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Survivor ruled not entitled to an increased statutory death benefit

By Harvey Randall, Esq.

Survivor ruled not entitled to an increased statutory death benefit
Matter of Arlene Lustyik v Village of Tarrytown, 41 A.D.3d 1066, Appellate Division, Third Department

In 1987, a volunteer firefighter suffered a work-related myocardial infarction and was subsequently classified as permanently totally disabled. In April 2002, he died as a result of cardiac arrest. It was determined that his death was causally related to the injury incurred while serving as a volunteer firefighter.

The firefighter?s surviving widow, Arlene Lustyik, filed a claim for death benefits and a Workers? Compensation Law Judge?s award included a lump-sum death benefit of $50,000 pursuant to Volunteer Firefighters? Benefit Law former Section 7(2).

The Volunteer Fire Department?s workers? compensation carrier objected to this award, contending that former Section 7(2) specifically limited such benefit to $10,000. The Workers? Compensation Appeals Board agreed and reduced Lustyik lump-sum death benefit award to $10,000. Lustyik then appealed the Board?s decision.

The Appellate Division sustained the Board?s determination, holding that:

When this claim arose, Volunteer Firefighters? Benefit Law former Section 7(2) provided for a $50,000 lump-sum death benefit to surviving spouses with the express proviso, however, ?that nothing herein shall be construed as affording a greater benefit for those volunteer [firefighters] injured prior to the effective date of this act [i.e., May 9, 1998], however the spouse . . . of such [firefighter] shall continue to be eligible for a benefit in the sum of [$10,000]?.?[1]

As Lustyik was injured in 1987, the Appellate Division concluded that this limitation controlled and thus the award to be made to his surviving spouse pursuant to Section 7(2) of the Volunteer Firefighters? Law was $10,000.

[1] Volunteer Firefighters? Benefit Law former Section 7(2); [see Laws 2002, Chapter 139, §1; Laws 1998, Chapeter 415, §3]. Currently pending before the 2007 Legislature is a bill, Assembly 6448, An act to amend the Volunteer Firefighters` Benefit Law, increasing the funeral benefits and lump sum death benefits to provide, among other things, a lump sum payment of $100,000 to a surviving spouse and a lump sum of payment of $25,000 to be paid to each surviving child under the age of eighteen.

Full post as published by New York Public Personnel Law on March 31, 2008 (boomark / email).