Labor & Employment Law

Refusal to undergo a reasonably safe surgical procedure bars disability retirement

By Harvey Randall, Esq.

Refusal to undergo a reasonably safe surgical procedure bars disability retirement
Matter of Richard Beckley v New York State & Local Retirement System, 43 A.D.3d 1267, Appellate Division, Third Department

Richard Beckley, an automotive mechanic for a school district, injured his left foot in January 2001 when he attempted to board a school bus. He applied for disability retirement benefits under Retirement and Social Security Law §605. The Comptroller adopted the Hearing Officer findings that Beckley was not permanently incapacitated from performing his duties as he had unreasonably refused to submit to a reasonably safe and common surgical procedure that could potentially resolve his disability. The Comptroller then rejected Beckley?s application for disability retirement benefits.

Noting that it was undisputed that Beckley suffers from plantar fasciitis that rendered him temporarily unable to perform his regular duties as a mechanic, the Appellate Division said that the sole issue in this appeal is whether substantial evidence supported the Comptroller?s determination that Beckley did not establish that the injury rendered him permanently incapacitated.

John Devanny, a board-certified orthopedic surgeon, examined Beckley and testified on behalf of the New York State and Local Retirement System. Dr. Devanny?s opinion:

Beckley was not permanently incapacitated from performing his duties as a mechanic because there were treatments that [Beckley] had not tried, including plantar fascia release which he described as a reasonably safe and common, 10-minute outpatient procedure.

In contrast, Beckley testified that he was not willing to undergo surgery because his podiatrist had advised him that the surgery success rate was only 50% and that no procedure exists to correct any worsening of his condition if the surgery were unsuccessful.

Noting that the Comptroller is free to resolve conflicting medical testimony, the Appellate Division found that substantial evidence supported the Comptroller?s determination that Beckley was not permanently incapacitated because a reasonably safe and common surgical procedure exists that could resolve his disability.

Full post as published by New York Public Personnel Law on April 25, 2008 (boomark / email).