State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 22, 2016 522129
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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.
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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