New York State Retirement System, The New York State Attorney Generals Office. SCAMMED CIVIL SERVENT Albany N.Y. New York New York

Well I didn't know what to do about the Verified letter I received, do i wait until I hear from them again,or what.
So I called Albany again, and found somebody, that wanted to help. I was told to be there on my court date, and when your name is called, and the judge tells you about the transfer to the Appellate court, just tell him you want to argue that,and you want to be heard today, in the Supreme Court.

So that is what I did, but when the case was called, nobody was there from the Attorney General's Office. So judge Cannizzaro, had his clerk check the halls, and make a few phone calls to try and get somebody to come in from the Attorney Generals Office.

After they found somebody, I asked the judge if I could ask him something, then he asked me to come up to his bench, I told him that I don't mean any disrespect for the court. But if it was two plain Joe's , would you be calling a house to find out if they were coming to court, or is it because it is the Attorney Generals Office. And he said, because it's the Attorney General. Then he told me, that when they get here,we will continue this down in my study.

REPLY TO - NOT FOR NOTHING.
First, Thanks for reading my scam.

Second, If everything went fair and proper, I would have won my case long ago.

Third, I use to think, why do some people that ask for help,go and do something crazy, when nobody cares. There is always somebody to go to, well I found out, I was wrong.

Fourth, If this was you, who would you go to.

Fifht, Don't worry about the third, thats not me.

Waiting for reply- SCAMMED

But I believe you probably lost anyone who actually could have helped you long ago with this ongoing, drawn out complaint.

It was interesting up until about the 4th post. None of it makes sense.

Maybe someone does get it-I don't know.

First About the Special Term Clerk from the Supreme Court,
Hon, Maureen Hartmann.

When I received her letter, I called the Supreme Court in Albany to ask her what do I do now. But nobody new anything about her there, and I was told to try the Appellate Division, Third Judicial Dept, but again nobody new of her.

So I went to the library to check on Article 78 mistake's, in Civil Practice Law and Rules.

And found out that if proceeding were improperly brought as an Article 78 petition did not warrant dismissal of the petition. And I found a lot of pages that said about the same thing. I guess it was either laws or rules 103, on pages 25-26-30-33-and 34. plus I found Rule 2101, on page 716, article 21, letter F, Defects in form: Waiver.
A defect in the form of a paper, if a substantial right of a party is not prejudiced , shall be disregarded by the court, and leave to correct shall be freely giving. I don't know what that mean's, but i was grabbing at straws.
Plus this is the big one, Same letter F; The party on whom a paper is served shall be deemed to have waived objection to any defect in form unless , within two days after the receipt thereof he returns the paper to the party serving it with a ststement of particular objections.

Now getting back to the Verified answer with return, that I received. It was dated on the letter October 5, 2001, and I received it on the eight or ninth of October. That is about thirteen days after they received it.

Well September was a bad month, that was when the terrorists hijacked planes, and flew them into the World Trade Center Towers and the Pentagon, killing a lot of people.

After that traffic was a real mess, so when we started out for Albany, we left about 8.oclock on the 25th of sept. And got into Albany just about 2. o clock, by the time we finished with all the papers I think it was after 3.o clock and we still needed to find a Supreme Court Judge to sign them. Well we found one that was busy with other work, but when he found out that we came from Long Island, he said he will see us. He helped us out with a lot of things, on the papers that I didn't understand, and wished us luck.

The next day we had to serve papers to Mr. Carl-H - Mc Call the Comptroller, And The Attorney General of New York State , Mr.Eliot Spitzer, for a court date of October 12, 2001, at 9.30 am, at the Supreme Court of Albany.

About Oct 9th or 10th, we received all the papers back, from the Attorney General's Office and the Comptroller's office, saying they denied everything , In the two reports I received. Plus there was something about renumbered paragraphs, that I didn't understand.

Next there was a letter to an Hon, Maureen Hartmann, from the Special Term Clerks office,Of The Supreme Court, asking her to Transfer the case to the Appellate Court, if you can't dismiss the case. Signed by Mr. William E. Storrs. Assistant Solicitor General.

Dated October 5, 2001

Next there was a Verification letter from a Robert E. Coughlin saying, That he is Assistant Counsel to the New York State and Local retirement system: and that he read the foregoing anser and return and knows the contents there of, and that the same is true to his knowledge, except as to those matters there in contained to be alleged on information and belief, and that as to those matters , he believes it to be true.

Well I didn't know what any of this was about, except that they didn't want me going to My Article 78, Hearing. And maybe I made a mistake about the paragraphs, they mentioned so I went to the library, to check on Article 78 mistake's.

Well if I was going to continue with this, I figured I had less than four months. Because the way this case went from the start I didn't trust anybody, and they said I had four Months from the time I received the reports. So my do or die date was Sept 30, because I received the reports on May 30, 2001 and the date was on the reports I received. And nobody could say I was late. Now to start, I was going to do it without a lawyer
because I had no money.

To start was my big problem, because I had no idea what the papers meant.

But I did know they were full of lies and not mistakes, so I started with them first.

I picked out ten things, that they were lying about, Thats already in black and white, from the hearing reports.

Then I went to the library, to find out about Article 78, and the papers I would need, and how to file them.

By Sept I was ready with everything, so I called Albany and made reservations for a room for the 25th and 26th of Sept 2001,for my wife and myself.

This letter is from part one of the report I received from the retirement system Dated May 30, 2001. Reg.# 3583601-4.
H.C. # 98-0648


Dear sir,

We are enclosing herewith a copy of the Decision of the hearing officer, as well as a copy of the Findings of Fact and Conclusions of law, in the matter of application for Article 15 Disability Retirement Benefit.

If you are dissatisfied with the result in this matter, you have the right to judicial review in a proceeding pursuant to Article 78 of the Civil Practice Law and Rules ( CPLR ).

A proceeding pursuant to CPLR Article 78 to review the Comptroller's determination is commenced by service of a Notice of Petition ( or Order To Show Cause ) and Petition upon the Comptroller and the Attorney General. A notice of Petition ( or Order to Show Cause ) and Petition must be filed with the Clerk of the Supreme Court of the State of New York , County of Albany, and service must be made upon the Comptroller and the Attorney General within four months of the date of your receipt of this letter.

The Comptroller and the Retirement System have no further jurisdiction in this matter and cannot assist you in obtaining judicial review. Since there is a very short statute of limitations involed, you may wish to consult an attorney for advice on seeking judicial review.

Very truly yours,

Gregory O Childs
Assistant Deputy Comptroller

Decision And Determination of James F.X. Doyle-Hearing Officer. And he was at the Hearing when the State dr gave testimony.

Page 9, Line 12.
Hearing Judge, Dr. Leon Sultan examined the applicant on behalf of the retirement system. Dr, Sultan is Board Certified in Orthopedic Surgery. Dr. Sultan examined the applicant on July 13, 1998. Dr, Sultan obtained his history from the applicant, which inclued a description of the incident of March 8, 1996. At that time the doctor indicated that the applicant's complaints were of pain in the left shoulder when he lifted and carried heavy objects. Upon physical exam , dr, Sultan found no atrophy in either arm and no tenderness or complaints of pain on palpation.
Dr, sultan stated that he found no objective findings during his exam to establish that the applicant was permanently incapacitated from performing the duties required of a night custodian based on the injuries complained of by the applicant. He based his opinion on his evaluation and exam after reviewing the applicants job description, and other medical data and test including MRI's and Surgical reports, Accordingly, the application of the applicant for a disability retirement is denied.

Decision And Determination of James F.X. Doyle-Hearing Officer. And he was at the Hearing when the State dr gave testimony.

