                          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
                              -2-                522747

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.
                        -3-                  522747

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
