  520236

      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