Page 9, Line 12.
Hearing Judge, Dr. Leon Sultan examined the applicant on behalf of the retirement system. Dr, Sultan is Board Certified in Orthopedic Surgery. Dr. Sultan examined the applicant on July 13, 1998. Dr, Sultan obtained his history from the applicant, which inclued a description of the incident of March 8, 1996. At that time the doctor indicated that the applicant's complaints were of pain in the left shoulder when he lifted and carried heavy objects. Upon physical exam , dr, Sultan found no atrophy in either arm and no tenderness or complaints of pain on palpation.
Dr, sultan stated that he found no objective findings during his exam to establish that the applicant was permanently incapacitated from performing the duties required of a night custodian based on the injuries complained of by the applicant. He based his opinion on his evaluation and exam after reviewing the applicants job description, and other medical data and test including MRI's and Surgical reports, Accordingly, the application of the applicant for a disability retirement is denied.

Decision And Determination of James F.X. Doyle-Hearing Officer. And he was at the Hearing when the State dr gave testimony.

Page 9, Line 12.
Hearing Judge, Dr. Leon Sultan examined the applicant on behalf of the retirement system. Dr, Sultan is Board Certified in Orthopedic Surgery. Dr. Sultan examined the applicant on July 13, 1998. Dr, Sultan obtained his history from the applicant, which inclued a description of the incident of March 8, 1996. At that time the doctor indicated that the applicant's complaints were of pain in the left shoulder when he lifted and carried heavy objects. Upon physical exam , dr, Sultan found no atrophy in either arm and no tenderness or complaints of pain on palpation.
Dr, sultan stated that he found no objective findings during his exam to establish that the applicant was permanently incapacitated from performing the duties required of a night custodian based on the injuries complained of by the applicant. He based his opinion on his evaluation and exam after reviewing the applicants job description, and other medical data and test including MRI's and Surgical reports, Accordingly, the application of the applicant for a disability retirement is denied.

Decision And Determination of James F.X. Doyle-Hearing Officer. And he was at the Hearing when the State dr gave testimony.

Page 9, Line 12.
Hearing Judge, Dr. Leon Sultan examined the applicant on behalf of the retirement system. Dr, Sultan is Board Certified in Orthopedic Surgery. Dr. Sultan examined the applicant on July 13, 1998. Dr, Sultan obtained his history from the applicant, which inclued a description of the incident of March 8, 1996. At that time the doctor indicated that the applicant's complaints were of pain in the left shoulder when he lifted and carried heavy objects. Upon physical exam , dr, Sultan found no atrophy in either arm and no tenderness or complaints of pain on palpation.
Dr, sultan stated that he found no objective findings during his exam to establish that the applicant was permanently incapacitated from performing the duties required of a night custodian based on the injuries complained of by the applicant. He based his opinion on his evaluation and exam after reviewing the applicants job description, and other medical data and test including MRI's and Surgical reports, Accordingly, the application of the applicant for a disability retirement is denied.

at night with pain.
Page 7, Line 16.

Still the report from James F.X. Doyle, Hearing Officer.

My Doctor, Felt that my condition did not adequately improve after non-operative treatments and I underwent surgery on Nov 18, 1996. The Doctors goal in the surgery was to repair the rotator cuff, as well as the supraspinatus tear giving him use of his arm and shoulder.

Page 38, Line 13. Second hearing, My Doctor giving Testimony.
And the fact that he never really regained strength which is not unusual after rotator cuff surgery. It's done for pain, not for strength.

Page 67, Line 4.
My lawyer, Doctor, as a generalization, with rotator cuff surgery, are there any generalizations that doctors use with regard to patients physically doing overhead lifting in work?

My Doctor, Well, this would be a real generalization, but with a tear this size, four centimeter rotator cuff tear is a large tear, it's a problem tear. And given his age, his activity level, we generally do the surgery to get them through the day. These people have constant pain. They wake up at night with pain.

Page 5, line 1.

In this proceeding the burden of proof is on the applicant to establish his claim that he is not only incapacitated from performing his duties but also that he is incapacitated permanently, and as the result of an accident.

Reply, Please see SCAMMED CIVIL SERVENT- PART FOUR
November 3, 06- #6

Please see Conclusions Of Law- Nov 2, 06.
From Part 1- Page 2, #4.

Page 6, Line 4.

Here the evidence is clear that the duties being performed by the applicant were ordinary and customary.

Reply, Please see Part one again, Page 2, #4 again the whole page.

PART TWO OF THE STATE REPORT

Decision and Determination of

Hearing Officer- James F. X. Doyle

Page 2, Line's 19 to 22.
Hearing judge his report.

#1. At the outset of the administrative hearing, the petitioner, who appeared self - represented agreed that he would seek counsel and at the subsequent hearing both the applicant and hiscounsel appeared. At that juncture counsel for the applicant sought to rely on the medical evidence considered in the prior administrative consideration as well as to present live medical testimony.

My Reply, At first I told the state, that it was at the end of the first hearing, that I asked for counsel.
But after reading and rereading the transcript, I see, I never asked for counsel at the first hearing.

Maybe they forgot, but they never considered my medical evidence in the first hearing. They kept saying I didn't send it in, but mean while, they had it all the time. I think thats called hideing the evidence. And anytime I tryed to bring them into evidence, they stopped me.

#2. Page 4, Line's 14 to 17.

The applicant testified that he slipped on snow and ice in the area near the dumpster where he stood. In his testimony he noted that he was aware that it had previously snowed and thin layer of snow covered ice, which remained on the ground that day.

My reply, See second hearing, Page 70, Line 3 to 12.

#3.Page 4, Lines 17 to 21.

According to the applicant , he cannot now perform the duties of a night custodian .

Please see Page 24, Line's 3 to 25, for what I really said.

From Conclusions of law
# 6.
The applicant has the burden of proving that he is permanently incapacitated for performance of duties as a night custodian.

Go back to the start, and see the two comp doctors, that also work for the New York State Retirement System, the same one's the State hid from the first hearing. Plus the doctor that did the operation on my shoulder, and doctors from Social Security, that said, For the reasons stated above , it is concluded that the claimant has been disabled since November 15,1996.

#7. The courts have held that the Comptroller may reject an application for disability retirement which is based on solely subjective complaints.

See my answer At # 6 AGAIN.

#8. The hearing officer may credit the opinion of one expert over another.

Who was the other expert, not there doctor I hope.

If they didn't know before the third hearing, unless they were asleep, they had to know after the third hearing, That their doctor was retired from doing any surgery way before he saw me. Plus all along me was saying, that he saw MRI'S and surgical reports. And in his testimony he stated that he never saw any MRI's or Surgical reports, and the hearing judge was there too. And he heard the doctor say, he didn't know how big the tear in my shoulder was, because he wasn't there.

#9. The medical testimony presented with other objective,,credible medical evidence does not suppport the finding that the applicant is permanently incapacitated,preventing him from performing his titled job duties.

Again please see #6, for my answer.

PART FOUR- FROM THE TWO REPORT"S I RECEIVED FROM THE STATE
SEE THE LAST PART OF 9-24-06-PART THREE.

CONCLUSIONS OF LAW

PAGE 2, # 4.
The evidence is clear that the duties being performed by the applicant were ordinary and customary. He was performing his normal duties in a routine matter at the time. The record reflects that the custodial job was performed all year , summer and winter and specifically involed dumping pails of waste from the school into the dumpster located outside the school. Nothing extraordinary occurred other the applicant walking on ground he was aware was covered with snow and ice, which presumptively might be slippery.

State Lawyer, Sir, had the ice existed there prior to the snowstorm of that day?

Myself, I have no idea, to tell you the truth. That was the first--- I come in at 3 o'clock. And that was the first dump I made, just before I went for dinner.

State Lawyer, OKAY.>

Page 72, Line 15.

Hearing judge, Sir, Did you actually finish dumping the garbage can and then put it down, or was it, did you slip before you or while you were lifting?

