To Be Argued By:
DAVID W. FABER
Time Requested: 30 Minutes
Workers’ Compensation Board No. 2070 8165
Court of Appeals
STATE OF NEW YORK
In the Matter of the Claim for Compensation under
the Workers’ Compensation Law made by
GAUDENZIA HRONCICH,
Claimant-Respondent,
—against—
CONSOLIDATED EDISON COMPANY OF N.Y., INC.,
Employer-Appellant,
—and—
SEDGWICK CLAIMS MANAGEMENT SERVICES, INC.,
Third Party Administrator-Appellant,
—and—
N.Y.S. WORKERS’ COMPENSATION BOARD
and THE SPECIAL DISABILITY FUND,
Respondents.
BRIEF FOR APPELLANTS
d
DAVID W. FABER, ESQ.
CHERRY, EDSON & KELLY, LLP
One Old Country Road, Suite 410
Carle Place, New York 11514
Telephone: (516) 486-4640
Facsimile: (516) 486-7732
STEVEN M. SCOTTI, ESQ.
ASSISTANT GENERAL COUNSEL
CONSOLIDATED EDISON COMPANY
OF N.Y., INC.
4 Irving Place
New York, New York 10003
Telephone: (212) 460-3528
Facsimile: (212) 677-5850
Attorneys for Appellants Consolidated
Edison Co. of N.Y., Inc. and Sedgwick
Claims Management Services, Inc.November 30, 2012
i
DISCLOSURE STATEMENT
Pursuant to 22 N.Y.C.R.R. 500.1(f), the Appellant the Consolidated Edison
Company of New York, Inc. has the corporate parent Consolidated Edison,
Inc. The Affiliates and Subsidiaries of Affiliates are listed as follows:
• Ada Cogeneration Limited Partnership • Flemington Solar, LLC
• BGA, Inc. • Frenchtown I Solar, LLC
• CED 42, LLC • Frenchtown II Solar, LLC
• CED Ada, Inc. • Frenchtown III Solar, LLC
• CED Generation Holding Company II, LLC • Honeoye Storage Corporation
• CED Pilesgrove Holdings, LLC • Lebanon Solar, LLC
• CED Wind Power, LLC • Murray Hill Solar, LLC
• CED/Delta Ada, LLC • Newton Solar, LLC
• CED/SCS Newington, LLC • NUON Trust No. 3
• CEDST, LLC • O&R Development, Inc.
• CES/AEI/OLF Cogeneration, LLC • Orange and Rockland Utilities, Inc.
• Clove Development Corporation • Pike County Light & Power Company
• Competitive Shared Services, Inc. • Pilesgrove Solar, LLC
• Con Edison Leasing, LLC • Project Finance Fund III, LP
• Consolidated Edison Development, Inc. • ROCA Facility Trust No.2
• Consolidated Edison Energy, Inc. • Rockland Electric Company
• Consolidated Edison Leasing, L.L.C. • Rockland Electric Co. Transition
• Consolidated Edison Solutions, Inc. Funding LLC
• Custom Energy Services, LLC • Steam House Leasing, LLC
• D.C.K. Management Corp. • SunAmerica Affordable Housing
• Dartmouth Business Park Solar, LLC Partners 93, LP
• Davids Island Development Corp. • X Holding LLC
ii
TABLE OF CONTENTS
Page(s)
DISCLOSURE STATEMENT …………………………..…………………………i
TABLE OF CONTENTS …………………………..………………………...…ii-iv
TABLE OF AUTHORITIES …………………………..……………………….v-ix
PRELIMINARY STATEMENT ……………………………………...…………1-2
STATEMENT OF JURISDICTION ………………………………………………3
QUESTION PRESENTED …………………………………………...……………4
STATEMENT OF THE CASE ……………………………………………….....4-7
DECISION OF THE WORKERS’ COMPENSATION BOARD …………….…..8
DECISION OF THE APPELLATE DIVISION ……………………..……………9
ARGUMENT …………………………………………………………………..…10
POINT I THE PLAIN LANGUAGE IN WCL SECTION 15 (7)
EXPRESSLY PERMITS APPORTIONMENT IN
DEATH BENEFIT CLAIMS ……………………………………….10
A. Because this case Presents a Pure Question of Statutory
Interpretation, No Deference is Due the Workers’
Compensation Board ………………………………………………..10
B. The Plain Language in Section 15 (7) Expressly Directs
that Apportionment Applies to Death Benefit Claims ……………...11
C. The Board’s Position that Section 15 (7) only Applies to
Death Benefits Where Apportionment is Based on a Prior
Work-Related Disability is a Distinction Unsupported by
the Plain Language of the Statute …………………………….…….13
iii
D. The “Provided, However” Clause in Section 15 (7) was
Enacted in 1915 to Address a Specific Disability Claim
and Did Not Address Death Claims or Intend to Limit
Apportionment in Death Claims ………………………………...….13
E. The Plain Language and Legislative Intent Expressed
in Section 15 (7) Support the Fundamental Principle
Embedded in the Workers’ Compensation Statute,
Expressed Generally in Section 10, that Liability be
Apportioned in Proportion to Causation ……………………………15
POINT II THE APPORTIONMENT TEST REQUIRES THAT
THE PRIOR CONDITION, WHETHER WORK-
RELATED OR NOT, CONSTITUTES A
“DISABILITY IN A COMPENSATION SENSE.” ………………..…18
A. The Test for Apportionment Under WCL § 15 (7) …………………18
B. Prior to July 2005, the Board Applied Section 15 (7)
Apportionment to Disability and Death Benefit Claims ……………20
C. With the July 2005 Decision in the Matter of Employer:
Buffalo Forge, the Board Determined that Section 15 (7)
Apportionment No Longer Applied to Certain Death
Benefit Claims ………………………………………………………21
POINT III THE APPELLATE DIVISION’S RELIANCE ON
THE MATTER OF WEBB FAILS TO RECOGNIZE
AND EXPLAIN THAT IT HAD APPLIED THE
APPORTIONMENT TEST IN DEATH BENEFIT
CLAIMS IN PRIOR CASES ………………………...………..........24
POINT IV THE WEBB DECISION IS ERRONEOUS AS A
MATTER OF LAW BECAUSE ALL THREE GROUNDS
PROVIDED TO DENY APPORTIONMENT ARE
SPECIOUS AND INSUFFICIENT TO EXTINGUISH
THE STATUTORY AUTHORITY OF SECTION 15 (7) …………27
iv
A. A Claim for Death Benefits is a Separate and Distinct
Legal Proceeding from an Original Disability Claim ………………28
B. The Work-Related Injury Need Not be the Sole or Most
Direct Cause of Death but Need Only be a Contributing
Cause for Benefits to Issue ……………………………………….…29
C. WCL § 16 Provides no Express Authorization for the
Apportionment of Death Benefits ……………………………..……31
POINT V APPORTIONMENT IS A FUNDAMENTAL PRINCIPLE
EXPRESSED IN THE STATUTE TO ENSURE THAT
COMPENSATION IS AWARDED IN PROPORTION TO
CAUSATION. ………………………………………………………33
A. Apportionment Expresses the Sound Public Policy that
Liability is Awarded in Proportion to Causation and
Prevents Unjust Windfalls at Employer Expense ……………..……33
B. Denying Section 15 (7) Apportionment in Death Benefit
Claims When the Apportionment is Based on a Non
Work-Related Disability Leads to Irrational Results and
Unreasonable Compensation ……………………………………..…35
CONCLUSION ……………………………………………………………..……38
v
TABLE OF AUTHORITIES
CASE AUTHORITY: Page(s):
Matter of Altobelli v. Allinger Temporary Services, Inc., ……………….…….…18
70 A.D.3d 1083 (3d Dep’t 2010)
Matter of Barlog v. Board of Water Com’rs of City of Dunkirk, ……………..….35
239 A.D. 225 (3d Dep’t 1933)
Belmonte v. Snashall, ……….…….…………….…….…….……………….……11
