Opinion
Appeal No. 14553 Index No. 155095/20Case No. 2020-04655
11-04-2021
In the Matter of Michelle Carter, Petitioner-Appellant, v. New York City Employees' Retirement System, et al., Respondents-Respondents. Appeal No. 14553 Case No. 2020-04655
Pasternack, Tilker Ziegler Walsh, Stanton & Romano, LLP, New York (Jordon A. Ziegler of counsel), for appellant. Georgia M. Pestana, Corporation Counsel, New York (Mackenzie Fillow of counsel), for respondents.
Pasternack, Tilker Ziegler Walsh, Stanton & Romano, LLP, New York (Jordon A. Ziegler of counsel), for appellant.
Georgia M. Pestana, Corporation Counsel, New York (Mackenzie Fillow of counsel), for respondents.
Before: Acosta, P.J., Renwick, Kapnick, Kennedy, Mendez, JJ.
Judgment (denominated an order), Supreme Court, New York County (Carol R. Edmead, J.), entered November 17, 2020, denying the petition to vacate respondents' determination, dated March 12, 2020, which denied petitioner's application for performance of duty disability retirement, and dismissing the proceeding brought under CPLR article 78, unanimously affirmed, without costs.
The determination by the Medical Board that petitioner's workplace injury was not the cause of her disability is based on credible evidence, and accordingly, respondents' determination denying performance of duty disability retirement benefits was not arbitrary and capricious (see Matter of Russell v New York City Fire Pension Fund, 192 A.D.3d 442, 443 [1st Dept 2021]). Respondents properly relied upon the Medical Board's unanimous opinion as to causation, made after considering her case four times (see id. at 443; Matter of Christian v New York City Employees' Retirement Sys., 56 N.Y.2d 841, 843 [1982]). Although some of petitioner's treating physicians opined that there was a causal connection between her workplace injury and her disability, these opinions do not lead to a conclusion that no credible evidence supports the Medical Board's recommendation (see Matter of Merlino v Teachers' Retirement Sys. of the City of N.Y., 177 A.D.3d 430, 430 [1st Dept 2019], lv denied 35 N.Y.3d 909 [2020]; Matter of Creegan v Board of Trustees of the N.Y. City Police Pension Fund Art. II, 7 A.D.3d 335, 335 [1st Dept 2004]).
Given petitioner's various descriptions of her injury and how it was sustained, and the medical records showing that she suffered no pain or limitation of use in her ankle immediately after the incident or in the following days, respondents were entitled to credit petitioner's contemporaneous account of her injury and reject her more recent account (Matter of Lang v Kelly, 101 A.D.3d 561, 561 [1st Dept 2012], affd 21 N.Y.3d 972 [2013]). Furthermore, although petitioner argues that her failure to mention ankle pain in the initial incident report was a mistake on her part, the fact remains that she also stated during her initial medical evaluation that she had no ankle pain.