My self, I picked it up and I was dumping it, shaking it. And I think that's what got me slipping. When I was shaking, shaking it out I put the barrel down, I felt myself going. And I grabbed a hold of the dumpster and my feet went right out from under me.

Hearing judge, When you grabbed it, did you actually grab it with your hand or hit it with your elbow or forearm?

My self, No, I grabbed it with my hand.

Judge, So did you go down and dump the garbage later on that day?

My Self, No, that's what I was going to say before, I left the barrel there and this guy came out, he dumped it for me.

judge, And were you required to go down later in your shift to dump the garbage again?

My Self, Yes.

judge, And did you dump the garbage later on that day?

My Self, No.

Judge, Did someone else dump it for you?

Me, Yes. I just left it the barrel there. And they didn't like the idea but--

judge, Did you come to work the next day or after, the week after this incident?

Me, That was Friday. And I'm not sure, I think it was Monday I was out. I'm not sure. I think I had to see my doctor. Because I went to the hospital that Sunday and they thought I had a very bad sprain and-- because they took x-rays or whatever. And they told me to go see my doctor.
I went to see the doctor and explained it to him. and I had a report from the hospital. And he was treating me for a very bad sprain, And I don't know how long afterwards that he had sent me to a physical therapist to find out what was wrong with the shoulder.







First report I am calling Part one. This was named finding of fact and conclusions of law.
From the New York Retirement System.

#1. Page One, #2.
The application was denied on August3, 1998 on the basis that the applicant is not permanently incapacitated for the performance of duties.

By this time I had Four Doctors That said I can't Go back doing what I was doing before.
Two were from Workers Compensation, One from Social Security,
and the Doctor that did the operation.

#2. Page One, #4.
The Retirement System raised the issues of accident" and casusal relationship at the May 13, 1999 hearing. Because the
applicant has less than 10 years of credited service he must prove that he is permanently incapacitated for the performance of duties as a result of an accident" sustained in service.

See # 1 Again.

#3. Page 2, #11.
Dr. Leon Sultan, also a board certified orthopedic surgeon, testified on behalf of the Retirement System. Dr. Sultan stated that he found no objective findings during his exam to establish that the applicant was permanently incapacitated from performing the duties required of a night custodian based on the injuries complained of by the applicant. Dr. Sultan based his opinion on his evaluation and exam after reviewing the applicant's job description, and other medical data and test including the MRI'S and surgical reports.

Please see Dr. Sultan's Testimony Again.
See SCAMMED CIVIL SERVENT- Entered 8-21-06

Page 67, Line 25.
My Lawyer, Doctor, Do you have an opinion with a reasonable degree of medical certainty as to whether the applicant falls into that opinion about ever doing overhead lifting again?

My Doctor, That he should not and cannot.






Page 68, line 19.
State Lawyer, Sir, can you --you had mentioned on your direct exam today that you had described the incident of March 8th, 1996and it had been recorded incorrectly.
Can you describe exactly what happened that day. You had a thirty gallon garbage can, correct?
And approximately how much did this particular garbage can weigh?

My self, I have no idea. I mean it needed two hands to lift it.

State Lawyer, And I believe there was testimony that the level of the dumpster was approximately five feet off the ground, correct?

My Self, Right, or more. no side opening's, and had no business being there.>

State Lawyer, On the day of this incident, was it snowing out?

My Self, Yes.

State Lawyer, And had it been snowing for some time prior to you going down with the garbage ?

My Self, No, Actually the ground was frozen. Then the snow came. It was a light snow.

State Lawyer, The area where the dumpster is, is it sort of-- is it a paved asphalt area?

My Self, Yes.

State Lawyer, Was there ice there, was ice on that asphalt?

My Self, Yes.

State Lawyer, Had the ice existed there prior to the snowstorm of that day?

My Self, I have no idea, to tell you the truth. That was the first-- I come in at 3 o'clock. And that was the first dumpI made, just before I went for dinner.

State Lawyer, Approximately how much snow was on the ground at the time that you dumped this garbage can or tried to dump the garbage can?

My Self, Well, right where I was, I don't know, three years ago, but all I remember is the ice. That's about it. They usually have a recycle dumpster, and it was, our dumpster was closer to the building,, easer to reach.
But for some reason or another they reversed it, they put the recycle in front of our dumpster so we had to go around the back of the recycle dumpster to get to ours--and dump the garbage.

Page 65, Line 12.

My Lawyer, Doctor, look at your records of May, starting May 27, 1997. In that exam, did you have weakness and stiffness in the shoulder?

Dr, YES.

My Lawyer, and on six months subsequent to the surgery, did you give him any injections at that time?

YES. I gave him Cortisone.

My Lawyer, And on the next visit, did he have stiffness and weakness of the shoulder at that time?

Dr, YES.

My Lawyer, And was he under physical therapy at the time?

Dr, YES.

My Lawyer, And again on July 30th, 1997, did he still have the weakness in his shoulder?

Dr, YES.

My Lawyer, Did he have it on Aug 29,1997?

Dr, YES.

My Lawyer, Reviewing your records through the rest of 97, and into 98, did he pretty much have the same complaints and the same findings?

Dr, YES.

My Lawyer, And in Oct of 98, you found atrophy in the area of the suprascapular fossa?

Dr, YES.

My Lawyer, And approximately ten months later in 99, you also found atrophy?

Dr, YES.

My Lawyer, Dr, I have one last question for you. Does the fact that you might not have found on every occasion any reflex changes or spasms, does it alter your opinion that this manis physically incapacitated from doing his job as- a custodian ?

Dr, NO.

My Lawyer, Dr, as a generalization, with rotator cuff surgery, are there any generalizations that doctors use with regard to patients physically doing overhead lifting in work?

Dr, Well , this would be a real generalization, but with a tear this size, four centimeter rotator cuff tear is a large tear, it's a problem tear. And given his age, his activity level, We generally do the surgery to get them through the day.
These people have constant pain. They wake up at night with pain. It is reliable , although maybe not in his case as much as I'd like, it's reliable surgery for pain relief. It' completely hit or miss for regaining strength. Sometimes you get it, you're lucky, you get them strong again. Rarely you can get them to do some overhead work, particularly the younger people. But in general we tell them that you will probably not be able to do resistive overhead work again.

Page 52, Line 23.
State Lawyer, Asking my Doctor something?
Now Doctor, The rotator cuff tear of the applicant's, was that a tear which went through both sides?

My Doctor, YES.

State Lawyer, We're not talking a surface tear on one side, it actually went through both sides?

Dr, YES.

Page 54, Line 15.
State Lawyer, You also mentioned on direct that in your examination of Aug 3rd , 1999 that you noted atrophy. Was the atrophy of the left upper arm area?

My Doctor, Posterior shoulder, rotator cuff muscle development.

State Lawyer, Do you have measurements for that?

MY Doctor, NO.

State Lawyer, Did you note the applicant's strength at that time?

My Doctor, Yes. Significant weakness.

State Lawyer, Did the applicant exhibit any spasm at all in his upper back or shoulder area?

My Doctor, NO.

State Lawyer, What were your findings with respect to the applicant's strength?

My Doctor, On 10-23-96, the last exam before the surgery, Significant weakness to the rotator cuff.

State Lawyer, Doctor, what is the applicant's work history, if you know, after the March of 1996 dumping trash incident up until the time he had surgery?

My Lawyer, I'm going to object to - that. I don't think that's relevant for the doctor's testimony.

Some how the records got lost, I don't know how. But they can still check my time cards, and payroll. They say I never came back after the accident.>

Page 48, Line 24.
My Dr, Yes.

My Lawyer, Let me ask the question again,
As part of yourrecords that you were furnished and you used in your file, I'm going to ask you if you would please look at the last sentence on page 2, and ask if you agree or disagree with the conclusion there?

State Lawyer: Again, judge, I'm going to object on hearsay grounds. It is the applicant's attorney's attempt to get diagnosis or an opinion of another doctor in evidence without having that doctor here to testify. I'm unable to cross examine this doctor or confront that doctor.

My Lawyer, judge, this is part of his work product, his file on this patient. The MRI"S went into evidence the same way their other doctor's reports did. This is part of his own file and it should be allowed, he should be allowed to testify on it.

The judge, Sustained.
The rules or regulations are pretty carefully laid out. I notice that they're gone over in some detail in the prior transcript. That's what they are. You can either call them -- there's no discussion. The objection,is sustained.

My Lawyer, You're denying the doctor to testify on records that are his work product that are contained in his own file. You're denying this?

judge, I'm sustaining the objection, Counselor, lets go.

My Lawyer, Then, judge, I want a ruling before we go into their doctor's testimony on any records that doctor has should be objected to, should be not allowed in.

The judge, Counsel, when it comes time, if any records are offered,, you may state whatever your objection is, I'll certainly rule on them. I think you'll find that the evidence is the same, the rulings will be the same.

My Lawyer, I don't think so, judge. I've already gone through that with you.

judge, You're entitled to your opinion.

My Lawyer, Note my exception to the judge's ruling in not allowing the doctor to testify on records that are contained in his file, that are part of his file, are part of his work product in treating this patient.

>

>

Page 45, Line 8.
My Lawyer, Now, doctor are those actual copies of your records?

Dr, Yes.
My Lawyer, I'd like to offer those into evidence.
State Lawyer,, I have no objection.
The judge, Okay, mark them.
( Copies of the Doctors notes was
My lawyer, Now, Doctor, I'm going to show you a three - page narrative report dated Dec 3,1997 by Dr. Raymond Koval.

Now, I'm going to direct your aattention to one particular paragraph at the bottom of the second page and ask you to review where it says, this paragraph plus one sentence, work capacity. Then I'm going to ask you if you agree or disagree with that opinion.

State Lawyer, Your honor, I'm going to object to the doctor testifying in agreement to another doctor's diagnosis or treatment. It seems to be the applicant's end run around hearsay. He's going to try to get in another doctor's diagnosis or treatment records without having the doctor here to establish --

The judge, Before, Who's the other doctor, one of your doctors or--

My lawyer, No, He's an independent doctor who the workers compensation-- insurance company sent him to. He's not their's. I'm not offering his record. I'm just asking whether he agrees or disagrees with this statement. I'm not asking him to comment on the doctor's findings. Just asking him as to whether he agrees or disagrees with it, that's all.

The judge, The objection is sustained.

My Lawyer,, Judge , this is not being offered as hearsay. It's being offered as to whether he agrees or disagrees with it.

The judge, I heard what you said. He objected.

My lawyer, And it was also part of the record that they ruled on when they denied his benefits.

The judge, As I indicated before, this is a de novo hearing. I don't have those records. I may never see all of these records unless-- they come in some other way through testimony or otherwise.

The objection is sustained.

My lawyer,, Dr, in the course of your treating this patient, were you furnished any of the doctor's reports from the workers
compensation board doctors that examined him?

My Doctor, Yes.

My Lawyer, And this is contained as part of your work record and part of the case and the treatment of this patient?

My Doctor, IT's part of his medical record, Yes.

My Lawyer, What report do you have in your file?

Dr, This report ( indicating ).

My Lawyer, May I see it?
And note, judge, he's taking it from his file, not mine.

This is the report from Dr. Raymond Koval that I was referring you to previously. And this is from your file?

Page 42, Line 17.

My lawyer, And do you have an opinion with a reasonable degree
of medical certainty as to whether the reason he cannot do any overhead lifting is due to the accident of March 8, 1996?

Dr, YES. That it is.

My Lawyer, And what do you base that opinion
on?

Dr, That according to the patient he denied any prior history of shoulder injury or pain. That he was able to do these overhead lifting activities prior to the injury. And that he had a rotator cuff tear which does lend itself to him having had a traumatic occurrence.

Page 44, Line 23.
My lawyer, Now, Doctor , do you have an opinion at this point in time with a reasonable degree of medical certainty as to whether he is physically Incapacitated for performing his duties as a custodian?

Dr, I feel that it is.

My Lawyer, And is that opinion based upon the accident that he sustained on March 8th, 1996?

Dr, I feel that it is.

My Lawyer, Now , Doctor, I want to show you copies of your office notes and ask you if those are actual copies of your notes.

Page 41, Line 8.

My Doctor is still testifying, the only thing I am going to print are his dates, and what he has to say. To my lawyer.

March 12, 1997.
Dr. Avoid overhead lifting. Patient is currently totally disabled from any overhead lifting at work.

May 28, 1997.
Dr. He is not clear for any workdealing with any overhead lifting.

Aug 29, 1997.
Dr. Patient will be unable to return to work I feel which would entail overhead lifting but is capable to do desk work.

My Lawyer, Now, you've treated the claimant Aug 27, 1997
through to 1999. Has your opinion changed at all regarding whether this gentleman can do any overhead lifting?

My Doctor, No.

My Lawyer, And what is your opinion still?

Dr, THAT HE CAN"T

Page 39, Line 2.

My Doctor, This was the first office visit, status post the MRI of 5-25-of 1989.

State Lawyer, And on that day , did you have an opinion with regard to whether this gentleman can do lifting?

Dr, Yes. Avoid heavy lifting on a permanent basis.

State Lawyer, Now, had you, previously to March -- May 25, 1999 commented in your exam's and office notes when you examined the applicant as to whether he could do lifting or whether he could work as a custodian or had any other recommendations?

Dr, Well, I see on-- oh, 3-31-1998 avoid overhead lifting.

State Lawyer, How, about on March 20, Dr. 1998.

Dr, #-20-1998, permanent disability left shoulder for overhead lifting. He cannot return to work as a custodian at this point but is clear for sedentary work as he is right -handed.

State Lawyer, Now, Doctor, did you also see him on August 3rd ,1999?

Dr, Yes.

State Lawyer, Did you find any atrophy at that time when you examined him?

Dr, Yes.

State Lawyer, And this is almost three years-- more than three years after the accident: is that correct ?

Dr, Yes.

State Lawyer, At that time, did you discuss any possible further surgery with the applicant ?

Dr, Well, as I noted previously, this was after that second MRI , and certainly I could be wrong and there might be somewhat of a recurrent tear, and as much as revision open--
surgery with a rotator cuff is even less reliable, if he was sufficiently symptomatic I would discuss the revision and repair, going in again and looking at the cuff, and if I see a tear re-repairing it and cleaning it up again, it would have to be discussed.

PAGE 32, LINE 10.

State lawyer, Doctor, Did you have any estimations at that time as to what the size of the rorator cuff tear was ?

Dr, Moderate, I would call it.

State Lawyer, That's fair. Did there come a time when you did perform surgery on the applicant ?

Dr, Yes, I did it on Nov 18, 1996.

State Lawyer, And what type of surgery was performed ?

Page 33, Line 3.

Dr, I did a left shoulder open acromioplasty distal clavicle excision, primary repair of rotator cuff/ supraspinatus tendon tear off the greater tuberosity with four harpoon sutures.

State Lawyer, Now, Doctor, for my edification and knowledge, what type of-- is that a type of surgery with an arthroscope or is it--

Dr, No.

State Lawyer, The incisional type.

Dr, The incisional type.

State Lawyer, So we're not talking about any plain arthroscopic surgery here ?

Dr, No.

State Lawyer, This is a surgery where he actually was cut ?

Dr, Yes.

State Lawyer, Now, at the time of the surgery, were you able to tell the size of the rotator cuff tear?

Dr, Yes, It was four centimeters.

State Lawyer, Now , being a layperson, could you tell us, is that small, medium, large?

Dr, I would call it moderate to large.

Page 35, Line 8.

State Lawyer, Now , was another MRI performed after the surgery--

Dr, Yes, On May 20, 1999. I also felt, x-raying him, that he had some uprighting of the humeral head which means it's going onto what's called cuff tear arthropathy or becoming somewhat arthritic. That plus the scar tissue in the shoulder, I felt was the major problem of his-- his major problem in the past year. And the fact that he never really regained strength which is not unusual after rotator cuff surgery. It's done for pain, not for strength.

So my initial post MRI plan was not to reoperate on him. However, since he was so weak I ordered emg nerve conduction studies to see whether that original impression of suprascapula nerve entrapment was the case. And they came back normal. His nerve was fine meaning that the weakness was solely caused by this rotator cuff tear. I gave him cortisone, and continued physical therapy.

First on page 4, line 17. Of part 2, Judge Doyle, Say's that I
said ?
My Doctor gives Testimony, Page 27, Line 5.

My Lawyer, Doctor, Could you please give us your medical school and year of graduation?

Dr, Cornell, 1980.

My Lawyer, And could you give us the year, please, that you were admitted to practice medican in the State of New York?

Dr, 1981.

My Lawyer, And do you specialize in any particular field of medican?

Dr, Orthopedic Surgery.

My Lawyer, And how long have you so specialized ?

Dr, Fourteen years.

My Lawyer, And do you belong to any medical associations or--

My Doctor, A fellow of the American Academy of Orthopedic Surgeons. I'm in the New York State- Medical Society. Thats basically it.

My Lawyer, Now, Doctor, in the course of your practice, did you examine and treat the applicant?

State Lawyer, Can I have -- briefly inquire of the doctor's qualifications ?

The judge, Sure.

State lawyer, Doctor, are you board certified in orthopedics ?

Dr, Yes.

State Lawyer, Okay, and when did you get your board certification ?

Dr, 1988.

State lawyer, Okay, no further questions.

MEDICAL'S OR SURGICAL REPORT'S, EVEN THOUGH HE TESTIFIED IN THE THIRD HEARING THAT HE HAD, AND AGAIN IN THE THIRD HEARING, HE TESTIFIED THAT HE NEVER SAW ANY SURGICAL OR MEDICAL REPORTS BEFORE HE EXAMINED ME. WAS THAT FAIR AND PROPER. >>

Page 24, Line 3.
Hearing Judge, Sir, In your own opinion, tell us whether any of the items you described to us, the type of work you did, that you feel you cannot do at this point in time?

Myself, Well, for one thing, I can't be trusted to work with somebody, because I don't know when I'm going to let go of something. NOT THAT I DON"T HAVE A GRIP--

The judge, I don't understand what you mean by let go.

Myself, If I'm working with somebody carrying something, the pain in the shoulder-- if I'm holding it close, it's not so bad, but if I-- if he's got to depend on me to move it a certain way, move my shoulder a certain way while I'm carrying it.

The judge, All right. Sir, let me ask this, and you can answer yes or no to the questions, in your own opinion, can you be on a ladder changing light bulbs overhead?

Myself, NO I CAN't.



One was named Finding of fact and Conclusions of law. This one I am calling Part One.

The other one was named Decision and Determination. From the hearing officer James F. X. Doyle.
THIS ONE I am calling Part Two.>

From Part Two, Page 4, Line 17.
Hearing Judge, James F.X. Doyle.
According to the applicant, he cannot now perform the duties of a night Custodian, He claims to not have a strong enough grip in his hand and frequently lets things go. Because of this, he cannot lift garbage cans.

Page 8, Line 11.

My Lawyer, But these were used in the evaluation by the Comptroller as to whether he was entitled to these retirement benefits or not.

Line 21.
State Lawyer, Okay. I will object to those documents being introduced into evidence. They're hearsay documents.

Under the regulations, the applicant could either choose the medical records method of presenting his evidence or bring in a medical witness.


Line 20.
The judge, This is a denovo hearing. Whatever happened before has nothing to do with this. What they did has nothing to do with this proceeding.

Page 40, Line 2. First Hearing.
State Lawyer, Be that you have seen other doctors and you may have their reports there. However, those doctors may not be the same doctors that we have in our medical reports, and if you have opted to proceed on the medical records which were before the medical board at the time that this initial determination was made, then you really have no other opportunity to present additional evidence.

SECOND HEARING Case # 98-0648. Reg # 3583601-4.
Jan 24,2000.
At the Hearing.
Myself.
My Lawyer.
MY Doctor, That did the operation.
State Lawyer.
New Hearing Judge.

Page 3, Line 8.

State Lawyer, At the prior hearing before Judge Pudalov, the preliminary jurisdictional exhibits were introduced in this matter and then the matter was adjurned, I believe, so the applicant could consult with an attorney or retain counsel at that time.

State Lawyer, Your Honor, have you received copies of the transcript in the prior--.

The judge, NO- ??

Page 6, Line 16.

My lawyer, Before we start, I note in reviewing the minutes of the hearing of May 13, 1999 there was some discussion about medical records that my client had sent up to the retirement system which were part of the initial determination and therefore part of the record. When this was done, it was apparently done over a TV hookup. And it was some question as to what was part of the record and what was not part of the record.

Before we start, I would like to know if you do have the medical records that were part of this record and were used in coming to a determination denying him his benefits.
page 16, line's 13 to 19.>

State Lawyer, I do have them.

Line 24,
My Lawyer, Okay. I take it these are in evidence.

Page 8, Line 2.
State Lawyer, Ther're not in evidence.

At the last hearing I believe the applicant was undecided whether or not he would proceed on the medical records method of presenting evidence or in fact call in a doctor. So much of the transcript is explaining that, the choice he had.

line's 15 to 25.>

I did receive the 56 pages of medical evidence, and like I said at the hearing, all the Doctors that I saw were in it.

The state lawyer just didn't want them in evidence, I think that's called hiding the evidence.

The first Doctor I saw, was on page 17, 18, and 20. He was Doctor Theobald Reich, M.D.

The Doctor that did the Operation, was on pages,22 to 30.

Doctor Raymond Koval, was on pages, 48 to 50.

Doctor Arnold Illman, was on pages, 51 to 54.

Now was that fair and proper, Next is the second hearing, is that one going to be fair or proper.

This is the letter that had the honorable hearing judge all confused. He wasn't confused he just new when to stop reading.

Dated Oct 28,1998

TO The New York State & Local Retirement System

Gov Smith State Office Building.

Albany , N.Y. 12244

Attention: Mr. Peter J. Buckley

Dear Mr. Buckley:
The applicant was scheduled for an appointment
in our office today. He was not seen because I felt it would be a conflict of interest to resolve a retirement board problem, as I am a consultant for the retirement systems.

Very Sincerely Yours,
Dr. Aronold M. Illman, M.D.

I was sent to see this Doctor, on Feb 27, 1997
By my jobs Insurance Co.

His findings.
Work Status:
He is capable of returning to a sedentary job
which he just does desk work at this point.

Then Again I was sent to see this same Doctor, On July 9, 1997. His Findings.

Return To Work:

He is employed as a working custodian and therefore must do overhead lifting ect. He would be not capable of carrying out this type of work but if desk work were available for him he could handle this quite easily.

This Doctor was not retired from doing surgery, at the time of my exam.

PAGE 47, line 9.



The judge, The question I have at this point is the applicant has what appears to be some medical records as well as some communications from the retirement system. would it be imprudent if he sent those to see if it does or does not apply?

State Lawyer, With respect to the medical records, the applicant would not have the ability to introduce those other medical records. I'm not sure I understand the question.

The judge, He has what appears to be-- it's confusing because there are some communications here addressed to the retirement system dated Sept 5, 1998, and then there is--

PAGE 48, LINE 2.
Another letter from a Mr. Illman to the retirement system indicating that he can't appear because he would be in conflict since he does testify. Then we have something from Dr. Coval also which may be to the retirement system. I don't know, but I don't know where these things emanate from. It's quite confusing. However, let's leave it at where we finally agreed.