2 N.Y.3d 560 (2004)
Bliss v. Bliss, ……….…….……………….…….….……………….…….………12
66 N.Y.2d 382 (1985)
Matter of Bremner v. New Venture Gear ………………………………………...19
31 A.D.3d 848 (3d Dep’t 2006)
Matter of Brown v. Harden Furniture, …….…….…...………19, 24, 25, 26, 27, 37
34 A.D.3d 1028 (3d Dep’t 2006)
Matter of Bruno v. Kelly Temp. Service, ……….………………………...………18
301 A.D.2d 730 (3d Dep’t 2003)
Matter of Carbonaro v. Chinatown Sea Food, ……….…………………..………18
55 A.D.2d 756 (3d Dep’t 1976)
Commissioners of the State Ins. Fund v. Hallmark Operating, Inc., ….…….……29
61 A.D.3d 1212 (3d Dep’t 2009)
De Mayo v. Rensselaer Polytech Institute, et al., ……….………………..………11
74 N.Y.2d 459 (1989)
Matter of Ellert v. Ellert Bros. & Sons, ……….…….……………………………16
78 A.D.2d 744 (3d Dep’t 1980)
vi
Matter of Engle v. Niagara Mohawk Power Corp., ……….……..………16, 17, 34
6 A.D.2d 631 (3d Dep’t 1958),
aff’d 6 N.Y.2d 449 (1959)
Matter of Glickman v. Ace Equipment Company, ……….……………………15-16
18 A.D.2d 946 (3d Dep’t 1963)
Inhabitants of Montclair Tp v. Ramsdell, ……….………………………..………12
107 U.S. 147 (1883)
Matter of Krausa v. Totales Debevoise Corp., ……….…………………..………11
84 A.D.3d 1545 (3d Dep’t 2011)
Matter of Krebs v. Town of Ithaca , ……….…….………………….…….………18
293 A.D.2d 883 (3d Dep’t 2002),
lv denied 100 N.Y.2d 501 (2003)
Matter of Kuczkowski v. Bethlehem Steel Corp., ……….……………..….………30
90 A.D.2d 612 (3d Dep’t 1982)
Matter of Moore v. St. Peter's Hosp., ……….…….…………………………...…18
18 A.D.3d 1001 (3d Dep’t 2005)
Patrolmen’s Benevolent Assn. v. City of New York, ……….……………..………12
41 N.Y.2d 205 (1976)
People v. Mobil Oil Corp., ……….…….……………….………………..………31
48 N.Y.2d 192 (1979)
Post v. Burger & Gohlke, ……….…….……………….………………....………34
216 N.Y. 544 (1916)
Matter of Rados v. Woodlawn Water Supply Dist., …………….…….………22, 26
31 A.D.2d 879 (3d Dep’t 1969)
Matter of Reagin v. Collins, ……….…….………………………….…….………28
52 A.D.2d 1010 (3d Dep’t 1976)
vii
Matter of Ricci v. W.J. Riegel & Sons Inc., ………………..…19, 23, 25, 26, 27, 37
278 A.D.2d 673 (3d Dep’t 2000)
Matter of Rooney v. Barkers Dept. Store, ……….…….……………………15, 16
97 A.D.2d 587 (3d Dep’t 1983)
Matter of Salerno v. Board of Educ., ……….…………………………….………28
35 A.D.2d 764 (3d Dep’t 1970)
Sanders v. Winship, ……….…….……………………………………………..…31
57 N.Y.2d 391(1982)
Matter of Schwab v. Emporium Forestry Co., ……….…….…………………14, 15
167 A.D. 614 (3d Dep’t 1915),
aff’d 216 N.Y. 712 (1915)
Matter of Sidaris v. Brookhaven Memorial Hosp., ……….…………...….………30
271 A.D.2d 884 (3d Dep’t 2000)
Matter of State Indus. Commn. v. Newman, ……….………………….….………14
222 N.Y. 363 (1918)
Matter of Stoehrer v. Lampert, ……….…….………………………………….…34
285 A.D. 85 (3d Dep’t 1954)
Matter of Tober v. Crescent Niagara Corp., ……….…………………….………30
64 A.D.2d 741(3d Dep’t 1978)
United States v. Menasche, ……….…….……………………………………...…12
348 U.S. 528 (1955)
Matter of Webb v. Cooper Crouse Hinds Co., …………...….8, 9, 23, 24, 27, 28, 29
62 A.D.3d 57 (3d Dep’t 2009)
Williams v. Taylor, ……….…….………………………..………………………..12
529 U.S. 362 (2000)
Matter of Zechmann v. Canisteo Volunteer Fire Dept., ……….……...….………29
85 N.Y.2d 747 (3d Dep’t 1995)
viii
N.Y. WORK. COMP. BD. DECISIONS: Page(s):
Matter of Employer: Buffalo Forge Company, ……….…….……………21, 23, 24
2005 WL 1794390 [WCB No. 8020 5320, July 25, 2005]
Employer: Harden, ……….…….………………………………….……………..20
2005 WL 159306 [WCB No. 60302106, January 24, 2005]
Matter of Jared Holt Co., ……….…….……………………………………...…..21
1997 WL 1228522 [WCB No. 5841 2896, February 28, 1997]
Employer: Oneida County Airport, ……….…….………………………………..20
2000 WL 33395752 [WCB No. 6920 8240, January 7, 1999]
Employer: Rochester-Genesee Regional Transportation Authority, ……………..20
2001 WL 1109548 [WCB No. 7990 2241, May 15, 2001]
Employer: Thomas Pest Control, ……….…….……………………………….…20
2000 WL 33408266 [WCB No. 5911 3950, November 21, 2000]
Employer: Village of Haverstraw, ……….…….…………………………………28
2004 WL 1859522 [WCB No. 3020 3226, August 16, 2004]
Employer: Wappinger Falls Saunders and Sons, ……….……………….……20-21
1999 WL 92938 [WCB No. 6960 4501, January 7, 1999]
Employer: W.J. Riegel & Sons Inc., ……….……………………………..………20
1998 WL 707750 [WCB No. 5930 1979, September 15, 1998]
ix
STATUTORY AUTHORITY: Page(s):
Section 5602 (a) (1) (i) of the Civil Practice Law and Rules …………………...…3
Section 2 (8) of the N.Y.S. WORK. COMP. LAW ………….………….………29
Section 10 of the N.Y.S. WORK. COMP. LAW..…………..…………....15, 17, 33
Section 15 (6) of the N.Y.S. WORK. COMP. LAW ………….……...…14, 31, 32
Section 15 (7) of the N.Y.S. WORK. COMP. LAW ……1, 2, 4, 7-18, 20-32, 34-37
Section 16 of the N.Y.S. WORK. COMP. LAW ………….…………23, 29, 31, 32
Chapter 816 of the Laws of New York ………….…………………………..……31
Laws of 1915, ch. 615. ………….…………………………….…….……………14
Laws of 1916, ch. 622 ………….…………………………………………..…14-15
McKinney’s Cons. Laws of NY, Book 1, Statutes § 231 ………….…………..…12
1
PRELIMINARY STATEMENT
This Brief is respectfully submitted on behalf of the employer Consolidated
Edison Company of New York, Inc., and their third-party administrator, Sedgwick
Claims Management Services, Inc. – Appellants (hereafter “Appellants”). This
appeal is by permission of the Court of Appeals dated September 06, 2012 (R. vi-
vii),
1
where this Court granted the Appellants leave to appeal from the Decision
and Order of the Appellate Division of the Supreme Court in the Third Judicial
Department, dated and entered January 19, 2012. (R. viii-x)
The Appellate Division affirmed the decision of the Workers’ Compensation
Board – Respondent (hereafter “Board”) filed December 18, 2009, which
determined that, as a matter of law, liability for workers’ compensation death
benefits can never be subject to apportionment to a non work-related disability that
contributed to the death, even when the non work-related disability was the direct
and primary cause of death. (R. 136-139) The Appellate Division’s decision is
contrary to express statutory language contained in WCL Section 15 (7)
authorizing apportionment in a death benefit claim, and is inconsistent with prior
decisions that applied the statutory apportionment test to death benefit claims. The
1
This appeal is being prosecuted upon a fully reproduced record. All references in parenthesis
will be to the Record on Appeal unless otherwise indicated.
