SORRENTINO v. NOVELLO

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Michael SORRENTINO, Petitioner, v. Antonia C. NOVELLO, Commissioner, New York State Department of Health, Respondent.

Decided: June 14, 2002

Present:  GREEN, J.P., HURLBUTT, SCUDDER, KEHOE, and GORSKI, JJ. Neighborhood Legal Services, Inc., Buffalo (James R. Sheldon, Jr., of Counsel), for Petitioner. Eliot Spitzer, Attorney General, Albany (Julie M. Sheridan of Counsel), for Respondent.

Petitioner is a 39-year-old man diagnosed with limb-girdle muscular dystrophy.   Respondent denied petitioner's request for the purchase of an LCM Standing Power Wheelchair based upon a lack of medical justification.   At the fair hearing challenging the denial of his request, petitioner and his treating physician testified that petitioner could propel himself only a few feet at a time in his manual wheelchair.   Petitioner's physician further testified that continued use of the manual wheelchair will result in overuse syndrome, a condition involving the breakdown of muscles, and that use of a power wheelchair would prevent petitioner from developing that condition.   Petitioner's physician also testified that a wheelchair with a standing feature would promote circulation, bone density, and bladder and bowel function, and would prevent pressure sores, contractures, loss of muscle mass and muscle atrophy.   In addition, petitioner presented evidence that the standing feature would minimize the risk of injury from falling.   Finally, petitioner and his physician testified that other devices are not reasonable alternatives to the requested wheelchair because the use of those devices requires the assistance of another person, and such assistance is not available in petitioner's household.   Because respondent offered no contrary proof, the determination that the requested wheelchair is not medically necessary is not supported by substantial evidence (see Social Services Law § 365-a;  Matter of Gartz v. Wing, 236 A.D.2d 890, 891, 654 N.Y.S.2d 702;  Matter of Dobson v. Perales, 175 A.D.2d 628, 572 N.Y.S.2d 562).

It is hereby ORDERED that the determination be and the same hereby is unanimously annulled on the law without costs and the petition is granted.

MEMORANDUM: