State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 6, 2016 522747 

________________________________

In the Matter of the Claim of 

KATHLEEN HUFFER, 

Appellant,

v

MEMORANDUM AND ORDER

NESCONSET FIRE DISTRICT et al.,

 Respondents.

WORKERS' COMPENSATION BOARD, 

Respondent.

________________________________

Calendar Date: September 12, 2016

Before: Egan Jr., J.P., Lynch, Devine, Clark and Mulvey, JJ.

__________

John F. Clennan, Ronkonkoma, for appellant.

Stewart, Greenblatt, Manning and Baez, Syosset (Thomas A.

Lumpkin of counsel), for Nesconset Fire District and another,

respondents.

__________

Mulvey, J.

Appeal from a decision of the Workers' Compensation Board,

filed October 23, 2015, which ruled that decedent's death was not

causally related to his employment and denied claimant's claim

for workers' compensation death benefits.

Ross Huffer (hereinafter decedent) was a volunteer

firefighter with the Nesconset Fire District and worked as a

first responder on Wednesdays and Thursdays. On Wednesday,

February 26, 2014, decedent responded to two calls during the day

and also attended drill that evening at the firehouse. Decedent
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returned home, went to bed and died in his sleep early the next

morning of hypertensive and atherosclerotic heart disease. 

Thereafter, claimant, decedent's wife, filed a claim for workers'

compensation death benefits. Following a hearing, the Workers'

Compensation Board, affirming the decision of the Workers'

Compensation Law Judge, denied the claim, finding that there was

insufficient evidence as to the nature and extent of decedent's

activities on February 26, 2014 to find that decedent's death was

related to his volunteer firefighter duties. This appeal ensued. 

We affirm. Volunteer Firefighters' Benefit Law § 61

provides that "[a] claim for benefits for the death or disability

of a volunteer fire[fighter] due to disease or malfunction of the

heart or of one or more coronary arteries . . . shall not be

denied provided the claimant introduces evidence which

establishes that a volunteer fire[fighter] suffered disease or

malfunction of the heart or of one or more coronary arteries

which caused the disablement or death of the volunteer

fire[fighter], and that such disease or malfunction resulted from

the duties and activities in which the volunteer fire[fighter]

was engaged." Here, testimony from claimant and the doctors did

not establish the duties and activities that decedent undertook

during the two emergency calls or at drill on the day before he

died. No testimony or evidence was provided in that regard by

any fire department officials. Claimant testified that she was

unaware of the specific nature of the calls to which decedent

responded or the nature of the drill. Furthermore, the record

establishes that the opinion of Lester Ploss, a physician who

reviewed decedent's medical records and opined that decedent's

firematic duties contributed to his death, was based upon a lack

of information, as well as certain assumptions made by Ploss

regarding the specific activities that decedent engaged in at the

emergency calls and at the drill. Given the lack of sufficient

evidence regarding the duties and activities in which decedent

was engaged, the requirements for the applicability of the

statutory presumption under Volunteer Firefighters' Benefit Law

§ 61 was not met (see generally Matter of Machajewski v Town of

Cambria, 89 AD3d 1175, 1175 [2011]). Based on the foregoing, the

Board's decision denying the death benefit claim will not be

disturbed. 
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Egan Jr., J.P., Lynch, Devine and Clark, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court