2
Appellate Division’s decision has broad public policy implications because it
eliminates any apportionment from the workers’ compensation statute for a single
type of injury, that is an injury causing death where the death was in part caused by
a non work-related disability. This decision impacts all employers in the State of
New York and adversely affects their potential liability in all future death benefit
claims.
It should be noted that there is no dispute that apportionment will apply to an
injury causing death where the death was caused by multiple work-related
disabilities. And there is no dispute that apportionment will apply to an injury
causing disability where the disability was caused by either a work-related or a non
work-related disability. The Appellate Division’s decision, however, improperly
excluded from the statutory framework a single type of injury that had previously
been subject to apportionment just like all other injuries. This decision is
inconsistent and in conflict with the intent and purpose of apportionment, which is
recognized as a fundamental principle in the law and expressed directly in the
statutory provisions of Section 15 (7) of the Workers’ Compensation Law.
3
STATEMENT OF JURISDICTION
This Court has jurisdiction of the subject appeal. By Order dated September
06, 2012 (R. vi-vii), the Court of Appeals granted Appellants’ motion made
pursuant to CPLR § 5602 (a) (1) (i) in which Appellants sought leave to appeal to
this Court from the Decision and Order of the Appellate Division of the Supreme
Court in the Third Judicial Department dated January 19, 2012. (R. viii-x) The
Order of the Appellate Division finally determined the action originating in a New
York State administrative agency. Said Order affirmed, without comment on the
relevant statute, the determination of the Board that there could be no
apportionment in a death benefit claim where apportionment is based on a non
work-related disability.
4
QUESTION PRESENTED
The question of law sought to be reviewed by the Court of Appeals is:
Because Workers’ Compensation Law, Section 15 (7) ‘Previous
Disability’ expressly applies to both disability and death benefit
claims, did the Appellate Division err when it failed to consider
Section 15 (7) and ruled that apportionment did not apply as a matter
of law in a death benefit claim where the basis of apportionment was
a non-work related disability?
STATEMENT OF THE CASE
Antonio Hroncich (hereafter “Decedent”) was an employee of Consolidated
Edison Company of New York, Inc. – Appellant who, at the age of 61 and after his
retirement on February 28, 1993, filed a claim with the Board for a work-related
lung pathology. (R. 5) The Decedent’s physician, Dr. Greenfield, had examined
him just six (6) times during his lifetime, the last exam on November 07, 1996,
having occurred more than ten (10) years before the Decedent’s death. (R. 26) The
Board found that the Decedent sustained an occupational disease consisting of lung
pathology, which it later amended to include asbestosis and asbestos related pleural
disease. (R. 30) The Board set Decedent’s date of disablement as June 04, 1993,
established a $900.00 average weekly wage, and issued awards for permanent
partial disability at $222.00/wk. (R. 32-33) The Decedent received these awards
from June 4, 1993 until his death on September 02, 2007. Decedent’s surviving
5
spouse, Gaudenzia Hroncich - Respondent (hereafter “Claimant”) filed a claim for
workers’ compensation death benefits alleging that Decedent’s work-related injury
was a contributing cause to death. (R. 37-38) The statutory rate for death benefits
in effect on September 2, 2007 is $500.00 per week.
The Decedent died at age 75, more than fourteen (14) years after retirement,
and more than ten (10) years after any medical evaluation or treatment for the
work-related lung pathology. The direct and primary cause of death was a non
work-related thyroid cancer. The Claimant had decedent’s medical records
reviewed by Dr. Lester Ploss who concluded the work-related lung pathology was
a minor contributing factor to Decedent’s demise. (R: 92)
Dr. Ploss testified that there were several co-morbid conditions unrelated to
Decedent’s employment, that the foremost factor causing death was in no way
related to the underlying workers’ compensation injury. Dr. Ploss testified that “the
real problem comes up that this man had thyroid cancer.” (R: 88) The Decedent
was diagnosed with Graves Disease and Hurthle cell carcinoma of the thyroid with
vascular invasion of the thyroid gland, and a non work-related cancer of the lymph
nodes that metastasized to the neck, chest, and bones. The Decedent was also
diagnosed with a non work-related coronary artery disease, due to which he had
bypass surgery in December 2003 and a pacemaker/defibrillator implanted in June
2004. The Decedent had a myocardial infarction and atrial fibrillation. Dr. Ploss
6
concluded that “the thyroid disease was the thing that incapacitated him.” (R: 89)
None of the above referenced conditions were related to the work-related lung
pathology.
In 2004, an additional metastatic thyroid cancer was discovered and another
tumor was excised in March 2005. In May 2007, the non work-related thyroid
cancer progressed to Decedent’s lung and during surgery a tumor mass was found
to be eroding into the airway. Dr. Ploss testified “it was the thyroid cancer that was
doing this.” (R: 90) In August 2007, the Decedent was ventilator dependent, a
DNR was issued, and on September 02, 2007 the Decedent died at age 75. There
was no autopsy. (R: 50, 91)
The direct and primary cause of death was the non work-related metastatic
thyroid cancer. The Decedent died a respiratory-related death as his lungs filled
with blood because the thyroid cancer tumor had eroded into the lung. (R: 97) Dr.
Ploss confirmed that the work-related lung disease, where there was no treatment
for more than ten (10) years prior to death, was “a minor factor” contributing to
death. (R: 92) The death was 80% due to the non work-related tumor that eroded
into the airway and “a small degree of 20%” (R: 92) due to the work-related lung
disease. Dr. Ploss had no quantifiable data to support his opinion and he referred to
same as a “gut feeling.” (R: 96) Dr. Ploss conceded that the apportionment could
be 85%/15%, or even 90%/10% unrelated/related respectively. (R: 97)
7
The Appellants argued before the Board that its liability for death benefits
should be apportioned in proportion to causation and pursuant to WCL § 15 (7)
the death benefit award should be apportioned between the work-related and non
work-related disabilities contributing to death. Although decedent’s compensation
rate for his 1993 injury was $222.00/wk, which he continued to receive until his
death in 2007, the statutory compensation rate for the 2007 death claim is
$500.00/wk. In a Reserved Decision filed May 06, 2009, the Workers’
Compensation Law Judge held that apportionment was not available between
work-related and non work-related causes of death and awarded Claimant the
maximum death benefit rate without consideration for apportionment to the non
work-related disability. (R: 114-117) The Appellants appealed to the New York
State Workers’ Compensation Board.
8
DECISION OF THE WORKERS’ COMPENSATION BOARD
Prior to 2005, the Board had determined that Section 15 (7) apportionment
applied to all death benefit claims whether apportionment was based on a work-
related or non work-related disability. In 2005, however, the Board unilaterally
changed the state of the law having decided that apportionment was no longer
available in a death benefit claim where apportionment is based on a non work-
related disability.
