Mr. Shelly Mazel was employed as a Fish Culturist by the New York State Department of Environmental

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Question:

Mr. Shelly Mazel was employed as a Fish Culturist by the New York State Department of Environmental Conservation starting on April 1, 2003. On May 28, 2008, when he applied for Article 15 Disability Retirement benefits, since he had fewer than ten years of service credit in order to qualify for such benefits, the governing statute requires him to prove that he is permanently disabled from performing the duties of the job he had, and that the disability resulted from a job-related accident (an accident "sustained in service").72 The responsibilities of his particular position require him to assess the viability of various species of fish in the Finger Lakes, and to identify factors threatening such viability.

The Retirement System denied Mr. Mazel's application, reasoning that he had fewer than ten years of service credit, the incident of May 1, 2008 was not an accident for purposes of the governing statute, and he is not permanently incapacitated. At the hearing on his challenge to the System's decision, he testified that throughout his relatively brief career, the essential component of the duties of his employment was to use his unusually acute sense of smell to determine causes of piscine fatality. He testified that on May 1, 2008, while assessing Keuka Lake, a colleague, S. H. L. Miele, alerted him that a strong aroma indicated the presence of a deceased specimen about a half mile away. As he approached the object of his investigation, a ferretan animal not seen in this location in recent memorysuddenly streaked by, causing him to trip and fall directly onto the dead pickerel, nose first. The direct encounter with the powerful scent so overwhelmed his olfactory powers as to completely nullify them. When cross-examined by the System's attorney, Mr. Mazel appeared deeply disconsolate about the loss of his ability and profession.

Mr. Miele, in testimony, corroborated Mr. Mazel's account, but noted that the animal moved too quickly for him to identify its species.

In the written report of his injury, signed by Mr. Mazel and his employer on May 2, 2008, Mr. Mazel described the incident as, "I tripped over a small animal that crossed my path as I approached the dead fish." He did not identify the animal as a ferret on that occasion. Various small animals are plentiful in the Keuka Lake area.

Dr. Probosk Gogol, a board certified specialist in otorhinolaryngology, examined Mr. Mazel on behalf of the Retirement System on July 1, 2009, and reviewed his medical records. His report of that date noted that while anosmia can result from a lack of regeneration of the olfactory neuroepithelium, there are no reported cases of such results secondary to direct insult of the organ, and no objective basis for concluding that Mr. Mazel's condition is permanent, or even other than symptom magnification.

Unfortunately, on July 2, 2009, Dr. Gogol himself had a fatal encounter with a former patient who was unhappy with the results of a rhinoplasty he had performed.

Dr. Cyrano Durante, chair of the department of otolaryngology at the Mayo Sinai Clinic, who had attempted to treat applicant for this condition on at least twelve occasions, testified that the factors predisposing patients to olfactory dysfunction, or the mechanisms underlying such dysfunction, remain unclear. He further testified that throughout his treatment he had performed a number of standard tests to ascertain olfactory function, which had consistently indicated complete loss. He concluded that Mr. Mazel can no longer perform the duties of his employment, and is permanently incapacitated. Here are some questions for discussion:

Does applicant's contemporaneous written report negate the credibility of his later testimony?
Does the incident of May 1, 2008, constitute an accident as that term is used in the RSSL?
Can the System rely on Dr. Gogol's "hearsay" report, despite applicant's inability to cross-examine Dr. Gogol?
If the hearing officer determines that the May 1, 2008, incident qualifies as an accident for purposes of the Retirement and Social Security Law, but based on Dr. Gogol's report, applicant does not qualify for Article 15 Disability Retirement benefits because he is not permanently incapacitated, will a reviewing court sustain that judgment?