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FINDING THAT PETITIONER’S BACK INJURY WAS NOT RELATED TO THE ACCIDENT WAS NOT SUPPORTED BY THE EXPERT TESTIMONY (THIRD DEPT).

The Third Department, reversing the comptroller, determined the petitioner, a police crossing guard, was entitled to disability benefits resulting from her being struck by a car. The finding that petitioner’s back injuries were not related to the accident was not supported by the record:

… [I]nasmuch as the parties concede that petitioner is permanently incapacitated from performing her duties, the only issue to be resolved is whether she met her burden of demonstrating that her back injuries were causally related to the … accident… . Notably, the medical experts who examined petitioner all agreed that she suffers from degenerative disc disease of the lumbar spine, including spinal stenosis and disc displacement. These experts, however, provided conflicting medical opinions as to the cause of petitioner’s disabling back condition. Although the Comptroller retains the authority to resolve conflicting medical opinions and to credit the opinion of one expert over another … , the credited expert must articulate a “rational and fact-based opinion founded upon a physical examination and review of the pertinent medical records” … . Matter of Petras-Ross v DiNapoli, 2019 NY Slip Op 00939, Third Dept 2-7-19

 

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