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.
REPLY 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.April 2, 2013
ii
TABLE OF CONTENTS
Page(s)
TABLE OF CONTENTS …………………..…………………...…...………......i-iii
TABLE OF AUTHORITIES ………………………………………….........….iv-vi
PRELIMINARY STATEMENT ………………………………....……………..…1
ARGUMENT ……………………………………………………………………....4
POINT I THE STATUTORY AUTHORITY FOR
APPORTIONMENT IS FOUND IN THE PLAIN
LANGUAGE AND LEGISLATIVE INTENT
EXPRESSED IN SECTION 15(7), WHICH
SUPPORTS THE FUNDAMENTAL PRINCIPLE
OF THE WORKERS’ COMPENSATION STATUTE,
ALSO EXPRESSED GENERALLY IN SECTION 10,
THAT LIABILITY BE APPORTIONED IN
PROPORTION TO CAUSATION...……………………..………..…4
A. The Plain Language in Section 15(7) Expressly Directs
That Apportionment Applies to Death Benefit Claims ……………....4
B. WCL Section 10 also Supports the Fundamental
Principle That Liability be Apportioned in Proportion
to Causation.……………………………………………………....…..6
POINT II THE PRIMARY PURPOSE OF THE WCL IS TO
COMPENSATE AN EMPLOYEE AND HIS OR HER
DEPENDENTS FOR LOSS OF WAGES RESULTING
FROM A WORK-RELATED DISABILITY OR DEATH,
AND THE APPORTIONMENT PRINCIPLE EMBEDDED
IN THE STATUTE HAS EQUAL APPLICATION TO
BOTH DISABILITY AND DEATH BENEFITS ….……………..…9
iii
TABLE OF CONTENTS (Cont’d)
A. The Loss of Wage Earning Ability is the Basis for a
Death Benefit Award………………………………………………..10
B. The Board Routinely Apportions Death Benefit Awards
Among Multiple Work-Related Injuries or Conditions,
and the same Apportionment Principle Applies when
Death is Due to a Non Work-Related Injury or Condition………….13
C. There was Inadequate Analysis by the Supreme Court,
Appellate Division to Abrogate the Clear Intent and
Meaning of the Statute Supporting Apportionment in any
Claim for Compensation. ……………………………………..…….16
CONCLUSION ……………..………………………………………………..…..19
iv
TABLE OF AUTHORITIES
CASE AUTHORITY: Page(s):
Matter of Barlog v. Board of Water Com’rs of City of Dunkirk, ……………..….11
239 A.D. 225 (3d Dep’t 1933)
Matter of Beach v Launder Needs Co., ………………………...…………..…….11
24 A.D.2d 789 (3d Dep’t 1965)
Matter of Brown v. Harden Furniture, …….…….…...……………...………..… 17
34 A.D.3d 1028 (3d Dep’t 2006)
Matter of Cool v. T.P. Brake & Muffler,…….…………..…………..………..……7
305 A.D.2d 886 (3d Dep’t 2003)
Matter of Ellert v. Ellert Bros. & Sons, ……….…….…………………………..…7
78 A.D.2d 744 (3d Dep’t 1980)
Matter of Engle v. Niagara Mohawk Power Corp., ……….…………..………..…8
6 A.D.2d 631 (3d Dep’t 1958),
aff’d 6 N.Y.2d 449 (1959)
Matter of Estate of Allen v. Colgan, ……………………………….……………..12
190 A.D.2d 939 (3d Dep’t 1993)
Matter of Foster v. American Radiator Co., …….…………………..............……10
249 A.D. 460 (3d Dep’t 1937)
Matter of Glickman v. Ace Equipment Company, ….……………………..……….7
18 A.D.2d 946 (3d Dep’t 1963)
Matter of Moquin v. Glens Falls Hotel Corp., ………………………………...…11
245 A.D. 56 (3d Dep’t 1935)
Matter of Passante v. Walden Printing Company, ………………………….....…11
53 A.D.2d 8 (3d Dep’t 1976)
v
TABLE OF AUTHORITIES (Cont’d)
CASE AUTHORITY: Page(s):
Post v. Burger & Gohlke, ……….…………....………………………………..…11
216 N.Y. 544 (1916)
Matter of Reagin v. Collins, ……….…….……………………………..............…14
52 A.D.2d 1010 (3d Dep’t 1976)
Matter of Ricci v. W.J. Riegel & Sons Inc., …………………………………....…17
278 A.D.2d 673 (3d Dep’t 2000)
Matter of Rooney v. Barkers Dept. Store, ……….…….…………………...………7
97 A.D.2d 587 (3d Dep’t 1983)