By Memorandum of Board Panel Decision filed December 18, 2009, the
Board relied upon the Matter of Webb v. Cooper Crouse Hinds Co., 62 A.D.3d 57
(3d Dep’t 2009), affirming the Law Judge’s decision herein. The Board determined
that the Decedent’s work-related lung disease was a contributing factor to death
and that apportionment was not available, as a matter of law, between work-related
and non work-related causes of death. (R. 136-139)
9
DECISION OF THE APPELLATE DIVISION
By Notice of Appeal filed December 28, 2009, the Appellants appealed to
the Appellate Division of the Supreme Court in the Third Judicial Department
from the decision of the Board filed December 18, 2009. (R. 2) On appeal,
Appellants contended the plain language of WCL § 15 (7) permitted apportionment
of death benefit liability where a non work-related disability was a contributing
cause of death. By Memorandum and Order dated January 19, 2012 (R. viii-x), the
Appellate Division, without any discussion or analysis of the relevant statutory
section or the Webb Decision, summarily affirmed the Board holding that
apportionment is not available between work-related and non work-related causes
of death.
Thereafter, Appellants unsuccessfully moved in the Appellate Division for
an order for leave to appeal to the Court of Appeals. This Court, however,
subsequently granted Appellants’ motion for leave to appeal to the Court of
Appeals. (R. vi-vii)
10
ARGUMENT
Relevant Statute
Workers’ Compensation Law, Section 15 (7) provides:
“Previous disability. The fact that an employee has suffered previous
disability or received compensation therefor shall not preclude him from
compensation for a later injury nor preclude compensation for death
resulting therefrom; but in determining compensation for the later
injury or death his average weekly wages shall be such sum as will
reasonably represent his earning capacity at the time of the later
injury, provided, however, that an employee who is suffering from a
previous disability shall not receive compensation for a later injury in
excess of the compensation allowed for such injury when considered by
itself and not in conjunction with the previous disability except as
hereinafter provided in subdivision eight of this section.” (emphasis added)
POINT I
THE PLAIN LANGUAGE IN WCL SECTION 15 (7)
EXPRESSLY PERMITS APPORTIONMENT IN
DEATH BENEFIT CLAIMS.
A. Because this case Presents a Pure Question of Statutory Interpretation,
No Deference is Due the Workers’ Compensation Board.
Whether Section 15 (7) apportionment applies to death benefit claims is a
pure question of statutory interpretation. The specific question of statutory
interpretation placed before this Court is the meaning of the Section’s precise
language: “but in determining compensation for the later injury or death his
average weekly wages shall be such sum as will reasonably represent his earning
11
capacity at the time of the later injury ...” WCL § 15 (7). Because this case presents
a pure question of statutory interpretation dependent only on an accurate
interpretation of legislative intent, no deference is due to the Board’s
determination. See Belmonte v. Snashall, 2 N.Y.3d 560, 566 (2004); De Mayo v.
Rensselaer Polytech Institute, et al., 74 N.Y.2d 459, 462 (1989); Matter of Krausa
v. Totales Debevoise Corp., 84 A.D.3d 1545, 1546 (3d Dep’t 2011).
B. The Plain Language in Section 15 (7) Expressly Directs
that Apportionment Applies to Death Benefit Claims.
The plain language in Section 15 (7) clearly applies to death benefit claims.
This conclusion is inescapable because the Legislature cannot be inferred to have
used the term “death” without intending that it have meaning. Words have
meaning. The plain language of Section 15 (7) expressly provides that a previous
disability will not preclude compensation for a later injury or “death resulting
therefrom,” and that compensation for death will be determined on the basis of the
decedent’s “earning capacity at the time of the later injury” causing death.
This Section clearly authorizes apportionment in death benefit claims. The
Legislature used the term “death” twice in Section 15 (7) and did so to apply the
apportionment provisions to death benefit claims. Had the Legislature intended for
12
the apportionment provision not to apply to death benefits it would have expressly
stated so or omitted the term “death” entirely from Section 15 (7).
The U.S. Supreme Court has long noted that “[i]t is the duty of the court to
give effect, if possible, to every clause and word of a statute, avoiding, if it may be,
any construction which implies that the legislature was ignorant of the meaning of
the language it employed.” Inhabitants of Montclair Tp v. Ramsdell, 107 U.S. 147,
152 (1883); (see also United States v. Menasche, 348 U.S. 528, 538-539 (1955);
Williams v. Taylor, 529 U.S. 362, 404 (2000)). Likewise, this Court has long
recognized that every word in a statute has meaning and was inserted for a
purpose. Where statutory language is clear and unambiguous, the Court should
construe it so as to give effect to the plain meaning of the words. Patrolmen’s
Benevolent Assn. v. City of New York, 41 N.Y.2d 205, 208 (1976). “In the
construction of a statute, meaning and effect should be given to all its language, if
possible, and words are not to be rejected as superfluous when it is practicable to
give to each a distinct and separate meaning.” Bliss v. Bliss, 66 N.Y.2d 382, 389
(1985), quoting McKinney’s Cons. Laws of NY, Book 1, Statutes § 231.
The New York State Legislature was not unaware of the language it
employed, and the plain language in WCL Section 15 (7) clearly applies to death
benefit claims. The Legislature cannot be inferred to have used the term “death”
without intending that it have meaning.
13
C. The Board’s Position that Section 15 (7) only Applies to Death Benefits
Where Apportionment is Based on a Prior Work-Related Disability
is a Distinction Unsupported by the Plain Language of the Statute.
The Board’s position, affirmed by the Third Department, is that death
benefits can be subject to apportionment under Section 15 (7) but only if
apportionment is based on a work-related disability. The Board claims that Section
15 (7) does not permit apportionment based on a non work-related disability. The
plain language of Section 15 (7) provides no support for this position and there is
no logical basis for making a distinction along these lines.
What precise language in Section 15 (7) constitutes statutory authority for
apportioning death benefits based on a prior work-related disability but precludes
apportionment based on a non work-related disability? This question is not
addressed in the Board’s decision. No distinction is made in the statute, which
clearly permits apportionment regardless of the work-related status of the
disability.
D. The “Provided, However” Clause in Section 15 (7) was Enacted in
1915 to Address a Specific Disability Claim and Did Not Address
Death Claims or Intend to Limit Apportionment in Death Claims.
The Board’s Appellate brief below argued that Appellants relied upon the
“provided, however” clause at the end of Section 15 (7) to support apportionment
of death benefits. This is incorrect. Appellants rely upon the express apportionment
14
language contained in Section 15 (7) preceding the “provided, however” clause.
This express language was enacted as part of the original workers’ compensation
statute, and the fundamental principle that liability for workers’ compensation is to
be awarded in proportion to causation is embedded in this language.
A brief review of the legislative history of the “provided, however” clause
will address the Board’s misconception. The clause was enacted in 1915 as a
legislative amendment to then Section 15 (6), in specific response to the case of
Matter of Schwab v. Emporium Forestry Co., 167 A.D. 614 (3d Dep’t 1915), aff’d
216 N.Y. 712 (1915). In Matter of State Indus. Commn. v. Newman, 222 N.Y. 363
(1918), this Court recited the history of Matter of Schwab and the legislative
amendment in response thereto. In Matter of Schwab, the claimant had only one
hand and became entitled, upon the loss of the remaining hand while at work, to
compensation for permanent total disability and not to the lesser compensation for
permanent partial disability. After the Appellate Division, Third Department issued
its decision the New York State Legislature amended Section 15 (6) by adding
“provided, however, that an employee who is suffering from a previous disability
shall not receive compensation for a later injury in excess of the compensation
allowed for such injury when considered by itself and not in conjunction with the
previous disability…” Laws of 1915, ch. 615. The very next year the provisions of
then Section 15 (6) were supplemented by the addition of then subdivision 7 (Laws
15
of 1916, ch. 622), which created a state fund for a prescribed class of disabled
employees including the employee in Matter of Schwab.
