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Tuesday, October 11, 2016

Evidence that the firefighter suffered disease or malfunction of the heart as the result of his or her duties and activities required to trigger the statutory presumption set out in the Volunteer Firefighters' Benefit Law



Evidence that the firefighter suffered disease or malfunction of the heart as the result of his or her duties and activities required to trigger the statutory presumption set out in the Volunteer Firefighters' Benefit Law
Huffer v Nesconset Fire Dist., 2016 NY Slip Op 06535, Appellate Division, Third Department

§61.1 of the  Volunteer Firefighters' Benefit Law provides that "[a] claim for benefits for the death or disability of a volunteer [firefighter] 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 [firefighter] suffered disease or malfunction of the heart or of one or more coronary arteries which caused the disablement or death of the volunteer [firefighter], and that such disease or malfunction resulted from the duties and activities in which the volunteer [firefighter] was engaged."*

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, [Huffer] served as a volunteer firefighter with the Nesconset Fire District and worked as a first responder on Wednesdays and Thursdays. On Wednesday, February 26, 2014, Hufferresponded to two calls during the day and also attended drill that evening at the firehouse. Huffer then returned home, went to bed and died in his sleep early the next morning of hypertensive and atherosclerotic heart disease.

Huffer’ widow, Kathleen Ross [Claimant], filed a claim for workers' compensation death benefits. Following a hearing, the Workers' Compensation Law Judge denied her claim, finding that there was insufficient evidence as to the nature and extent of  Huffers’ activities on February 26, 2014 to find that his death was related to his volunteer firefighter duties. The Workers' Compensation Board affirmed the decision of the Workers' Compensation Law Judge and Claimant appealed.

The Appellate Division, citing the provisions of §61.1 Volunteer Firefighters' Benefit Law, affirmed the Board’s determination, explaining that neither Claimant’s testimony nor the testimony of doctors established the duties and activities that  Huffer undertook during the two emergency calls or at drill on the day before he died.**

Claimant testified that she was unaware of the specific nature of the calls to which Huffer responded or the nature of the drill. In addition, said the court, “the record establishes that the opinion of Lester Ploss, a physician who reviewed [Huffer's] medical records and opined that [Ross’] 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 [Huffer] engaged in at the emergency calls and at the drill.

Considering the lack of evidence regarding the duties and activities in which  Hufferhad been engaged, the Appellate Division held that the requirements for the applicability of “the statutory presumption under Volunteer Firefighters' Benefit Law [§61.1] was not met.”

Accordingly, the court ruled that “the Board's decision denying [Claimant’s] death benefit claim will not be disturbed.”

* N.B.As currently enacted §61 of the Volunteer Firefighters' Benefit Law is “repealed effective July 1, 2020.”

** The Appellate Division noted that “No testimony or evidence was provided concerning Ross’ “responding to two calls during the day and also attending drill that evening] by any fire department officials”

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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