Matter of Salerno v. Board of Educ., ……….………………….…………..…14-15
35 A.D.2d 764 (3d Dep’t 1970)
Matter of Stoehrer v. Lampert, ……….…….………………………..………...…11
285 A.D. 85 (3d Dep’t 1954)
Matter of Webb v. Cooper Crouse Hinds Co., ………….............................….16, 17
62 A.D.3d 57 (3d Dep’t 2009)
N.Y. WORK. COMP. BD. DECISIONS: Page(s):
Employer: Easy Does It Shop a/k/a Fairview Lumbar, ………….………..….14-15
1996 WL 242926 [WCB No. 0940 0242, May 08, 1996]
Employer: Village of Haverstraw, ……….…….…………………...……...…13, 15
2004 WL 1859522 [WCB No. 3020 3226, August 16, 2004]
vi
TABLE OF AUTHORITIES (Cont’d)
STATUTORY AUTHORITY: Page(s):
Section 10 of the N.Y.S. WORK. COMP. LAW……….....1, 3,4, 6-9, 13, 14, 16-18
Section 15(7) of the N.Y.S. WORK. COMP. LAW …………..1-6, 8, 13, 14, 16-18
Section 16 of the N.Y.S. WORK. COMP. LAW ……………..1, 2, 4, 10, 12-15, 18
Section 16(1-c) of the N.Y.S. WORK. COMP. LAW ………….……….....…13-14
Section 16(4-b) of the N.Y.S. WORK. COMP. LAW …………………...............12
Laws of 1990, ch. 296 …………………………………………………………....12
1
PRELIMINARY STATEMENT
Appellants seek reversal of the Supreme Court, Appellate Division’s
decision determining 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 death. Appellants assert that this
decision is contrary to the express language in WCL Section 15(7)
authorizing apportionment in a death benefit claim, and contrary to WCL
Section 10 expressing the fundamental principle that liability is limited to
the work-related injury. Appellants further note that the Appellate Division’s
decision is inconsistent with its prior decisions applying the statutory
apportionment test to death benefit claims.
Instead of addressing the issue on appeal regarding apportionment
under WCL Sections 15(7) and (10), the Brief submitted by Respondent
Workers’ Compensation Board (hereafter “Board”) changes the “Question
Presented” into an issue of statutory reductions under Section 16. But
Section 16 has no bearing on the apportionment issue before this Court or
the statutory arguments advanced by Appellants. The Board’s Brief does not
contain a single reference to Appellants’ Section 10 argument. And the
following sentence is the only response to Appellants’ Section 15(7) “plain
2
language” argument: “While appellants rely heavily on this second clause of
section 15(7) (Br. at 13-14), the subject clause does not address
apportionment among causes of injuries or diseases.” (Board’s Br. at 24).
This erroneous statement is contrary to the history of the Section and well-
settled case law, and the Board cites no authority supporting its position.
Moreover, the Board’s Brief cannot explain away the basic
inconsistency in its position that death benefits cannot be apportioned to a
non work-related injury because Section 16 contains no apportionment
language, but this same lack of apportionment language does not prevent
apportionment of death benefits among multiple compensation cases. The
Board claims that apportionment among multiple compensation cases is
different from apportionment with a non work-related injury because there is
no reduction in benefit among compensation cases. But this is not always
true. The Board also inaccurately asserts that death benefits are unrelated to
loss of wage earning capacity. In any event, these arguments are not relevant
to the statutory question presented herein because they are entirely divorced
from any supporting statutory language.