The legislative history of the “provided, however” clause makes clear that it
was not intended to have any impact on death benefits. One cannot reasonably
infer from the clause any legislative intent to effectively repeal the provision
preceding it. As discussed above, longstanding principles of statutory interpretation
require giving effect to the plain meaning of each word in statutory provisions.
Moreover, the “provided, however” clause enacted in 1915 was intended to
expand the Section’s underlying principle of apportionment, an intention consistent
with the apportionment of death benefits based on work-related and non work-
related disabilities as authorized by the preceding language in Section 15 (7).
E. The Plain Language and Legislative Intent Expressed in Section
15 (7) Support the Fundamental Principle Embedded in the
Workers’ Compensation Statute, Expressed Generally in Section
10, that Liability be Apportioned in Proportion to Causation.
It cannot be denied as a fundamental principle that the Board may reduce
benefits in the proportion that causation is assignable to a non work-related
disability. “Clearly, the board may reduce benefits in the proportion that causation
is assignable to the noncompensable injury.” Matter of Rooney v. Barkers Dept.
Store, 97 A.D.2d 587, 588 (3d Dep’t 1983); (see also Matter of Glickman v. Ace
16
Equipment Company, 18 A.D.2d 946, 946 (3d Dep’t 1963); Matter of Ellert v.
Ellert Bros. & Sons, 78 A.D.2d 744, 744 (3d Dep’t 1980)).
In Matter of Rooney and Matter of Glickman apportionment was held to
apply between a work-related disability and a future non work-related disability.
These decisions, while not expressly relying on Section 15 (7), demonstrate that
apportionment is a fundamental principle in the statute to avoid liability unrelated
to employment. In Rooney, the Court proclaimed that “[t]o hold otherwise would
render an employer liable for reduced earnings in no way occasioned by a
claimant's employment.” Matter of Rooney, 97 A.D.2d at 588. In Glickman, an
employee returned to work after an acute coronary infarction in 1955 and worked
until 1960, when he had another coronary attack unrelated to employment and
became totally disabled from work. The Board issued awards after the 1960 attack
but apportioned just 60% of the award to the work-related disability. Matter of
Glickman, 18 A.D.2d at 946. The fundamental principle underlying apportionment,
expressed in these cases and numerous others, has equal application to death
benefit claims and finds direct expression in the plain language of Section 15 (7).
Another case demonstrating the fundamental principle that workers’
compensation liability will be awarded in proportion to causation is the Matter of
Engle v. Niagara Mohawk Power Corp., 6 A.D.2d 631 (3d Dep’t 1958), aff’d 6
N.Y.2d 449 (1959). In Matter of Engle the Appellate Division held:
17
“Entirely aside from the statutory prohibition of
subdivision 7 of section 15 against attribution of
compensation ‘in excess’ of the result of the industrial
accident, it is clear that the general policy of the law does
not require or permit the industrial accident to be charged
more than its contribution to the resulting physical injury
if that causation is factually separable in the record and
found by the board to be separable.”
Id. at 633-634. In Matter of Engle, citing WCL § 10, the Appellate Division
emphasized that the “ultimate test of industrial responsibility is to pay
compensation awarded for disability ‘arising out of and in the course of
employment.’” Matter of Engle, 6 A.D.2d at 632. The Court continued in this vein
stating “it is clear that the general policy of the law does not require or permit the
industrial accident to be charged more than its contribution to the resulting
physical injury if that causation is factually separable in the record and found by
the board to be separable.” Id. at 634. Further emphasizing that apportionment is a
fundamental principle rooted in the statute, the Court stated: “The statute does not
demonstrate a public policy to charge more to industry in the way of resulting
disability than may be found fairly to have been due to the industrial accident.” Id.
A contrary result creates a windfall for claimants at the expense of
employers. Such a windfall is inconsistent with the express apportionment
language contained in Section 15 (7) and the general language relating to the scope
of liability contained in Section 10, both Sections recognizing the fundamental
principle that liability be awarded in proportion to causation.
18
POINT II
THE APPORTIONMENT TEST REQUIRES
THAT THE PRIOR CONDITION, WHETHER
WORK-RELATED OR NOT, CONSTITUTES A
“DISABILITY IN A COMPENSATION SENSE.”
A. The Test for Apportionment Under WCL § 15 (7).
The apportionment test expressed in Section 15 (7) and throughout well-
settled case law, with or without specific reference to Section 15 (7), requires that
the prior condition, whether work-related or not, constitutes “a disability in a
compensation sense.” Matter of Krebs v. Town of Ithaca, 293 A.D.2d 883, 884 (3d
Dep’t 2002), lv denied 100 N.Y.2d 501 (2003), quoting Matter of Carbonaro v.
Chinatown Sea Food, 55 A.D.2d 756, 757 (3d Dep’t 1976); (see also Matter of
Altobelli v. Allinger Temporary Services, Inc., 70 A.D.3d 1083, 1084-1085 (3d
Dep’t 2010); Matter of Moore v. St. Peter's Hosp., 18 A.D.3d 1001, 1002 (3d
Dep’t 2005); Matter of Bruno v. Kelly Temp. Service, 301 A.D.2d 730, 731 (3d
Dep’t 2003).
These cases and numerous others demonstrate that where apportionment is
based on a work-related disability, the medical evidence must demonstrate that the
current disability or death is at least partially attributable to the prior disability. But
where apportionment is based on a non work-related disability, the medical
19
evidence must also demonstrate that the injured worker was not able to effectively
perform his or her job despite the preexisting disability.
The higher standard imposed for apportionment based on a non work-related
disability makes apportionment much more difficult than where it is based on a
work-related disability. In Matter of Ricci v. W.J. Riegel & Sons Inc., 278 A.D.2d
673 (3d Dep’t 2000) apportionment was not appropriate in that death benefit claim
“where [the] claimant was fully employed and functioning effectively despite a
noncompensable preexisting condition.” The Court held in Matter of Brown v.
Harden Furniture, 34 A.D.3d 1028, 1029 (3d Dep’t 2006), quoting Matter of
Bremner v. New Venture Gear, 31 A.D.3d 848, 848 (3d Dep’t 2006), “[a]s a matter
of law, apportionment is not applicable ‘where the preexisting condition was not
the result of a compensable injury and the claimant was able to effectively perform
his or her job duties at the time of the work-related [incident] despite the
preexisting condition.’”
The apportionment test described above was uniformly applied in case law –
whether the claim was for death or disability benefits and whether apportionment
was based on a work-related disability or a non work-related disability. This was
the state of the law until 2005, when the Board unilaterally outlawed
apportionment in all death benefit claims where the apportionment was based on a
non work-related disability.
20
B. Prior to July 2005, the Board Applied Section 15 (7) Apportionment
to Disability and Death Benefit Claims.
Prior to July 2005, the Board issued numerous decisions where it expressly
recognized that Section 15 (7) apportionment test applied not only to disability
benefit claims but to death benefit claims as well. (see Employer: Harden, 2005
WL 159306 [WCB No. 60302106, January 24, 2005]; Employer: W.J. Riegel &
Sons Inc., 1998 WL 707750 [WCB No. 5930 1979, September 15, 1998] (Board
applied the apportionment test to a cardiac death case finding that the test had not
been satisfied); Employer: Rochester-Genesee Regional Transportation Authority,
2001 WL 1109548 [WCB No. 7990 2241, May 15, 2001] (There is no legal
prohibition to death benefit apportionment for non work-related causes of death);
Employer: Thomas Pest Control, 2000 WL 33408266 [WCB No. 5911 3950,
November 21, 2000] (“death caused only in part by [decedent’s] [sic] compensable
exposure to pesticides at work does not preclude apportionment to the non-
compensable causes if such apportionment is supported by the medical
evidence.”); Employer: Oneida County Airport, 2000 WL 33395752 [WCB No.
