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Matter of McGrath v. Regan

Appellate Division of the Supreme Court of New York, Third Department
Mar 21, 1985
109 A.D.2d 1007 (N.Y. App. Div. 1985)

Opinion

March 21, 1985

Appeal from the Supreme Court, Albany County.


On December 29, 1980, petitioner, who was then employed as a stenographer for the Department of Motor Vehicles, filed an application for ordinary disability retirement benefits with the State Employees' Retirement System. She claimed permanent disability due to "osteoarthritis 5th and 6th vertebrae, back osteoarthritis in facet of spine; right hip, herniated disk of lumbar spine, degeneration of bones, scoliosis, low back pain". She also stated that she was being treated for "temporomandibular joint synoritis of jaw". Petitioner was examined by Dr. Fred E. Dexter on February 3, 1981 at the request of the Retirement System. In this doctor's opinion, petitioner was not permanently incapacitated. On February 22, 1982, petitioner was examined by Dr. Stephen Carney, D.D.S. In his opinion, petitioner was not permanently disabled as the result of her jaw condition.

At petitioner's request, a hearing was held at which she testified to her inability to perform her duties of employment. She also submitted a report of Dr. Jon Toussaint, an orthopedic surgeon, whose diagnosis was a degenerative disk of the lumbar spine and osteoarthritis that had "gone into the joints of the spine". In October, 1980, petitioner had spent a month in therapy at a hospital. Dexter testified that he found no degenerative disk disease, facet joint degeneration or rheumatoid arthritis. The osteoarthritis he did find was, in his opinion, clinically insignificant.

Respondent accepted the findings of Dexter and Carney, and determined that petitioner was not permanently incapacitated for the performance of her duties. This proceeding, instituted by petitioner, was transferred to this court by Special Term. The record contains conflicting medical opinions as to petitioner's physical condition. Respondent's evaluation of such conflicting opinions must be accepted ( Matter of Curley v. Regan, 102 A.D.2d 939), and respondent may accord more weight to the testimony of one doctor rather than another ( Matter of Sica v. New York State Employees' Retirement Sys., 75 A.D.2d 927, affd 52 N.Y.2d 941). Inasmuch as respondent's determination is supported by substantial evidence in the record, it must be upheld ( Matter of Rovegno v. Regan, 103 A.D.2d 877).

Determination confirmed, and petition dismissed, without costs. Mahoney, P.J., Casey, Mikoll and Yesawich, Jr., JJ., concur.


Summaries of

Matter of McGrath v. Regan

Appellate Division of the Supreme Court of New York, Third Department
Mar 21, 1985
109 A.D.2d 1007 (N.Y. App. Div. 1985)
Case details for

Matter of McGrath v. Regan

Case Details

Full title:In the Matter of EILEEN McGRATH, Petitioner, v. EDWARD V. REGAN, as…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Mar 21, 1985

Citations

109 A.D.2d 1007 (N.Y. App. Div. 1985)

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