The Board’s final argument is that it is not required to continue to
adhere to its long-standing prior position permitting death benefits to be
3
apportioned with a non work-related injury. Appellants do not claim that the
Board’s past practice compels apportionment in this case. Rather, Appellants
discuss this history to demonstrate that Appellants’ apportionment argument
was previously accepted not only by the Board, but also by the Supreme
Court, Appellate Division. In affirming the Board’s position in the present
matter before the Court of Appeals the Appellate Division did not address
the prior contrary decisions and the Section 15(7) arguments advanced
herein.
Furthermore, the Board’s position conflicts with the intent and
purpose of apportionment which is recognized as a fundamental principle of
the Workers’ Compensation statute. This fundamental principle awarding
Workers’ Compensation benefits in proportion to causation is expressed in
the statutory provisions of Section 10 and Section 15(7).
4
ARGUMENT
POINT I
THE STATUTORY AUTHORITY FOR APPORTIONMENT
IS FOUND IN THE PLAIN LANGUAGE AND LEGISLATIVE
INTENT EXPRESSED IN SECTION 15(7), WHICH SUPPORTS
THE FUNDAMENTAL PRINCIPLE OF THE WORKERS’
COMPENSATION STATUTE, ALSO EXPRESSED GENERALLY
IN SECTION 10, THAT LIABILITY BE APPORTIONED IN
PROPORTION TO CAUSATION.
The authority supporting apportionment to a non work-related
disability does not stem from WCL Section 16, which provision neither
provides for nor prohibits apportionment to the disability due to either a
work-related or a non work-related injury or condition. WCL Section 15(7)
is the provision where the Legislature specifically provides the Board with
the authority to address apportionment of causation before awarding death
benefits. The plain language and Legislative intent expressed in Section
15(7) supports the fundamental principle embedded in the statute, expressed
also in Section 10, that liability is to be apportioned in proportion to
causation.
A. The Plain Language in Section 15(7) Expressly Directs
That Apportionment Applies to Death Benefit Claims.
5
The Board, in its Brief for Respondent, like the Supreme Court,
Appellate Division in its decision below, provides virtually no analysis of
the Appellants’ arguments concerning Section 15(7). It is clear from the
plain language of Section 15(7) that this Section applies to death benefit
claims as the Legislature cannot be inferred to have included the term
“death” without intending for that term to have meaning. Had the
Legislature intended for 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 middle clause in 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. The Board’s position that Section 15(7) apportionment only
applies to death benefit claims where apportionment is based on a disability
due to a work-related injury or condition is unsupported by any language in
the statute. The essence of WCL Section 15(7) and the clear intent of the
Legislature is that compensation should be awarded in proportion to
causation. The Legislature cannot be inferred to have used the term “death”
in Section 15(7) without intending that it have meaning.
6
The Board attempts to dismiss Appellants’ statutory language
argument in a single sentence: “While appellants rely heavily on this second
clause of section 15(7) (Br. at 13-14), the subject clause does not address
apportionment among causes of injuries or diseases.” (Board’s Br. at 24).
The Board provides no authority for its sweeping statement that the middle
clause of Section 15(7) is entirely unrelated to apportionment (whether for
disability or for death benefits). This incorrect statement is contrary to the
history of the section, as noted in Appellants’ Brief at 13-15. This history
unequivocally demonstrates that the middle clause in Section 15(7)
specifically relates to apportionment. Although the language of the provision
is not a model of clarity, its origin is clearly based on apportionment, and the
apportionment test resulting from this language has been recognized
throughout well-settled case law. See Appellants’ Br. at 18.
B. WCL Section 10 also Supports the Fundamental Principle
That Liability be Apportioned in Proportion to Causation.
WCL Section 10 also supports the fundamental principle embedded in
the statute that liability should be apportioned in proportion to causation.
Notwithstanding Section 15(7), the Board has the authority to reduce both
disability benefits and death benefits in the proportion that causation is
7
assignable to a non work-related disability.1 See, e.g., Matter of Rooney v.
Barkers Dept. Store, 97 A.D.2d 587, 588 (3d Dep’t 1983).