6920 8240, January 7, 1999] (Death benefits based on lung disease were
apportioned by agreement 75% causally related and 25% unrelated due to
smoking); Employer: Wappinger Falls Saunders and Sons, 1999 WL 92938 [WCB
No. 6960 4501, January 7, 1999] (Board referred the claim for an independent
21
medical examination on the issues of causally related death and apportionment
among three (3) injuries and other non-compensable conditions); Matter of Jared
Holt Co., 1997 WL 1228522 [WCB No. 5841 2896, February 28, 1997] (Board
held that “since [decedent’s] [sic] occupational disease, and resultant disability,
had been found to be one-half related to his compensation disability claim, that this
same apportionment should apply on the death claim.”)).
C. With the July 2005 Decision in the Matter of Employer: Buffalo
Forge, the Board Determined that Section 15 (7) Apportionment
No Longer Applied to Certain Death Benefit Claims.
In the Matter of Employer: Buffalo Forge Company, 2005 WL 1794390
[WCB No. 8020 5320, July 25, 2005] the Board departed from it long-established
line of cases applying the Section 15 (7) apportionment test to death benefit claims
and found that apportionment in a death benefit claim based on a non work-related
disability was no longer available as a matter of law. Acting more like a legislative
body than an agency charged with administering claims for work injuries, the
Board incorrectly determined that apportionment to a non work-related disability
was incompatible with the legislative purpose underlying death benefit awards.
With this decision, the Board altered the legal landscape by denying
apportionment in death benefit claims thereby substantially increasing the cost of
death benefit claims and preventing apportionment agreements among the parties.
22
By disregarding the plain language of Section 15 (7), the Board frustrated the
legislative intent to allocate liability based on causation and created an unjust
windfall in certain types of death benefit claims.
The Board offered several reasons for its change of position, none of which
can stand close scrutiny. First, the Board found Section 15 (7) had never been cited
in any court decision supporting apportionment of death benefits between work-
related and non work-related disabilities. This explanation ignores the plain
language of Section 15 (7) and the fact that the Appellate Division applied the
apportionment test in death benefit claims. In the face of a decision that was
contrary to the Board’s new position, the Board simply dismissed that authority as
“merely dicta.” The Board was dismissing the Appellate Division’s decision in
Matter of Rados v. Woodlawn Water Supply Dist., 31 A.D.2d 879, 880 (3d Dep’t
1969) which stated “the fact that the first and last [heart] [sic] attacks were the only
compensable accidents would not automatically prevent apportionment [in a death
benefit case] [sic] also against the non-occupational injuries.”
2
The second reason for its change of position was the Board found death
benefits to be fundamentally different from disability benefits because a decedent’s
work-related injury need not be the sole cause of death to support an award. But
there is absolutely no difference with a disability benefit claim, the work-related
2
This “dicta” dismissed by the Board was a fundamental principle of the law and an established
precedent followed by the Board until 2005 and by the Appellate Division until 2009.
23
factor need not be the sole or even the primary cause to support either a disability
or death benefit claim. Third, the Board found that apportionment of death benefits
was incompatible with the legislative purpose for these benefits. The Board gave
very little consideration to the “legislative purpose” underlying apportionment,
that liability will be in proportion to causation, or to the fact that apportionment has
equal application to all injuries contemplated by the workers’ compensation
statute. Finally, the Board found there was nothing in Section 16 ‘Death Benefits’
to suggest apportionment would apply. This also is a specious argument because
there is nothing in Section 16 that precludes apportionment, and apportionment in
death benefit claims is expressly provided for in Section 15 (7).
The legacy of the Board’s flawed justification supporting the Matter of
Employer: Buffalo Forge decision, in contradiction of the plain language of
Section 15 (7) and a long-established line of cases applying the Section 15 (7)
apportionment test to death benefit claims, is the Appellate Division’s decision in
the Matter of Webb v. Cooper Crouse Hinds Co., 62 A.D.3d 57 (3d Dep’t 2009),
and the case at bar. In the instant matter, the Appellate Division affirmed the
Board’s newly formulated and erroneous legal position, holding that there can
never be apportionment in a death benefit claim where apportionment is based on a
non work-related disability. This result is contrary to the plain language of Section
24
15 (7) and the fundamental principle of apportioning liability in proportion to
causation which is embedded in the workers’ compensation statute.
POINT III
THE APPELLATE DIVISION’S RELIANCE ON THE MATTER OF
WEBB FAILS TO RECOGNIZE AND EXPLAIN THAT IT HAD
APPLIED THE APPORTIONMENT TEST IN DEATH BENEFIT
CLAIMS IN PRIOR CASES.
The Appellate Division, Third Department has decided three (3) cases since
2000 where the issue on appeal was whether death benefits were subject to
apportionment for a non work-related disability. In the Matter of Ricci v. W.J.
Riegel & Sons Inc., 278 A.D.2d 673 (3d Dep’t 2000) and the Matter of Brown v.
Harden Furniture, 34 A.D.3d 1028 (3d Dep’t 2006) both the Board and the
Appellate Division applied the Section 15 (7) apportionment test to those death
benefit claims. But in the Matter of Webb, with no analysis of Section 15 (7) or
those earlier decisions, the Appellate Division adopted the Board’s flawed position
in the Matter of Employer: Buffalo Forge that apportionment to a non work-related
disability is never available in a death benefit claim as a matter of law. In the
25
instant matter, the Court refused to reexamine and overrule Webb resulting in a
terse decision devoid of any analysis or explanation.
3
In the 2000 case of the Matter of Ricci the decedent suffered a heart attack at
work and died. The employer’s medical consultant apportioned the cause of death
as 70% to a pre-existing coronary artery disease and 30% to exertion at work. The
Appellate Division set forth the apportionment test to be applied in that death
benefit claim. “Apportionment is not appropriate where a claimant was fully
employed and functioning effectively despite a non-compensable preexisting
condition.” Matter of Ricci, 78 A.D.2d at 673. The Appellate Division concluded
that apportionment was not available because decedent’s coronary artery disease
was not diagnosed prior to death. The Court stated “there is no evidence that, prior
to his death, decedent was unable to effectively perform the duties of the job,
which as noted above, is essential to apportionment.” Id. at 673-674.
In the 2006 case of the Matter of Brown, the decedent’s death from
bronchopneumonia associated with hypertensive cardiovascular disease was
determined to be related to exertion at work. At issue on appeal was whether death
benefits should be apportioned based on non work-related disabilities that
contributed to the death. The Board applied the Section 15 (7) apportionment test
3
The Court, in its brief decision, inaccurately describes the Appellant’s argument was that death
benefits should be apportioned in the same manner as Decedent’s lifetime benefits. The
employer never sought apportionment of the lifetime benefits. The employer’s argument was,
and remains, that Section 15 (7) apportionment applies based on medical evidence of causation
showing the direct and primary cause of death was a non work-related thyroid cancer.
26
and found that the test was not satisfied. The Appellate Division affirmed, holding
that the decedent’s symptoms preceding death did not constitute a disability in a
compensation sense. Matter of Brown, 34 A.D.3d at 1029.
