IN RE: the Claim of Arlene LUSTYIK (2007)

Appeal from a decision of the Workers' Compensation Board, filed February 7, 2006, which reduced a death benefit awarded to claimant.

In 1987, decedent, 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 a cardiac arrest which was determined to be causally related to this injury.  Thereafter, claimant, decedent's widow, filed a claim for death benefits and a Workers' Compensation Law Judge (hereinafter WCLJ) awarded her, as relevant here, a lump-sum death benefit of $50,000 pursuant to Volunteer Firefighters' Benefit Law former § 7(2).  The workers' compensation carrier filed an application for review by the Workers' Compensation Board, contending that the WCLJ improperly granted claimant a lump-sum death benefit in the amount of $50,000 in that Volunteer Firefighters' Benefit Law former § 7(2) specifically limited such benefit to $10,000.  The Board modified the WCLJ's determination by reducing claimant's lump-sum death benefit award to $10,000.  She now appeals.

We reject claimant's argument that the Board erred in reducing her lump-sum death benefit award.  When this claim arose, Volunteer Firefighters' Benefit Law former § 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]” (Volunteer Firefighters' Benefit Law former § 7[2];  see L. 2002, ch. 139, § 1;  L. 1998, ch. 415, § 3).  Since decedent was injured in 1987, this proviso clearly applies, limiting claimant's award to $10,000 (see generally Matter of Mace v. Owl Wire & Cable Co., 284 A.D.2d 672, 675, 727 N.Y.S.2d 487 [2001];  Matter of House v. International Talc Co., 261 A.D.2d 687, 689, 689 N.Y.S.2d 552 [1999] ).

ORDERED that the decision is affirmed, without costs.

CARPINELLO, J.

CARDONA, P.J., MERCURE, CREW III and PETERS, JJ., concur.