PAGE 46, LINE 3.

State Lawyer, Your Honor, I just have some closing remarks to place on the record.

The retirement system will forward a copy of the medical records to the applicant and to your Honor.

The retirement system will forward the records to you so that you could review them, and we'll also forward a copy of the records to you and you could make a better decision or a more informed decision on how you want to proceed.

Your Honor, I would ask that you direct the court reporter to transcribe the minutes from today's proceeding and to forward the original of the minutes along with the exhibits to the retirement system, a ccopy for the applicant at his current address and a copy for your- Honor.

THE judge, It is so directed. Subsequent thereto, this matter will be set down for a further hearing upon notice; is that correct?

State Lawyer, That's correct , your honor.

PAGE 44, LINE 22.

Hearing Judge, I Think I have made it apparently clear on any number of occasions during this proceeding, and I would
be inclined to -- direct that this matter be adjourned so that you could examine the medical records that was the basis of the determination. Do you
understand that?

Myself, Yes.



Hearing Judge, And again Sir, if you have additional medical documents or records, you could bring doctors in that will support those documents. You just can't add them to what we have presently.

Myself, Handing The Hearing Judge another letter, Could you take a fast look at that?

The Judge, This is your letter.

Myself, To the New York State Disability.

The Judge, There's confusion about medical records. I think we should just go along pretty much on the basis of adjourning this case and sending him the files that you have.

If he has additional medical records, I think you've made it clear as to how he--PAGE 46, LINE 2.-- could proceed.

Anything else?

PAGE 43, LINE 3.

Hearing Judge, However , We can't disregard certain procedures. It would appear to me, Talking to the State Lawyer, although you alluded to it, that a copy of the medical recoprds that the system has perhaps should be
presented to the applicant, and if he has any other claim about additional records, then I think they can be explained to him at that time that it was not available or it was available.
Changes at the second hearing.> I'm not sure, but I think we're going no place at this juncture. I'm sort of inclined to think that we should adjourn this so that he has a copy of
all of those medical records that you have. What is your position on that?

State Lawyer, Your Honor, I would be more than happy to adjourn today's hearing so that the retirement system can forward a copy of the medical records which the medical board used to base their initial determination on to afford
the applicant the opportunity to review--
PAGE 44, LINE 2.-- the medical records and decide whether or not he wants to proceed on the medical records method of presenting his evidence or to call in a doctor to testify
to the treatment that the doctor rendered for the applicant.

If the applicant opts to proceed by bringing in a medical witness, then I would request to have system's exhibit 4 withdrawn from evidence under the rules and which govern these proceeding. I believe it's title two, part 317 of the New York, codes, rules and regulations. The applicant has-- he could proceed on the medical records or bring in a doctor.

One or the other, not both, but I would be willing to adjourn today's hearing to forward the medical records so the applicant can make a more informed decision of the method to
present his evidence.


? WHEN WAS SYSTEM'S EXHIBIT PUT INTO EVIDENCE??>

PAGE 41, LINE 17.

Myself, But I sent these here in.

Hearing Judge, To who?

Myself, When I received them.

Hearing Judge, To who?

Myself, To the retirement System.

State lawyer, It may be that those

documents were received after the initial determination was
made. March of 1998 I'm not sure when you had--


Hearing Judge, This letter is dated Dec 3, 1997. It appears
from looking at this letter that this was an independent
medical exam.

Myself, I had spoken to a Lynn at civil service disability.
She said her name was Lynn, and she had asked me to go back
to the doctors that you had seen and ask them how they came
to their conclusions, whether you got to pay for it or not.
It's got to come out of your pocket. What I wrote back , I
was examined by three doctors . I had to pay for them.

State lawyer, Sir, I'm going to object to all this going into
evidence.

Hearing Judge, Talking to me, Just a minute. Sir, there
are procedures that we follow , and I think everybody here
is trying to give you--
PAGE 43, LINE 2.
every opportunity because you're not represented by an
attorney.

FIRST HEARING>

Page 40, Line 11.

State Lawyer, The only way that I would allow those documents to come in is if you had these particular doctors come in and testify for you. If you want the opportunity to
review the medical records in the packet of materials, I would be more than willing to adjourn today's proceedings and forward these records to you so that you could review the
records and make a more informed decision on whether or not you want to actually proceed on these medical records.

Myself, How could I go by any other way? If you don't have the doctors there, these are New York State Certified doctors. York State Retirement System.>

State Lawyer, Sir, I don't want to go into a long explanation about this, but those documents would be considered hearsay documents and I will object to them coming into evidence in this proceeding because I don't have the opportunity to cross- examine the persons who made those documents. Those documents that you have in front of you, I can't determine how the doctor made those statements in his or her report.

Without having that opportunity, I object to those on hearsay grounds.

PAGE 38, Line 22.
MYSELF, Do you have anything from Dr. Raymond Coval?These are three Doctors that my jobs insurance sent me to.

Page 39, Line 2.
State Lawyer, Your jobs insurance co may have sent you to their doctors for your workers comp. However , their doctorsare different than the retirement system doctors. They looked at the MRI"S , x- rays and surgical reports > I don't think I have the other report.

HEARING JUDGE, You brought a motion on here that it should not be read or accepted; is that correct ?

State Lawyer, That's correct, your honor.

The impartial judge, The application is granted. It is not part of the evidence,

Myself, But if he has nothing from the doctors that I went to see that were not my doctors , what am I doing here?
IT"S LIKE---

The judge He does have some medical records.

Myself, Do you have anything from dr, Raymond Coval?

State Lawyer, Sir, It may be that you have seen other doctors and you may have their reports there. However, those doctors may not be the same doctorsthat we have in our medical reports, and if you have opted to proceed on the medical records which were before the medical board at the time that this initial determination was made, then you really have no other opportunity to present additional evidence.
SAY THEY DON't HAVE THE DOCTORS REPORTS, SO THAT MAKES IT SO? YES THEY DID HAVE THEM, MORE ABOUT THAT LATER.>

Page 36, Line 14.
STATE LAWYER, Did you ever go back to work?

Myself, No, I didn't. He put me out. I went to see the firstdoctor after my doctor, before the operation, on June 5,1996.He had stated it's my opinion that the------

STATE LAWYER, OBJECTION, your honor. I'm not sure if the document that the applicant is holding is actually the document contained in the medical records, and if it's not,I would object to it on hearsay grounds.
If the record is already in the medical records, then I wouldsubmit that it's already in evidence, it speaks for itself and there's no reason for the applicant to read the document.

Myself, Okay. If I can't read what the doctors say, how am I going to-----

State Lawyer, That is the dilemma I presented to you at theoutset of this hearing.
Myself, I'm pretty sure you have the medical records , becausethis is from my job. That is a doctor they sent me to. I didn't pick this doctor out.

State Lawyer, What is the date ?
Myself, Sept 18, 1996.

Hearing Judge, In this letter, he refers -- this is an addendum to the ME report dated June 5, 1996 which is the one you have from his doctor.

State lawyer, I'm going to object to it on hearsay ground.
NEXT- THE TWO DOCTORS THAT PUT ME OUT> >

Page 36, Line 14.
STATE LAWYER, Did you ever go back to work?

Myself, No, I didn't. He put me out. I went to see the firstdoctor after my doctor, before the operation, on June 5,1996.He had stated it's my opinion that the------

STATE LAWYER, OBJECTION, your honor. I'm not sure if the document that the applicant is holding is actually the document contained in the medical records, and if it's not,I would object to it on hearsay grounds.
If the record is already in the medical records, then I wouldsubmit that it's already in evidence, it speaks for itself and there's no reason for the applicant to read the document.