4
In the 1969 case of the Matter of Rados v. Woodlawn Water Supply Dist., the
Court clearly contemplated apportionment between a work-related death and a non
work-related disability. 31 A.D.2d at 880. The Matter of Rados decision is
significant because, together with Matter of Ricci and Matter of Brown, it
represents over thirty (30) years of authority supporting Section 15 (7)
apportionment in death benefit claims based on a non work-related disability. In
those decisions the Appellate Division applied the Section 15 (7) apportionment
test for a non work-related disability to each death benefit claim and found the test
was not met. The Appellate Division would not have engaged in this analysis if
Section 15 (7) apportionment did not apply to death benefit claims as a matter of
law.
5
4
In its brief in Matter of Brown the Board argued that the Section 15 (7) apportionment test was
not met because the deceased had no previous disability in a compensation sense prior to the
fatal accident. (Brief for Workers’ Compensation Board-respondent in Matter of Brown v.
Harden Furniture, 34 A.D.3d 1028 (3d Dep’t 2006), available at 2006 WL 4723828). Notably,
the Board did not argue that apportionment for a non work-related disability did not apply to a
death benefit claim.
5
In the matter at bar, the Board rationalizes its decision by noting both the Matter of Brown and
Matter of Ricci involved a direct causation of death, whereas the matter at bar involves a
consequential death. This is a distinction without a difference.
27
In the 2009 case of the Matter of Webb v. Cooper Crouse Hinds Co, the
Appellate Division accepted the Board’s flawed rationalization on this issue and
held that the Workers’ Compensation Law did not authorize the apportionment of
death benefits for a non work-related disability. In the Matter of Webb decision, as
in the case at bar, there was no consideration of the earlier decisions in the Matter
of Ricci and Matter of Brown, or any analysis of the plain language of Section 15
(7) and its application to death benefit claims. As a result, the Appellate Division
erroneously eliminated Section 15 (7) apportionment in death benefit claims where
apportionment is based on a non work-related disability.
POINT IV
THE WEBB DECISION IS ERRONEOUS AS A MATTER
OF LAW BECAUSE ALL THREE GROUNDS PROVIDED
TO DENY APPORTIONMENT ARE SPECIOUS AND
INSUFFICIENT TO EXTINGUISH THE STATUTORY
AUTHORITY OF SECTION 15 (7).
The Matter of Webb Decision failed to address Section 15 (7) apportionment
or recognize any of the Third Department’s earlier decisions applying the
apportionment test in death benefit claims where apportionment was based on a
non work-related disability. Instead, the Court in Webb adopted the Board’s
legislative determination that apportionment based on a non work-related disability
was no longer available in death benefit claims as a matter of law.
28
The precept that a claim for work-related death is a separate and distinct
legal proceeding brought by the beneficiary’s dependents, that the work-related
condition need only be a contributing factor in the decedent’s demise to support a
death benefit claim, and the absence of apportionment language in Section 16
formed the ratio decidendi for the Matter of Webb decision. A review of each will
show same insufficient to abrogate the clear meaning of Section 15 (7).
A. A Claim for Death Benefits is a Separate and Distinct Legal
Proceeding from an Original Disability Claim.
The Webb Court found significance in the fact that a claim for death benefits
is a claim separate and distinct from a claim for disability benefits. This fact has no
relevance when addressing Section 15 (7) apportionment. The fundamental
principle of the Workers’ Compensation Law apportioning liability in proportion
to causation, and the plain language of Section 15 (7), have equal application to
death benefit claims. This fact is highlighted by the fact that death benefits are
routinely subject to apportionment when the apportionment is based on a work-
related disability. (see e.g. Matter of Reagin v. Collins, 52 A.D.2d 1010 (3d Dep’t
1976); Matter of Salerno v. Board of Educ., 35 A.D.2d 764 (3d Dep’t 1970);
Employer: Village of Haverstraw, 2004 WL 1859522 [WCB No. 3020 3226,
August 16, 2004] (The Board directed the Law Judge to address the issue of
29
apportionment of the decedent's causally related death between his two underlying
work-related accidents.)) The fact that a claim for death benefits is separate and
distinct from disability benefits is of no consequence.
Moreover, while claims for disability and death benefits are legally distinct
and have different accrual dates for statute of limitations purposes (Matter of
Zechmann v. Canisteo Volunteer Fire Dept., 85 N.Y.2d 747, 751-753 (3d Dep’t
1995), death is not a new injury or accident, “but rather a new claim
consequentially related to the original injury.” Commissioners of the State Ins.
Fund v. Hallmark Operating, Inc., 61 A.D.3d 1212, 1213 (3d Dep’t 2009). The
term “death” is defined by statute to be the result of an injury. WCL § 2 (8) defines
the term “death” as follows: “’Death’ when mentioned as a basis for the right to
compensation means only death resulting from such injury.” Also, WCL § 16
provides for death benefits only “[i]f the injury causes death.” In sum, death and
disability claims both result from injuries and both types of claims are expressly
subject to apportionment under Section 15 (7).
B. The Work-Related Injury Need Not be the Sole or Most Direct Cause
of Death but Need Only be a Contributing Cause for Benefits to Issue.
The Matter of Webb Court relied upon a completely false distinction
between disability and death benefit claims. In the Matter of Webb, the Court cites
30
well-settled case law that a work-related injury need not be the sole or even the
most direct cause of death to support a death benefit claim, but fails to note that
same exact standard applies equally to all disability benefit claims. The Court of
Appeals can take judicial notice that the work-related factor need not be the sole or
the most direct cause of disability to support any claim for workers’ compensation
benefits whether it is a claim for disability or death benefits.
The landscape of workers’ compensation cases is filled with disability
benefit claims where the work-related accident was not the sole or direct cause of
injury, but rather aggravated a preexisting condition. (see Matter of Sidaris v.
Brookhaven Memorial Hosp., 271 A.D.2d 884, 884 (3d Dep’t 2000); Matter of
Kuczkowski v. Bethlehem Steel Corp., 90 A.D.2d 612, 612 (3d Dep’t 1982) (The
crucial factor is that claimant's employment activities acted on pre-existing
conditions in such a manner as to cause disability which did not previously exist.);
Matter of Tober v. Crescent Niagara Corp., 64 A.D.2d 741, 741 (3d Dep’t 1978)
(The precipitating cause of claimant's retirement was a surgical procedure not
related to his work, but there is evidence in the record, medically corroborated, that
the increasing disablement from the original neck and back injury contributed in
part to the ultimate termination of employment.)).
The low threshold to support a claim for work-related disability or death is
exactly why the Legislature, as directly expressed in Section 15 (7) and recognized
31
generally in Section 10, granted the Board the authority to allow for apportionment
of causation with a non work-related disability.
C. WCL § 16 Provides no Express Authorization for the Apportionment
of Death Benefits.
The Matter of Webb Court erroneously relied on the absence of language in
Section 16 ‘Death Benefits’ indicating those benefits can be subject to
apportionment. Section 16 does not address the apportionment and it contains no
language precluding apportionment. Section 15 (7), however, specifically relates to
apportionment and to death benefit claims. The absence of apportionment language
in Section 16 does not divest Section 15 (7) apportionment from its full force and
effect; there is no reason for an apportionment provision in Section 16 when the
provision is already provided in Section 15 (7).
Section 16 of the WCL cannot be read in isolation. It is a cornerstone of
statutory construction that a statute must be construed as a whole and that its
various sections must be considered together and with reference to each other.