Apportionment is permitted between a work-related injury and a
disability due to a subsequent non work-related injury or condition. See, e.g.,
Matter of Cool v. T.P. Brake & Muffler, 305 A.D.2d 886, 889 (3d Dep’t
2003); Matter of Glickman v. Ace 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). These decisions, which do not rely on Section 15(7),
demonstrate that apportionment is a fundamental principle in the statute to
prevent liability unrelated to employment. “To 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.
The Board correctly maintains it may apportion an injured worker’s
claim for compensation to account for the effect of a previous or subsequent
non work-related injury. (Board’s Br. at 32-33). But there is no specific
statutory provision that references a subsequent non work-related disability
as a basis for apportionment. It is evident that the authority for
1 WCL Section 10. Liability for compensation [1.] “Every employer subject to this
chapter shall … secure compensation to his employees and pay or provide compensation
for their disability or death from injury arising out of and in the course of the employment
without regard to fault as a cause of the injury …”
8
apportionment stems not only from the language in Section 15(7), but also
from a fundamental principle of the WCL firmly rooted in Section 10.
In 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) the Supreme Court, Appellate
Division, citing WCL Section 10, 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 Appellate Division held that, even without considering Section
15(7), the statute “…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. Although the Matter of Engle was not addressing
a death benefit claim, it cannot be disputed that Section 10, which is the
foundation of the Engle decision, would have equal application to a death
benefit claim when WCL Section 10 governing “Liability for compensation”
specifically includes an employee’s “death from injury arising out of and in
the course of the employment.” See supra note 1.
9
The fundamental principle underlying apportionment, expressed in
numerous cases and WCL Section 10, that compensation will be awarded in
proportion to causation, has equal application to death benefit claims.
POINT II
THE PRIMARY PURPOSE OF THE WCL IS TO COMPENSATE AN
EMPLOYEE AND HIS OR HER DEPENDENTS FOR LOSS OF
WAGES RESULTING FROM A WORK-RELATED DISABILITY OR
DEATH, AND THE APPORTIONMENT PRINCIPLE EMBEDDED
IN THE STATUTE HAS EQUAL APPLICATION TO BOTH
DISABILITY AND DEATH BENEFITS.
Compensation for the loss of wage-earning capacity upon a
decedent’s demise, and the real or presumed loss of support suffered by a
decedent’s dependents, is the primary purpose for a death benefit award. The
Board’s Brief incorrectly asserts that death benefits, unlike disability
benefits, “are not tied to the employee’s loss of wage earning capacity.”
(Board’s Br. at 35). The Board states: “While compensation benefits are
designed to compensate the employee for an actual or presumed loss of
earnings, death benefits in several respects more closely resemble a life
insurance benefit.” (Board’s Br. at 35). The Board seeks to deny the statute’s
fundamental principle of apportionment to death benefit awards by claiming
that death benefit awards are not compensation for the decedent’s loss of
10
wage earning capacity. This argument is clearly wrong. A death benefit
award is directly related to the decedent’s loss of wage earning capacity and
specifically intended to compensate the decedent’s dependents for this loss
of earning capacity. Moreover, the Board recognizes that apportionment of
causation of death benefits is available when the contributing disability is
work-related, but fails to satisfactorily explain why the statutory principle of
apportionment is not available when the contributing disability is not work-
related.
A. The Loss of Wage Earning Ability is the Basis for a
Death Benefit Award.
The Board’s Brief goes to great lengths to try to distinguish the
compensation payable for a disability in a claim for a work-related injury or
condition from the compensation payable to the decedent’s dependents in a
claim for work-related death. Nonetheless, the statute’s primary purpose is
to compensate an employee and his dependents from the loss of wages
resulting from disability or death due to injuries arising out of employment,
regardless of fault. See Matter of Foster v. American Radiator Co., 249 A.D.
460, 462 (3d Dep’t 1937) (“While the benefits which that law [WCL Section
16] provides are not called ‘support,’ they are that, and intended to be
11
such.”); Matter of Stoehrer v. Lampert, 285 A.D. 85, 86 (3d Dep’t 1954);
Matter of Passante v. Walden Printing Company, 53 A.D.2d 8, 11 (3d Dep’t
1976). “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). See also Matter of Moquin v. Glens Falls Hotel Corp., 245
A.D. 56, 58 (3d Dep’t 1935); Matter of Beach v Launder Needs Co., 24
A.D.2d 789, 790 (3d Dep’t 1965). Whether the claimant is the injured
worker in a claim for a work-related injury or condition, or the decedent’s
dependents in a claim for death benefits, the purpose behind the payment of
disability and death benefits is to provide compensation for the loss of
wages.
