Mikoll, J. (dissenting). I respectfully dissent.
Unlike the classic conflict in medical opinion on the question of a petitioner’s total disability from work-related accidents, the resolution of which the court leaves to respondent (see, Matter of Cole v McCall, 231 AD2d 775), we are confronted in this matter by a different situation. Respondent, in rejecting the claim for disability retirement, based his determination on the opinion of Neil Lava, a neurologist who found no disability of Kevin J. Coker based on neurological grounds only. Petitioner’s own physician, Anthony Guidarelli, and the City of Schenectady’s police physician, Dominic Belmonte, on the other hand, concluded that Coker was totally and permanently disabled based on orthopedic abnormalities. They found that Coker had permanent alterations in his spine resulting in limited function of the neck, back, both arms and legs, which prevented him from performing the duties of a police officer. Respondent’s decision, crediting the opinion of Lava as opposed to the opinions of Belmonte and Guidarelli, found the latter two opinions to be based on petitioner’s “self-serving claims of subjective symptoms”.
*712Respondent’s determination should be annulled in that it is not supported by substantial evidence and is further compromised by the Hearing Officer’s evidentiary rulings. Addressing first the adequacy of the medical opinion on which the respondent’s determination is based, it is to be noted that Lava conducted a limited physical examination of Coker, of some 45 minutes in duration. It was limited to a neurological evaluation. Lava found Coker to be “neurologically normal”. He, however, candidly admitted the limitations of the examination, indicating that he focused only on his own field of expertise. Lava admitted that he was not competent to comment on whether Coker was disabled from an orthopedic or neurosurgical point of view. Revealingly, he testified that his own limited examination was based on a myelogram conducted in either 1988 or 1991 (he was not permitted by the Retirement System to use such technique to verify Coker’s current situation). Lava testified that no “definite” nerve root impingement was revealed in the test. He verified, however, that various MRIs conducted on Coker indicated diffuse bulging discs in his lumbar area at L3-4 to L5-S1 and the presence of osteophytes (bony outgrowths) at multiple levels in the cervical spine and a slight compression on the ventral sac. It is these manifestations of objective evidence of disability identified by Lava which were relied on by Guidarelli and Belmonte in finding Coker totally disabled and that his disability was work related. Contrary to respondent’s unsubstantiated conclusion that Coker’s complaints were largely subjective, the record discloses to the contrary, that is, that Coker’s complaints were objectively verifiable. The testimony of Lava was inadequate to support respondent’s determination.
Finally, I find that the evidentiary rulings of the Hearing Officer impaired Coker’s right to a fair hearing. Lava testified that he used the report of Daniel Silverman, a neurologist, together with other medical reports, to come to his evaluation of no neurological deficit. When petitioner was foreclosed from cross-examining Lava regarding the accuracy of his assumptions by use of Silverman’s report, Coker’s request to call Silverman in rebuttal was denied by the Hearing Officer. A fundamental requirement of a fair trial includes an opportunity to offer rebuttal. Though in administrative hearings technical rules of evidence need not be met, no essential element of a fair trial can be dispensed with (see, Matter of Sowa v Looney, 23 NY2d 329). In view of the fact that Coker was claiming disability based on orthopedic problems, the interjection by respondent of a neurological basis in disproving disability should have entitled petitioner to address the issue by rebuttal evi*713dence (see generally, Mater of Simpson v Wolansky, 38 NY2d 391, 395).
Accordingly, I would annul and remit for further consideration of petitioner’s application.
Adjudged that the determination is confirmed, without costs, and petition dismissed.