Claim of Diemond v. Ithaca Fire Department

Appeal by the Ithaca Fire Department, a volunteer fire company, and its insurance carrier from a decision of the Workmen’s Compensation Board holding that claimant’s claim was properly indexed as a claim under the Volunteer Firemen’s Benefit Law. On January 8, 1969 claimant, a paid city fireman of the City of Ithaca, was injured while acting in the capacity of a volunteer fireman for the respondent Ithaca Fire Department. Subsequently, claimant filed for benefits under the Volunteer Firemen’s Benefit Law. The board upheld the indexing of the claim as a volunteer claim and the instant appeal ensued. Appellants assert that because claimant was also a paid city fireman he could not be a volunteer fireman within the meaning of section 3 of the Volunteer Firemen’s Benefit Law, even though at the time of the accident he was serving as a volunteer, citing several opinions of the State Comptroller (1969 Op. St. Compt. 331; 1963 Op. St. Compt. 336; 1962 Op. St. Compt. 429; 1960 Op. St. Compt. 487). These opinions not only do not support appellants’ position on the facts of the instant case, but *980in his 1969 opinion (1969 Op. St. Compt. 331, 333) the Comptroller concluded that “if, as a matter of fact, it can be determined that the injury in question occurred while the individual was acting as a volunteer fireman, then he would be entitled to benefits under the Volunteer Firemen’s Benefit Law” and all parties stipulated that claimant was acting in the capacity of a volunteer when he was injured. Moreover, we can find no legal or policy reason, as long as the facts support claimant’s status as a volunteer, that claimant should be denied a remedy under the Volunteer Firemen’s Benefit Law. Decision affirmed, with costs to the Workmen’s Compensation Board. Herlihy, P. J., Greenblott, Simons, Kane and Reynolds, JJ., concur.