                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 9, 2017                   523251
________________________________

In the Matter of CHARLES
   CALIFANO,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as State
   Comptroller, et al.,
                    Respondents.
________________________________


Calendar Date:   January 10, 2017

Before:   Garry, J.P., Rose, Devine, Clark and Mulvey, JJ.

                             __________


      Sherman Federman Sambur & McIntyre, LLP, Bay Shore (Sean
Patrick Riordan of counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (William E.
Storrs of counsel), for respondents.

                             __________


Mulvey, J.

      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 denying
petitioner's request for performance of duty disability
retirement benefits.

      Petitioner, a correction officer, applied for performance
of duty disability retirement benefits (see Retirement and Social
Security Law § 607-c) alleging that he was permanently
incapacitated due to work-related injuries to his neck, back and
right wrist sustained as a result of acts of inmates in March
2007 and March 2011. The application for benefits was initially
                              -2-                523251

denied upon the ground that he was not permanently incapacitated
from performing his duties as a correction officer. Petitioner
requested a hearing and redetermination and, following a hearing,
a Hearing Officer upheld the denial of the application.1
Respondent Comptroller accepted the findings and conclusions of
the Hearing Officer, and this CPLR article 78 proceeding ensued.

      We confirm. "In connection with any application for
accidental or performance of duty disability retirement benefits,
the applicant bears the burden of proving that he or she is
permanently incapacitated from the performance of his or her job
duties" (Matter of Del Peschio v DiNapoli, 139 AD3d 1298, 1299
[2016] [internal quotation marks and citations omitted]; see
Matter of Anderson v DiNapoli, 126 AD3d 1278, 1278 [2015]; Matter
of Occhino v DiNapoli, 117 AD3d 1156, 1156 [2014]). "In
determining whether a person is permanently disabled, [the
Comptroller] may consider whether proper medical treatment is
reasonably and safely available to correct the disability"
(Matter of Dingee v DiNapoli, 56 AD3d 876, 877 [2008] [citation
omitted]; see Matter of Cepeda v New York State Comptroller, 115
AD3d 1146, 1147 [2014], lv denied 23 NY3d 906 [2014]), and
petitioner bears the burden of justifying refusal to consent to
such treatment (see Matter of Quigley v Hevesi, 48 AD3d 1023,
1025 [2008]; Matter of Beckley v New York State & Local
Retirement Sys., 43 AD3d 1267, 1268 [2007]).

      At the hearing, petitioner submitted the medical reports of
various treating physicians, in which they opined that petitioner
was disabled and unable to perform the duties of the position of
correction officer at the time of their examination. Mitchell
Goldstein, petitioner's private orthopedist, reported that
petitioner continued to have neck and back pain as a result of
cervical and lumbar herniated discs with cervical radiculopathy,
lumbar radiculopathy and lumbar stenosis and that, as a result of


    1
        At the hearing, respondent New York State and Local
Retirement System conceded that the incidents of March 2007 and
March 2011 both constituted an act of an inmate and caused
petitioner's injuries for purposes of petitioner's application
for performance of duty disability retirement benefits.
                              -3-                523251

petitioner's pain, limited range of motion and difficulty with
activity of daily living, petitioner was totally and permanently
disabled from performing his duties as a correction officer.
Without expressing any view as to permanency, neurologists Ahmed
Elfiky and Igor Stiller examined petitioner and each reported,
consistent with the findings in Goldstein's report, that
petitioner was totally disabled at the time of examination as a
result of his injuries and unable to perform his duties as a
correction officer. Stuart Kandel, an orthopedic surgeon who
conducted an orthopedic evaluation of petitioner, also reported
that petitioner was not capable of performing his duties as a
correction officer; however, Kandel opined that petitioner had
not yet reached the maximum medical improvement. Paul Brisson,
an orthopedic surgeon specializing in spinal surgery, examined
petitioner and also concluded that petitioner's injuries to his
cervical and lumbar spine were "very symptomatic" and that,
because his injuries had not "resolved over time with proper
medication or conservative treatment," petitioner was totally
disabled and could not resume his work as a correction officer.
Brisson also reported, however, that petitioner "may benefit from
an anterior and posterior lumbar fusion [surgery] of L4-5 and L5-
S1."

      In contrast, respondent New York State and Local Retirement
System presented medical reports and testimony from John Killian,
an orthopedic surgeon who reviewed petitioner's medical records
and examined petitioner in June 2012 and June 2013. Following
his initial examination of petitioner, Killian reported, among
other things, that petitioner presented with no atrophy,
asymmetry, deformity or muscle spasm of the cervical spine and,
due to inconsistencies between imaging studies and petitioner's
reported and observed pathology, that petitioner was "exhibiting
symptom magnification for motivational purposes." Killian
further reported that, given petitioner's exaggerated subjective
complaints and age, it is "much too early to establish permanent
disability." In his June 2013 addendum report prepared after
reviewing additional medical documentation, Killian noted that
there was no indication that petitioner followed up with a spinal
surgeon or considered having surgery to decompress and stabilize
his lower back. Killian expressed that petitioner exhibits a
"potential for improvement" and that he is therefore not
                              -4-                523251

permanently disabled from resuming his duties as a correction
officer.

      Relative to the possibility of corrective surgery, Killian
testified that, notwithstanding petitioner's testimony describing
his apprehension of corrective procedures, a bi-level fusion
surgical procedure was available and suggested to petitioner that
the procedure was a reasonable option with a significant
likelihood of improvement that would allow petitioner to return
to work at a normal capacity. Killian also opined that there is
a "good chance" that, even without the surgery, petitioner would
eventually recover and be able to resume working. Inasmuch as
the Comptroller is vested with the authority to weigh conflicting
medical evidence and credit the reports and testimony of Killian
over the medical reports submitted by petitioner (see Matter of
Aliperti v DiNapoli, 138 AD3d 1378, 1379 [2016]; Matter of
Wilkinson v DiNapoli, 86 AD3d 851, 853 [2011]), we find that
substantial evidence in the record supports the determination
that petitioner's condition is not permanent and that he did not
overcome his burden to demonstrate that he has exhausted
reasonable remedial procedures available to him (see Matter of
Borsilli v DiNapoli, 140 AD3d 1575, 1576 [2016]; Matter of Hulse
v DiNapoli, 70 AD3d 1235, 1237 [2010]; Matter of Dingee v
DiNapoli, 56 AD3d at 877; Matter of Quigley v Hevesi, 48 AD3d at
1025). We therefore discern no basis to disturb the
determination denying petitioner's application for performance of
duty disability retirement benefits. Finally, we have considered
petitioner's remaining contentions and find them to be without
merit.

     Garry, J.P., Rose, Devine and Clark, JJ., concur.
                              -5-                  523251

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