Myself, Okay. If I can't read what the doctors say, how am I going to-----

State Lawyer, That is the dilemma I presented to you at theoutset of this hearing.
Myself, I'm pretty sure you have the medical records , becausethis is from my job. That is a doctor they sent me to. I didn't pick this doctor out.

State Lawyer, What is the date ?
Myself, Sept 18, 1996.

Hearing Judge, In this letter, he refers -- this is an addendum to the ME report dated June 5, 1996 which is the one you have from his doctor.

State lawyer, I'm going to object to it on hearsay ground.
NEXT- THE TWO DOCTORS THAT PUT ME OUT> >

Page 36, Line 14.
STATE LAWYER, Did you ever go back to work?

Myself, No, I didn't. He put me out. I went to see the firstdoctor after my doctor, before the operation, on June 5,1996.He had stated it's my opinion that the------

STATE LAWYER, OBJECTION, your honor. I'm not sure if the document that the applicant is holding is actually the document contained in the medical records, and if it's not,I would object to it on hearsay grounds.
If the record is already in the medical records, then I wouldsubmit that it's already in evidence, it speaks for itself and there's no reason for the applicant to read the document.

Myself, Okay. If I can't read what the doctors say, how am I going to-----

State Lawyer, That is the dilemma I presented to you at theoutset of this hearing.
Myself, I'm pretty sure you have the medical records , becausethis is from my job. That is a doctor they sent me to. I didn't pick this doctor out.

State Lawyer, What is the date ?
Myself, Sept 18, 1996.

Hearing Judge, In this letter, he refers -- this is an addendum to the ME report dated June 5, 1996 which is the one you have from his doctor.

State lawyer, I'm going to object to it on hearsay ground.
NEXT- THE TWO DOCTORS THAT PUT ME OUT> >

Page 36, Line 14.
STATE LAWYER, Did you ever go back to work?

Myself, No, I didn't. He put me out. I went to see the firstdoctor after my doctor, before the operation, on June 5,1996.He had stated it's my opinion that the------

STATE LAWYER, OBJECTION, your honor. I'm not sure if the document that the applicant is holding is actually the document contained in the medical records, and if it's not,I would object to it on hearsay grounds.
If the record is already in the medical records, then I wouldsubmit that it's already in evidence, it speaks for itself and there's no reason for the applicant to read the document.

Myself, Okay. If I can't read what the doctors say, how am I going to-----

State Lawyer, That is the dilemma I presented to you at theoutset of this hearing.
Myself, I'm pretty sure you have the medical records , becausethis is from my job. That is a doctor they sent me to. I didn't pick this doctor out.

State Lawyer, What is the date ?
Myself, Sept 18, 1996.

Hearing Judge, In this letter, he refers -- this is an addendum to the ME report dated June 5, 1996 which is the one you have from his doctor.

State lawyer, I'm going to object to it on hearsay ground.
NEXT- THE TWO DOCTORS THAT PUT ME OUT> >

Still First Hearing.

Page 17, Line 2.

State lawyer, If you opt to rely on the medical records method of presenting your evidence, you don't get to then bring in a medical witness, okay?

Myself, I understand.

State lawyer, Unfortunately you haven't had the opportunity. Most times the exhibits make it to the video conferencing site prior to the hearing and you could review these records prior to deciding whether or not you want to proceed on the
medical records.

Myself, I'm pretty sure I have them.

Hearing Judge, You presently have the medical records in your possession, I gather.

Myself, Yes. I'm pretty sure I do.

Hearing Judge, You still wish to proceed on your own without counsel or a doctor; is that right?

Myself, Yes.

Page 20, Line 11.

State lawyer, What I would do now is offer the 56 pages, give or take four or five pages, into evidence as system's exhibit 4.

Myself, Are they the doctors that I've seen or the medical board doctors from Albany?

State Lawyer, It will be both.

Myself, Because I didn't see those records.

State Lawyer, You've seen your separate own doctor's records?

Myself, Yes. There were doctors that I was sent to by civil service that I went to see.

Still First Hearing.

Page 17, Line 2.

State lawyer, If you opt to rely on the medical records method of presenting your evidence, you don't get to then bring in a medical witness, okay?

Myself, I understand.

State lawyer, Unfortunately you haven't had the opportunity. Most times the exhibits make it to the video conferencing site prior to the hearing and you could review these records prior to deciding whether or not you want to proceed on the
medical records.

Myself, I'm pretty sure I have them.

Hearing Judge, You presently have the medical records in your possession, I gather.

Myself, Yes. I'm pretty sure I do.

Hearing Judge, You still wish to proceed on your own without counsel or a doctor; is that right?

Myself, Yes.

Page 20, Line 11.

State lawyer, What I would do now is offer the 56 pages, give or take four or five pages, into evidence as system's exhibit 4.

Myself, Are they the doctors that I've seen or the medical board doctors from Albany?

State Lawyer, It will be both.

Myself, Because I didn't see those records.

State Lawyer, You've seen your separate own doctor's records?

Myself, Yes. There were doctors that I was sent to by civil service that I went to see.

On Page 15, I found out that the State has 56 pages of medical evidence, I wonder did the doctor the State sent me to see the 56 pages, if what did they send him.


PAGE 15, LINE 11.
STATE LAWYER, I keep forgetting to say, the State lawyer is on video from Albany, and later I found out they didn't tape it. ??

STATE LAWYER, Your Honor, if I may just before the applicant begins to speak, I just want to advise the applicant on the record that the retirement system has medical records on which your initial determination, which is system's exhibit 2 in evidence, was based. These medical records I have here in Albany . Unfortunateely, the exhibits didn't make it down to Hauppauge for today ,, but the medical records comprise 56
pages although some of them are double sided, > so its a little more but approximately 56 pages of medical records.



PAGE 16, LINE 2.
At this hearing , you can proceed to present your evidence on the issue of permanent incapacity in one of two methods. The first is to bring a doctor in to testify about your permanent incapacity and the causal relationship to the
incident of March 8, 1996. Off times , though , that method is prohibitively expensive for applicants as the doctor's time is very expensive and it cost's the applicant a lot of money to bring in a doctor to testify. SO THE RETIREMENT SYSTEM HAS DEVELOPED A REGULATION IN WHICH WE
ALLOW THE APPLICANT TO RELY ON THE MEDICAL RECORDS WHICH WERE BEFORE THE MEDICAL BOARD AT THE TIME THAT THEY RENDERED THEIR INITIAL DETERMINATION.

shell game, now you see it, now you don't. Thats next>

From first hearing.
Page 12, line 23.

State Lawyer, Just to frame the issues for today's hearing,this is an application for Article 15 disabilityretirement which is provided under Section 605 of the retirement and Social Security law. The issue, as it is laid out in the notice, is whether the applicant is permanently incapacitatedfor the performanceof duties.

Section 605, about the SOCIAL SECURITY PART, this is a letterI recreceived from S.S. on June 23, 1997.

This case is before me upon a timely request for a thirdhearing. After careful consideration of all the evidence of record, and for the reasons set forth hereinafter, it isconcluded that a fully favorable decision is warranted.

For the reasons stated above , it is concluded that the claimant has been disabled since November 15, 1996, and based upon the chronicity of his impairments, such disability is reasonably expected to last for a continuousperiod of not less than twelve months therefrom.

FINDINGS: The claimant has met the disability insured status requirements of Title two of the Social Security Act atall relevent times.

Now that is Four Doctors that said, I can't go back to work. One From Social Security.
Two from workman's compensation.
And the Doctor, That did the Operation on my shoulder. Now I am not a poker player, but I think that's called four Aces.

First hearing.
May 13, 1999.
Reg# 3583601-4.
H.C. # 98-0648.

In Attendance.
State Lawyer.
Hearing Judge for state.
My self.

Page 3 Line 6. It's being held pursuant to section 74 of the retirement and Social Security law.?
Page 2. For the reasons stated above , it is concluded that the claimant has been disabled since Nov 15, 1996.

