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

IN RE: Emma WASHINGTON, Petitioner, v. H. Carl McCALL, as New York State Comptroller, Respondent.

Decided: September 26, 2002

Before:  CREW III, J.P., PETERS, MUGGLIN, ROSE and LAHTINEN, JJ. Russell A. Schindler, Kingston, for petitioner. Eliot Spitzer, Attorney General, Albany (William E. Storrs of counsel), for respondent.

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.

Petitioner was employed as a supervisor and developmental assistant at a residential care facility for developmentally disabled adults.   Her duties entailed supervising staff and caring for clients, including those who were physically aggressive.   On January 5, 1998, petitioner slipped and fell on a wet floor at the facility, injuring her neck and back.   She did not return to work thereafter.   She subsequently filed applications for ordinary and accidental disability retirement benefits.   Following a hearing, respondent denied petitioner's applications, finding that she was not permanently incapacitated from the performance of her duties.   Petitioner commenced the instant CPLR article 78 proceeding challenging this determination.

Contrary to petitioner's claim, we find that there is substantial evidence in the record to support respondent's determination.   Three different physicians testified at the hearing.   Petitioner's treating physician diagnosed her with cervical spondylosis, spinal stenosis, a herniated disc, neuraphraxia of the upper and lower left extremities and degenerative disc disease, and opined that these conditions caused her to be permanently disabled from performing her duties.   The physicians who examined petitioner on behalf of the New York State and Local Employees Retirement System acknowledged that some of these conditions were revealed in certain diagnostic tests performed on petitioner, but nevertheless opined, based upon their clinical examinations, that petitioner was not permanently incapacitated from performing her job duties.   Given that it is the province of respondent to evaluate conflicting medical opinion (see Matter of Gagnon, 289 A.D.2d 833, 834, 734 N.Y.S.2d 692;  Matter of Meegan v. New York State Retirement Sys., 285 A.D.2d 892, 894, 728 N.Y.S.2d 592) and, absent objective medical proof substantiating the existence of a permanent disability (see Matter of Johnson v. McCall, 281 A.D.2d 730, 730, 721 N.Y.S.2d 294), we find no reason to disturb respondent's determination.

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



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