“It was the intention of the legislature to secure such injured workmen
[sic] 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.” Post v.
Burger & Gohlke, 216 N.Y. 544, 553 (1916) (emphasis added). It would not
be reasonable to require the employer to pay an entire death benefit award
when the work-related condition was a minor or minimal contributing factor
12
in the death. And in the instant case the uncontradicted testimony of the
claimant’s consulting physician is that the work-related condition was only a
20% causative factor in Decedent’s demise. (R: 92)
There is simply no statutory language to support the Board’s position
that a death benefit award is not related to a decedent’s loss of wage earning
capacity. The Board’s relies on the $50,000.00 no-dependency death
payment in WCL Section 16(4-b), which was added to Section 16 in 1990,2
to support its claim that death benefits “are not tied to the employee’s loss of
wage earning capacity” (Board’s Br. at 35-36). But this provision only
proves the point that all other death benefit awards are directly related to the
decedent’s loss of wage earning ability because all of these provisions are
based on actual or presumed dependency.3 There is no statutory basis for
concluding that a death benefit award should be artificially increased when
decedent’s death stems from a work-related injury in combination with a non
work-related disability, especially when the non work-related disability was
the direct and primary cause of death.
2 Laws of 1990, ch. 296.
3 In the Matter of Estate of Allen v. Colgan the Supreme Court, Appellate Division stated,
relying upon the Governor's Bill Jacket, Laws of 1990, chapter 296, that the $50,000
payment was specifically enacted to avoid any discrimination toward those employees
dying without surviving dependents. 190 A.D.2d 939, 941 (3d Dep’t 1993).
13
B. The Board Routinely Apportions Death Benefit Awards
Among Multiple Work-Related Injuries or Conditions,
and the same Apportionment Principle Applies when
Death is Due to a Non Work-Related Injury or Condition.
There is an inconsistency in how the Board addresses apportionment
in a death benefit claim, permitting apportionment of causation of death
benefits only when the contributing disability is work-related. See, e.g.,
Employer: Village of Haverstraw, infra. In an attempt to evade this
inconsistency, the Board’s Brief abandons the statutory inquiry into a death
benefit apportionment under WCL Sections 15(7) and 10 and replaces it
with the irrelevant inquiry into a permitted statutory reduction under WCL
Section 16. (Board’s Br. at 15-16.) But apportionment and reduction are
separate and distinct concepts. Apportionment pertains to liability in
proportion to causation. Reduction, as applied by the Board, is really an
offset with no connection to causation. A death benefit award is “reduced”
or offset only in specific situations not applicable to the case before the
Court. See WCL Section 16(1-c) (governing payment of death benefits that
“shall be reduced” when a decedent’s spouse is receiving survivors
insurance benefits under the Social Security Act). The offsets contained in
Section 16 have no bearing on Appellants’ apportionment argument under
Section 15(7) and Section 10.
14
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 that a death benefit
award can be apportioned where the apportionment is based on a work-
related disability. The Board still has not addressed the question, presented
throughout the Appellants’ arguments below, as to where one would find the
Board’s authority for apportioning death benefits based on the disability
from multiple work-related injuries or conditions but precluding
apportionment to a disability due to a non work-related injury or condition.
See generally Appellants’ Br. at 28-29. The Board admits that death benefits
can be apportioned with a disability due to a work-related injury or condition
(Board’s Br. at 16, 21), and the Board routinely apportions death benefit
awards to the disability due to a work-related injury or condition. 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);4 Employer: Easy
Does It Shop a/k/a Fairview Lumbar, 1996 WL 242926 [WCB No. 0940
0242, May 08, 1996] (The prior classification and apportionment between
4 The Board contends that Matter of Reagin and Matter of Salerno address the issue of
WCL §15-8(e) reimbursement and therefore have “… no application to the facts here”
(Board’s Br. at 28). Special Disability Fund reimbursement was the issue in those cases,
but it cannot be denied that the Board had apportioned these death benefit awards to the
disability due to multiple work-related injuries.
