State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 22, 2016 522129 

________________________________

In the Matter of the Claim of 

HALINA RASIEJ, 

Appellant,

v

SYSKA HENNESY GROUP INC. et al., MEMORANDUM AND ORDER 

Respondents.

WORKERS' COMPENSATION BOARD, 

Respondent.

________________________________

Calendar Date: November 15, 2016

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

__________

The Saldarriaga Law Firm, New York City (Victor H.

Saldarriaga of counsel), for appellant.

Conway & Goren, Melville (Mary Stanton Hornung of counsel),

for Syska Hennesy Group Inc. and another, respondents.

__________

Garry, J.P.

Appeal from a decision of the Workers' Compensation Board,

filed February 5, 2015, which ruled that decedent's death did not

arise out of and in the course of his employment and denied

claimant's claim for workers' compensation death benefits. 

Decedent, claimant's husband, was on a business trip when

he suffered sudden cardiac arrest and died in his hotel room.

Claimant applied for workers' compensation death benefits, which

the employer's workers' compensation carrier challenged on the

basis that, among other things, decedent's death was not causally
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related to his employment. A Workers' Compensation Law Judge

denied the claim. The Workers' Compensation Board affirmed and

this appeal ensued.

We affirm. While a presumption of compensability arises

where, as here, an unwitnessed or unexplained death occurs during

the course of employment (see Workers' Compensation Law § 21 [1];

Matter of Schwartz v Hebrew Academy of Five Towns, 39 AD3d 1134,

1135 [2007], lv denied 9 NY3d 807 [2007]), "[t]hat presumption

may be rebutted if substantial evidence demonstrates that the

death was not work related" (Matter of Frederick v Lindenhurst

Union Free School Dist., 66 AD3d 1104, 1105 [2009]). To that

end, irrefutable proof excluding every conclusion other than that

offered by the employer or its carrier is not required (see

Matter of Fatima v MTA Bridges & Tunnels, 106 AD3d 1327, 1328

[2013]; Matter of Hanna v Able Body Labor, 62 AD3d 1200, 1201

[2009]).

Decedent's death certificate indicated that his cause of

death was sudden cardiac death due to coronary arteriosclerosis,

with smoking and hypertension as significant contributing

factors. The cardiologist presented by the carrier reviewed

decedent's medical records and testified that decedent's death

was caused by a preexisting condition of progressive

atherosclerosis, which was totally independent of his work. Such

evidence is sufficient to rebut the presumption of Workers'

Compensation Law § 21, which then shifts the burden to claimant

to demonstrate that decedent's death was causally related to his

employment (see Matter of Puig v New York Armenian Home, Inc., 65

AD3d 1444, 1445-1446 [2009]; Matter of Schwartz v Hebrew Academy

of Five Towns, 39 AD3d at 1135). As claimant did not present any

medical evidence to contradict the findings of the carrier's

medical expert and as indicated on the death certificate, the

Board's decision will not be disturbed (see Matter of Schwartz v

Hebrew Academy of Five Towns, 39 AD3d at 1135-1136). 

Egan Jr., Devine, Clark and Mulvey, JJ., concur.
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ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court