In the Matter of Gaudenzia Hroncich, Respondent,v.Con Edison et al., Appellants, Special Disability Fund, Respondent. Workers' Compensation Board, Respondent.

Brief

N.Y.September 9, 2013

.' APPELLATE DIVISION THIRD DEPARTMENT INDEX NO. 510546 .1 .J COURT OF APPEALS STATE OF NEW YORK GAUDENZIA HRONCHICH and the N.Y.S. WORKERS' COMPENSATION BOARD, Respondents, -against- CONSOLIDATED EDISON COMPANY OF N.Y., INC., SEDGWICK CLAIMS MANAGEMENT SERVICES, INC. and the SPECIAL FUNDS CONSERVATION COMMITTEE, Appellants. BRIEF OF AMICUS CURIAE THE CITY OF NEW YORK MICflAEL A. CARDOZO Corporation Counsel of The City of New York, 350 Jay Street - 9th Floor Brooklyn, New York 11201 718-222-2101 JOHN SWEENEY of Counsel May 29, 2012 ·1 .s .S TABLE OF CONTENTS .S TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT..! , ,,~ ••.• ~ 2.. " ;.".. .,,".". ;' ~ t .-'. "0 i!. \ ." ~ ~ (, ::<; : :~ : • QUESTION,PRESENT·E·D.;;;; ;'~'..'.;; '.-: ;:.7,';'.-. ;;;',.,-;";<;T'. ';':-:••• ;; ;; 2 THE INTERRSJ: OF THE CITY OF.NEW, YORK..,AS AMICUS CURIAE 3 STATEMENT OF P·i\CTS ~.,.. 1.1 •.•, rl\.1 1.~ .., ~ •• , 3 '. ,/L . .; i'" .',.. .. I, • RELEVANT: ~T:A--TUTE 3 DECISION BELOW 4 ARGUMENT : ; ; ;..;..:.. ,;~.'; .. ;: '.. ;;.. ,.: ; 4 '. ;;,;.:.. ". '~! '. ~: ,: -}. THE APPELLATE: ,);.'0') >;.. lDIVISrON'$ ;.' INTERPRETATION OF WCL SECTION 15 (7) IGNORES THE EXPRESS LANGUAGE OF THE STATUTE CONCERNING APPORTIONMENT IN DEATH CLAIMS 4 CONCLUSION '.. . " "t ~If' ""'J' "., fer . 5••••••••••••••••• • e.9 ~ • ~ •• ~ ~ ~ '••• ':~ .• l. ~.!. ,'''':._ .:'.i!.~ .; ~ i .- ~~ ••••••••••••••••••••••••••••••••••••••••••• TABLE OF AUTHORITIES CASES Matter of Krebs v. Town ofIthaca, 293 A.D.2d 883 (3d Dep't 2006) .4 Matter of Webb v. Cooper Crouse Hinds, 62 A.D.3d 57 (3d Dep't 2009) 4 STATUTES WCL Section 15 (7) 2, 3, 4 .. 11 COURT OF APPEALS STATE OF NEW YORK GAUDENZIA HRONCHICH and the N.V.S. WORKERS' COMPENSATION BOARD, Respondents, -against- CONSOLIDATED EDISON COMPANY OF N.Y., INC., SEDGWICK CLAIMS MANAGEMENT SERVICES, INC. and the SPECIAL FUNDS CONSERVATION COMMITTEE, Appellants. BRIEF OF AMICUS CURIAE THE CITY OF NEW YORK PRELIMINARY STATEMENT The City of New York' ("the City"), as amicus curiae, respectfully submits this brief in support of the brief of Appellant Consolidated Edison Company seeking leave to appeal to this Court. The City concurs with appellants argument the Appellate Division erred in concluding that, as a matter of law, Workers' Compensation Law ("WCL") Section 15(7) does not permit apportionment between work related and non-work related causes in death cases. QUESTION PRESENTED Did the Appellate Division, Third Department, err in ruling that WCL Section 15(7) does not permit apportionment between work-related and non-work related medical conditions in a death case. 2 ,/ ./ ./ .1 THE INTEREST OF THE CITY OF NEW YORK AS AMICUS CURIAE The City of New York is a self insurer of its employees' workers' compensation benefits. The City and its related entities cover approximately 200,000 employees for workers' compensation. The Workers' Compensation Division of the Law Department administers the claims of all City employees and represents the City at hearings held before the Workers' Compensation Board. During fiscal year 2011 (July 1, 2010 to June 30, 2011), the Workers' Compensation Division indexed approximately 15,000 new claims and appeared at more than 15,000 hearings at the State Workers' Compensation Board. The City is the largest self-insured employer in the State of New York. STATEMENT OF FACTS The City relies for its statement of facts on those set forth in the Memorandum of Law filed by Appellant Consolidated Edison Company. RELEVANT STATUTE New York Workers' Compensation Law Section 15(7). Previous disability. The fact that an employee has suffered previous disability of received compensation therefore shall not preclude him from compensation for a later injury nor preclude compensation 'or 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 late 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. 3 DECISION BELOW The Appellate Division held that in a death cases, no apportionment between work related and non-work related causes of death is permitted as a matter of law. In so holding, the court relied on Matter of Webb v. Cooper Crouse Hinds, 62 A.D. 3d 57 (3d Dep't 2009). The Court did not address the language contained in WCL Section 15(7) explicitly providing for apportionment in death cases. ARGUMENT THE APPELLATE DIVISION'S INTERPRETATION OF WCL SECTION 15 (7) IGNORES THE EXPRESS LANGUAGE OF THE STATUTE CONCERNING APPORTIONMENT IN DEATH CLAIMS WCL Section 15(7) authorizes the Board to apportion causation III cases of disability or death. Such apportionment may involve two or more medical conditions, whether or not they are work-related. A medical condition must be disabling in a compensation sense to support apportionment. Matter of Krebs v. Town ofIthaca, 293 A.D. 2d 883 (3d Dep't 2006). In the instant case, the Court apparently disregarded the language in Section 15(7) which expressly provides for apportionment in death cases. The Court did not even I" acknowledge the existence of this statute. In relying on its prior,decision in Webb (which itself . , did not address Section 15(7)), the Court merely held th~t apportiollil1ent is unavailable in death cases. It is axiomatic that the Court must strive to give meaning to all the works of a statute. At a minimum, it must explain why certain words are not to be accorded meaning. Here, unfortunately, the Court acted as if the words of the statute did not even exist. Its decision is patently deficient and should, therefore, be reversed. 4 Dated: .1 .1 CONCLUSION The order appealed from should be reversed. Brooklyn, New York May 29,2012 Respectfully submitted, .1 .1 MICHAEL A. CARDOZO Corporation Counsel Attorney for Amicus Curiae The City of New York By: John Sweeney Assistant Corporation Counsel 5