Page 4, The judge, I see that you are appearing here without the assistance of counsel; is that correct?
My self , Yes.

The judge ; That's your right to do, to have an attorney to represent you or to appear pro se, without an attorney.
Is it your intention , sir , to have an attorney to represent you? If so , I would be receptive to granting you an adjournment to get an attorney.

my self, no, no, please.
I went to the hearing, with reports from three Doctors,that stated , I can't work with my left hand.But they only let me use the Doctor that did the operation.>

DOCTORS THAT FOUND ATROPHY.

Befor the operation.

JUNE 5, 1996.

My jobs insurance co. sent me to see this Doctor. Physical exam. The contour of the shoulder girdle is normal. There is a suggestion of a slight atrophy of the supraspinatus muscle on the left side.


Dec 3, 1997.

Over one year after operation.
Physical exam: Exam today reveals a 3" anterior scar of the left shoulder. There was VISIBLE ATROPHY OF THE DELTOID AND THE INFRASPINATUS MUSCLE.

JULY 13, 1998.

STATE DR, I HAVE ALSO REVIEWED MEDICALS PROVIDED AND HAVE TAKEN THEIR FINDINGS INTO CONSIDERATION.
I DON'T KNOW HOW MANY TIMES, I ASKED THE STATE, WHAT MEDICALS DID YOU GIVE THIS DOCTOR..> ?
OH NOTHING ABOUT ATROPHY, IN HIS REPORT.
DOCTOR THAT DID THE OPERATION.

JULY 9, 96.
WEAKNESS OF THE ENTIRE ROTATOR CUFF MUSCULATURE WITH ATROPHY, SUPERSCAPULAR LUMP.

OCT 27, 1998.
HE HAS ATROPHY IN THE AREA OF THE SUPRASCAPULAR FOSSA.

AUG 3, 1999.
THERE IS POSTERIOR SUPRASPINATUS ATROPHY AND TENDERNESS.

JULY 19, 2000.
LEFT SHOULDER HAS CONSIDERABLE ATROPHY OF THE SCAPULA AND DELTOID,, ROM O- 160 DEG. WITH PAIN AND CREPITUS.INT. AND EXT. ROTATION APPROX. 0--60 WITH PAIN AND CREPITUS. STRENGTH 4/5, NVI . TENDERNESS OVER SUPERIOR/MED. BORDER OF SCAPULA AT SCAPULAR NOTCH.IMP; LEFT SHOULDER NERVE INJURY W/ATROPHY SP ROTATOR

CUFF REPAIR AND ACROMIAL DECOMP. AND CLAVICULAR
EXCISION. NEXT FIRST HEARING

Continued From 8-21-06.

State doctors Testimony.

Page 20, Line 13.

My Lawyer, dr, Canyou tell us as you sit in this chair today
exactly what type of surgery was performed on this patient?

dr, He had an acromioplasty. A distal clavicular resection
and a primary rotator cuff repair which was a tear from the
greater tuberosity.

My Lawyer, Do you know the size of the tear?

dr, NO.

My Lawyer, Do you know whether the tear was on both sides
or not?

dr. No. I wasn't there.

My Lawyer, Does it make any difference to you
how big the tear was and whether it
was on both sides?

dr, It would make no difference in regard to the exam.

Page 22, Line 20.

My Lawyer, As you sit here today , you have no idea of the
size of the tear in this man's rotator cuff.

dr, I can't tell you that.

Page 23, Line 23.

My Lawyer, Do you think an orthopedic Doctor who has
examined this patient over 28 times in the course of three -
and a half years might be
more knowing than you who examined him one time without
being able to tell us of the size of the tearor exactly
what surgery was performed upon him or what his treatment
has been subsequent and prior to this injury?

State Lawyer, Objection. He's asking the doctor to
speculate.

The Hearing Officer, The doctors here as an expert.
Overruled.
Page 28, Line 22

My lawyer, dr, as a generalization with regard to
rotator cuff patients that have surgery such as this type-- and this was not an arthroscopic surgery?

Page 29, Line 2.

dr, No. It was an open repair.

My Lawyer, Do you usually recommend that they do a lot
of overhead thing's with their arms?

dr, If they have a good repair , yes.

My lawyer, When you saw this gentleman, did he complain
of pain?

dr, The only thing he complained of is he would
experience pain with carrying and lifting of heavy
objects.




DID THE DR, PERJURE HIMSELF, WHEN HE SAID HE SAW MEDICALS

WHEN HE DIDN'T.

Taken From The Transcript Of April 13, 2000.

The State doctor Gives Testimony.

New York State Retirement System. REG# 3583601-4

In Attendance. H.C. 98-0648

Lawyer for the Retirement System.

Hearing Judge for the Retirement System.

doctor for the Retirement.

My Self.

My Lawyer.

Page 3,Line 13.
The hearing officer, Swear the doctor in.

Page 3, Line 24.

State Lawyer, Are you licensed to practice medicine in

the State of New York.

Page 4, Line 2,

Yes. I have been since 1972.

Page 5, Line 12.

My Lawyer: dr. Sultan, are you on the staff of any
hospitals in the area? dr. Presently , NO.

My Lawyer: Can you tell us why?
dr. I retired from surgery in 1992 and I just,do non- operative orthopedic work.

Page 6, Line 4.

My lawyer: If you have to have somebody have surgical operations , do you refer them to another Doctor?
open, yes. Closed I Do.

Page 11, Line 2.

Hearing Officer: dr. Did you have occasion to review a job description of the applicant,
dr. I don't have a recollection for that, as I had sent back all of the medical records, the State gave me.

Page 16, Line 18.

My Lawyer: dr, I notice -- and I know you and your reports-- you file these type of reports in these cases and in workers ' compensation cases . Apparently in this case , you were furnished no medical reports regarding this
patient when you saw him in July of 1998. dr. I was provided with a folder of records, that I sent back.

Page 19, Line 15.

My Lawyer, dr, Could you show me from your own report where you have any statements of any reports from any doctors?
dr, I cannot show you that.
My Lawyer: Is it fair to say that you never were furnished with any reports?
dr, no, It's not fair to say that because I did.



Page 20, Line 4.

My Lawyer: Where did you state in your report that you have reviewed records and sent them back?

State Lawyer, He's already answered , but whatever.

SAME PAGE, LINE 10.

MY LAWYER, dr, were you ever furnished the surgical report on this patient???

dr, AT THE TIME OF MY EXAM NO.

THE DOCTOR THE STATE SENT ME TO SEE.



I called this doctor small d, and asked him if he wanted me to bring any other reports, besides the MRI'S- X-RAYS, and surgical reports, before the exam.



He told me that he has everything that he needs, don't bring anything, just be on time.



Date of exam.

July 13,1998.

REG# 35836014.





The day of the exam I took all the papers I had with me, when he saw the packet, he asked me whats that, I told him all the surgical reports. Then he told me to leave them outside, I told you I have everything I need. His Findings:



In addition to the clinical exam, I have also reviewed medicals provided and have taken their findings into consideration. I find nothing wrong, He can go back to work.



Very Truly Yours

LEON SULTAN,M.D.-P.C.

Cos-111932-0 Diplomate, American Board of Orthopaedic Surgery



After this I had three hearings, and an Article 78 in Albany, that they tryed to stop. NONE WERE FAIR OR PROPER. Next I am going to skip, to the third hearing, because thats when their doctor small d gives testimony.

Second Doctor



Date Dec 3, 1997.



C/N: 96024.



E/N: 005203



Doctors Work findings.



Work Capacity: I feel that he can do sedentary type of occupation, but not be able to go back and do any occupation that would require lifting or repeated motion of his left shoulder above shoulder level.

Raymond Koval, M.D.

Diplomate, American Board of Orthopedic Surgery