Opinion
March 1, 1990
Appeal from the Supreme Court, New York County (William P. McCooe, J.).
In denying petitioner's application for disability retirement because of numerous job-related injuries to his lower back, the Board of Trustees adopted the recommendation of the Medical Board, which reaffirmed its earlier decision to deny petitioner's application. The Board of Trustees had remanded the matter to the Medical Board to review supplemental medical reports submitted by petitioner following the Medical Board's earlier decision. The Medical Board reviewed the later reports from an orthopedic surgeon and radiologist, and determined that the difference between the report of the first and second radiologists was that the first one had found no evidence of any gross stenosis of the spine and that all the foremen appeared normal, while the second found compromise of the neural foramen at L4-5 with some disc bulging and felt there was narrowing of the neural foramen at L5-51. The Medical Board then concluded that there was no new evidence not noted by the previous Board and reaffirmed its previous decision of disapproval.
The Board of Trustees must accept the report of the examining Medical Board concerning the physical qualifications of the petitioner. Whether or not the petitioner is physically disqualified is a scientific question which must be determined by the experts who examine the petitioner. (Matter of Nemecek v Board of Trustees, 99 A.D.2d 954, 955.) When confronted with a conflict of medical opinion, the Board of Trustees is entitled to rely upon the unanimous opinion of the members of the Medical Board. (Matter of Scotto v Board of Trustees, 76 A.D.2d 774, 776.)
Since the Board of Trustees' decision has a rational basis, is based on substantial evidence and is not arbitrary or capricious, there is no justification for disturbing the determination by the Board of Trustees. (Matter of Paul v Board of Trustees, 135 A.D.2d 411, 412.)
Concur — Kupferman, J.P., Asch, Wallach, Smith and Rubin, JJ.