Sanders v. Winship, 57 N.Y.2d 391, 395 (1982); People v. Mobil Oil Corp., 48
N.Y.2d 192, 199 (1979). Section 15 (7) was enacted in the original statute by
Chapter 816 of the Laws of New York as former Section 15 (6). When the statute
was enacted Section 15 (6) ‘Previous Disability’ immediately preceded Section 16
‘Death Benefits.’ These two sections of the WCL addressing ‘Previous Disability’
32
and ‘Death Benefits’ were placed one after the other in the statutory framework
both literally and figuratively. The two sections were contemplated together, are
consistent with each other, and the explanation as to why there is no reference to
apportionment in Section 16 is that the issue was already addressed in subdivision
6 (now 7) of Section 15 of the Workers Compensation Law. The very placement of
Section 15 (7) ‘Previous Disability’ in the original statute, immediately before
Section 16 ‘Death Benefits’ clearly suggests that the Legislature was acutely aware
that the word “death” in Section 15 (7) applied to death benefit claims in Section
16.
6
Also, the argument that death benefits cannot be apportioned because
Section 16 contains no express authorization for apportionment is clearly
unsupported by the statute given the undisputed fact a death benefit award can be
apportioned where the apportionment is based on a work-related disability.
6
It should also be noted that disability benefit claims established for a permanent total disability,
just like death benefit claims, involve no earnings capacity. There is no dispute, however, that
permanent total disability benefits are subject to apportionment.
33
POINT V
APPORTIONMENT IS A FUNDAMENTAL PRINCIPLE EXPRESSED
IN THE STATUTE TO ENSURE THAT COMPENSATION IS
AWARDED IN PROPORTION TO CAUSATION.
Apportionment is a fundamental principle contained in the Workers’
Compensation Law to ensure that compensation is awarded in proportion to
causation. This principle prevents windfalls at employer expense and has equal
application to all injuries whether resulting in disability or death, and whether
apportionment is based on a work-related or non work-related disability.
In all cases, apportionment appropriately confines compensation to the
injury caused by employment. In all cases, apportionment prevents a windfall to
claimants at the expense of employers for injuries that were not related to
employment.
A. Apportionment Expresses the Sound Public Policy that Liability
is Awarded in Proportion to Causation and Prevents Unjust
Windfalls at Employer Expense.
The liability of an employer for compensation includes the disability or
death of an employee from an injury arising out of and in the course of
employment without regard to fault as a cause. WCL § 10. “Since only that portion
of a physical result due to injury arising from employment is to be charged with an
34
award … the power of the Board to differentiate factors of causation where the
record warrants differentiation and apportionment seems implicit in its general
authority to decide facts.” Matter of Engle, 6 A.D.2d at 633.
The general authority of apportionment contained in Section 10 finds direct
and explicit expression in Section 15 (7). Together, these Sections express the
fundamental principle embedded in the law that liability is to be apportioned in
proportion to causation. To hold otherwise permits compensation for disabilities
unrelated to employment and results in an unjust windfall at the expense of
employers in New York State.
It is not reasonable to require an employer to pay for compensation that is
not related to the work-related injury. “It was the intention of the legislature to
secure such injured workmen and their dependents from becoming objects of
charity, and to make reasonable compensation for injuries sustained or death
incurred by reason of such employment a part of the expense of the lines of
business included within the definition of hazardous employments as stated in the
act.” (emphasis added) Post v. Burger & Gohlke, 216 N.Y. 544, 553 (1916); (see
also Matter of Stoehrer v. Lampert, 285 A.D. 85, 86 (3d Dep’t 1954)). It is not
reasonable to require the employer to pay the entire death benefit award when the
only evidence in the record, the uncontradicted testimony of the claimant’s
35
consulting physician, is that the work-related condition was no greater than a 25%
causative factor in Decedent’s demise.
“Loss or diminution of wage-earning ability is the foundation upon which
compensation awards and death benefits are computed.” Matter of Barlog v. Board
of Water Com’rs of City of Dunkirk, 239 A.D. 225, 226 (3d Dep’t 1933). Whether
the claimant is the injured worker in a disability benefit claim, or the spouse or
dependent in a death benefit claim, the purpose behind the payment of each benefit
is the same. To permit the Board to disregard the purpose and intent of Section 15
(7) and award compensation not in proportion to causation amounts to an
unjustified windfall to the prejudice of employers in New York State.
B. Denying Section 15 (7) Apportionment in Death Benefit Claims
When the Apportionment is Based on a Non Work-Related
Disability Leads to Irrational Results and Unreasonable Compensation.
It is undisputed that apportionment with a non work-related disability is
appropriate and authorized for disability benefit claims to ensure that
compensation is limited to causation. But if this same disability claim results in
death, then the death claim, according to the Board, cannot be subject to
apportionment based on a non work-related disability. This result is irrational and
36
provides for unreasonable compensation that is unrelated to the injury caused by
employment.
In the instant case, Dr. Ploss conceded that the work-related condition was a
minimal factor in Decedent’s death and that the direct and primary cause was the
non work-related thyroid cancer. Without any reduction for apportionment, the
death benefits herein are paid at the statutory weekly compensation rate of
$500.00/wk. The result is that the decedent’s disability benefits, which were paid at
a weekly compensation rate of $222.00/wk (reflecting the disability percentage
attributable to the work injury) for almost 15 years, increase to $500.00/wk as a
death benefit (without any potential reduction for apportionment). If the Board is
permitted to continue to ignore the plain language of Section 15 (7) this inequitable
anomaly will persist for all future death benefit claims.
This inequity is magnified by the fact that benefit rates have substantially
increased by virtue of the 2007 Workers’ Compensation Reform Legislation.
7
Most
death benefit claims occur years or even decades after retirement based on
occupational disease theories where there are concessions that the direct and
primary cause of death was unrelated to employment. For these claims, the benefit
rate is significantly higher than the underlying disability award because the benefit
rate is determined by the statutory maximum in effect at the time of death. It is
7
In 2007 the legislation raised the maximum benefit rate from $400.00 per week to $500.00 per
week increasing each year. Effective July 1, 2012 the maximum benefit rate is $792.07.
37
also noteworthy that deaths occurring in the course of employment will rarely, if
ever, be subject to apportionment because the apportionment test is not met where
the decedent was fully employed and functioning effectively. See Matter of Ricci,
78 A.D.2d at 278; Matter of Brown 34 A.D.3d at 1029.
Just like disability benefit claims, death benefit claims are compensable if
there is any causal nexus to a work-related injury, no matter how slight. The
availability of Section 15 (7) ensures that compensation is awarded in proportion to
causation, encourages settlement between the parties, and prevents abuse.
The apportionment test under Section 15 (7) of the Workers’ Compensation
Law applies to both disability benefit claims and death benefit claims, whether
apportionment is based on a work-related disability or a non work-related
disability. There is simply no legal basis to carve out from the apportionment test
only those death benefit claims where apportionment is based on a non work-
related disability. To do so frustrates the expressed fundamental principle of
apportionment that is the embedded in the Workers’ Compensation Law and
results in unreasonable compensation.
CONCLUSION
Wherefore, the Appellants respectfully request that the Order of the Appellate
Division affirming the Workers' Compensation Board be reversed and the case
remanded to the Board for determination on apportionment.
Dated: November 30, 2012
Nassau, New York
38
Respectfully Submitted,
~w.i~
David W. Faber, Esq.
Cherry, Edson & Kelly, LLP
One Old Country Road
Carle Place, New York 11514
(516) 486-4640
Steven M. Scotti, Esq.
Assistant General Counsel
Consolidated Edison Company
of N.Y., Inc.
4 Irving Place
New York, New York 10003
(212) 460-3528
Attorneysfor Appellants Consolidated
Edison Co. of N. Y., Inc. and Sedgwick
Claims Management Services, Inc.
CERTIFICATE FOR IDENTICAL COMPLIANCE
I, Ramiro A. Honeywell, certify that this electronic Brief for Appellants is
identical to the filed original printed materials, except that they need not
contain an original signature.
Dated: November 29, 2012
_______________________
Ramiro A. Honeywell
/s/ Ramiro A. Honeywell