15
work-related accidents was reasonable, in light of medical testimony to
assign liability for death benefits as 2/3 to the 1975 work-related injury and
1/3 to the 1976 work-related injury); 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 apportionment of the decedent's
causally related death between his two underlying work-related accidents).
Faced with the inconvenient fact that the issue was and remains one of
apportionment, and apportionment is permitted by the Board when death is
due to multiple work-related disabilities, the Board argues that
apportionment to a work-related disability in a claim for death “is quite
different from reducing the death benefits” (Board’s Br. at 16) and “merely
serves to prevent double recovery.” (Board’s Br. at 21.) These contrived
arguments advanced by the Board find no support in the statute and conflict
directly with the Board’s position that the absence of apportionment
language in Section 16 is fatal to Appellants’ argument.
In WCL Section 15(7), the Legislature specifically provides the Board
with the authority to address apportionment of causation before awarding
death benefits, and the middle provision contained in the Section makes no
distinction between whether the disability in question is due to a work-
16
related or a non work-related injury or condition. The plain language and
Legislative intent expressed in Section 15(7), expressed also in Section 10,
supports the fundamental principle embedded in the statute that liability
must be apportioned in proportion to causation.
C. There was Inadequate Analysis by the Supreme Court,
Appellate Division to Abrogate the Clear Intent and
Meaning of the Statute Supporting Apportionment
in any Claim for Compensation.
The Board’s Brief states that the Board is not bound by its earlier
decisions permitting the apportionment of death benefits to a non work-
related disability because the Board’s changed position was accepted in the
Supreme Court, Appellate Division’s ruling in Matter of Webb v. Cooper
Crouse Hinds Co., 62 A.D.3d 57 (3d Dep’t 2009). The Appellants are not
stating that the Board is bound by its original interpretation of the statute,
but Appellants are asserting that the Board’s original interpretation was
correct and that the Appellate Division accepted the Board’s changed
position without analyzing Sections 15(7) and 10, and without recognizing
the Appellate Division’s prior decisions that applied the apportionment test
to a death benefit claim.
17
The fundamental principle supporting apportionment, embedded in
the WCL and codified in Section 15(7) and Section 10, should not have been
so easily discarded without proper consideration of the issue presented.
There was no discussion of the statutory provisions in the decision below or
in Webb. The Supreme Court, Appellate Division below provided no
analysis of Section 10 or Section 15(7), or of the earlier decisions where the
Section 15(7) apportionment test was applied in claims for death benefits.
See Matter of Ricci v. W.J. Riegel & Sons Inc., 278 A.D.2d 673 (3d Dep’t
2000); Matter of Brown v. Harden Furniture, 34 A.D.3d 1028 (3d Dep’t
2006). Moreover, the reasons set forth in the Webb decision to deny
apportionment in a death benefit claim have been shown to be insufficient.
The Board’s Brief fails to address Appellants’ specific objections to
the ratio decidendi supporting the Webb decision. 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 to the death, and that apportionment language is absent in
WCL Section 16 have all been shown in the original Brief for Appellants to
be inadequate to abrogate the clear intent and meaning of WCL Section
15(7). See Appellants’ Br. at 27-32.
18
The apportionment principle set forth in the WCL applies to death
benefit claims, whether that apportionment is based on a disability due to a
work-related or non work-related injury or condition. There is 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. The plain
language and Legislative intent expressed in Section 15(7) support the
fundamental principle embedded in the statute, expressed generally in
Section 10, that liability be apportioned in proportion to causation.
CERTIFICATE FOR IDENTICAL COMPLIANCE
I, Ramiro A. Honeywell, certify that this electronic Reply Brief for
Appellants is identical to the filed original printed materials, except that they
need not contain an original signature.
Dated: April 1, 2013
_______________________
Ramiro A. Honeywell
/s/ Ramiro Honeywell