IN RE: Pauline HARPER (2000)

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 which denied petitioner's applications for ordinary and accidental disability retirement benefits.

Alleging that she has a permanently disabling neck condition, claimant, a school bus driver, filed applications for both ordinary and accidental disability retirement benefits.   According to petitioner's treating physician, petitioner is permanently incapacitated from performing the duties of a school bus driver as a result of a degenerative arthritic condition in her neck which was asymptomatic prior to a 1994 work-related accident that aggravated the condition.   The expert for the State and Local Employees' Retirement System testified that, while petitioner exhibited pain and discomfort when he examined her in 1997, he could find no objective evidence of neurological disease or injury which would cause her subjective symptoms, and he concluded that petitioner could perform the duties of a school bus driver.   Concluding that petitioner was not disabled, respondent denied her applications and petitioner commenced this CPLR article 78 proceeding to review the determination.

 We reject petitioner's contention that respondent erred in relying on the opinion of the Retirement System's expert instead of her treating physician's opinion.   It is well settled that respondent has the authority to resolve conflicts in medical opinion and to credit the testimony of one expert over that of another (see, e.g., Matter of Tower v. McCall, 257 A.D.2d 973, 974, 684 N.Y.S.2d 335).   Although respondent's authority is limited by the principle that expert medical testimony “must be viewed in light of the record as a whole and has no greater probative force tha[n] the ground upon which it is based” (Matter of Nopper v. McCall, 222 A.D.2d 884, 885, 635 N.Y.S.2d 723), an expert opinion based on a review of medical records and a physical examination is generally credible evidence upon which respondent may rely (see, Matter of Kavakos v. McCall, 251 A.D.2d 857, 858, 674 N.Y.S.2d 482, lv. denied 92 N.Y.2d 812, 680 N.Y.S.2d 905, 703 N.E.2d 763).   What is required is an articulated, rational and fact-based medical opinion (see, Matter of Meyer v. Board of Trustees, 90 N.Y.2d 139, 147-148, 659 N.Y.S.2d 215, 681 N.E.2d 382).   When such an opinion is offered, inconsistencies or other alleged deficiencies in the expert's testimony present questions of credibility for the administrative fact finder to resolve (see generally, Matter of Kinard v. Battle Verzeni Constr. Co., 160 A.D.2d 1208, 555 N.Y.S.2d 469).

 In this case, the Retirement System's expert reviewed petitioner's medical records, which included X rays and the results of an MRI, and conducted a neurological examination of petitioner.   He articulated an opinion of no permanent disability which is rationally based on his findings from the review of medical records and the neurological examination.   Despite petitioner's criticisms, the expert's opinion is not so lacking in foundation or rationality as to preclude respondent from exercising the authority to evaluate conflicting medical opinions (compare, Matter of Nicholson v. McCall, 250 A.D.2d 994, 672 N.Y.S.2d 966;  Matter of City of Schenectady v. McCall, 245 A.D.2d 708, 666 N.Y.S.2d 754, with Matter of Principe v. McCall, 255 A.D.2d 853, 855-856, 680 N.Y.S.2d 754;  see, Matter of Silverhardt v. State of New York, 269 A.D.2d 652, 653, 703 N.Y.S.2d 555).

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

CARPINELLO, J.

CARDONA, P.J., PETERS, GRAFFEO and ROSE, JJ., concur.