Lees v. Regan

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the Comptroller which disapproved petitioner’s application for accidental disability retirement. Petitioner, while employed as a Nassau County police officer, allegedly injured his back on four separate occasions (Dec. 12, 1966, Feb. 1,-1973, Jan. 1,1975 and Dec. 11,1976), each occurring during the course 674 of duty. In 1978, respondent Comptroller denied his application for accidental disability retirement finding that he was not incapacitated from the performance of his duties. The sole issue in this proceeding is whether the Comptroller’s determination is supported by substantial evidence. Petitioner’s orthopedic surgeon testified that petitioner was suffering from a herniated disc plus degenerative disc disease, with a guarded prognosis, and that he was permanently and totally disabled from the performance of active police duty. Respondent’s medical expert testified that petitioner’s problem was one “of post-trauma and fractures of the vertebral bodies”. He determined that petitioner was not totally disabled and could return to active police duty, with a proviso that recurring backaches would occasionally render petitioner unable to work. It is well settled that the Comptroller is vested with exclusive authority to determine an application for disability benefits, and his evaluation of conflicting medical testimony must be accepted (see, e.g., Matter of Marin v New York State Employees’ Retirement System, 84 AD2d 896; Matter of Cooper v Regan, 84 AD2d 590; Matter of D'Amato v Regan, 81 AD2d 733; Matter of Mathews v Regan, 69 AD2d 970, mot for lv to app den 48 NY2d 610). The instant determination is supported by substantial evidence and must be confirmed. Determination confirmed, and petition dismissed, without costs. Kane, J. P., Main, Mikoll, Yesawich, Jr., and Weiss, JJ., concur.