Opinion
October 27, 1967
Petitioner in this article 78 proceeding seeks a review of the Comptroller's denial of her widow's claim to accidental death benefits under section 61 Retire. Soc. Sec. of the Retirement and Social Security Law. Petitioner's husband, a village police officer, while struggling to make an arrest, fell and struck his head on an icy sidewalk. He died soon thereafter. A fellow officer, who was assisting the decedent, testified that just before the decedent fell backwards, he said, "I'm falling, I'm falling". Petitioner's expert, a surgeon who was present at the autopsy as coroner's physician, testified that death resulted from head injuries. However, he also testified that contributing causes were diabetes and local arteriosclerosis. The coroner's report, based on the autopsy protocol prepared by the patholgist performing the autopsy, and the report of the coroner's physician, concluded that death resulted from natural causes, including diabetes and liver and heart changes. Respondent's expert, a specialist in internal medicine, including cardiovascular disease, based his judgment on the autopsy protocol, the report of the coroner's physician and the testimony of the fellow officer. He concluded that the petitioner's husband died of heart disease with coronary sclerosis, precipitated by the struggle or excitement of the arrest. Both experts agreed to the high correlation between diabetes and fatal heart attacks. The Comptroller denied the claim because death was "not the natural and proximate result of an accident, but was due to natural causes associated with pre-existing arteriosclerotic heart disease and coronary sclerosis". Petitioner argues that the Comptroller's determination was not supported by substantial evidence and that allowing him to define accident is an unconstitutional delegation of legislative power. We do not agree. The only real question is the sufficiency of proof of the cause of death. This is a factual question which the Comptroller determined was heart disease (Retirement and Social Security Law, § 74) and upon the record before us this decision is supported by substantial evidence. Finding death was caused by heart disease, the Comptroller's conclusion that this was not death by "accident" as required by section 61 Retire. Soc. Sec. of the Retirement and Social Security Law, was certainly not an unconstitutional rewriting of the section. If reasonable minds may differ on what is an accident, the Comptroller's judgment must be accepted ( Matter of Croshier v. Levitt, 5 N.Y.2d 259; Matter of Demma v. Levitt, 11 N.Y.2d 735). Determination confirmed and petition dismissed, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Aulisi, J.