TO BE ARGUED BY: LAURA ETLINGER
TIME REQUESTED: 15 MINUTES
APPELLATE DIVISION DOCKET NO. 510546
Court of Appeals
of the 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,
-AGAINST-
SEDGWICK CLAIMS MANAGEMENT SERVICES, INC.,
Third Party-Administrator-Appellant,
WORKERS’ COMPENSATION BOARD AND THE SPECIAL DISABILITY
FUND,
Respondents.
BRIEF FOR RESPONDENT WORKERS’ COMPENSATION BOARD
BARBARA D. UNDERWOOD
Solicitor General
ANDREA OSER
Deputy Solicitor General
LAURA ETLINGER
Assistant Solicitor General
of Counsel
ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for Respondent WCB
The Capitol
Albany, New York 12224
(518) 474-2256 (telephone)
(518) 473-8963 (facsimile)
Dated: March 15, 2013
Reproduced on Recycled Paper
i
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES .............................................................................. iii
PRELIMINARY STATEMENT........................................................................... 1
QUESTION PRESENTED.................................................................................. 3
STATEMENT OF THE CASE ............................................................................ 3
Statutory Framework ................................................................................ 3
1. Compensation Benefits.......................................................... 4
2. Death Benefits ....................................................................... 8
Factual Background................................................................................... 9
1. Decedent’s Workers’ Compensation Claim........................... 9
2. Claimant’s Death Benefits Claim ....................................... 10
The Decision of the Workers’ Compensation Law Judge and
Workers’ Compensation Board................................................................ 12
The Decision Below.................................................................................. 14
ARGUMENT
POINT I THE WCL CONTAINS NO LANGUAGE AUTHORIZING
A REDUCTION IN DEATH BENEFITS ON ACCOUNT
OF NONWORK-RELATED CONTRIBUTING CAUSES
OF DEATH..................................................................................... 15
A. WCL § 16 Sets Forth A Single Method To Calculate
Death Benefits Whenever An Employee’s Work-Related
Injury Or Disease Was A Cause Of Death ......................... 16
ii
Table of Contents (cont’d)
PAGE
ARGUMENT, POINT I (cont’d)
B. WCL § 15 Contains Three Discrete Rules That
Implicate Death Benefits, But Non Authorizes A
Reduction in Death Benefits On Account Of
Nonwork-Related Causes Of Death.................................... 21
1. WCL § 15(7) governs benefits for employees with
previous disabilities who then suffer work-related
injuries or diseases and is thus irrelevant here............ 22
2. WCL § 15(8) governs benefits for a more limited
class of employees with previous conditions who
then suffer a work-related injury or disease, and
thus is similarly irrelevant here .................................... 25
3. WCL § 15(8)(ee) does not involve sequential
injuries or diseases at all................................................ 28
POINT II THE FACT THAT WCL § 15 HAS BEEN READ TO
REQUIRE APPORTIONMENT IN THE CALCULATION
OF COMPENSATION BENEFITS DOES NOT CHANGE
THE ANALYSIS ............................................................................ 30
POINT III PRIOR DECISIONS OF THE WORKERS’ COMPENSATION
BOARD SUGGESTING OTHERWISE WERE BASED ON
DICTUM FROM THE APPELLATE DIVISION AND DO NOT
DEMONSTRATE LACK OF CLARITY IN THE GOVERNING
STATUTES..................................................................................... 37
CONCLUSION ............................................................................................... 41
ADDENDUM
Funeral Expenses Award Notice of Decision, filed April 19, 2010 .......A1
Death Benefit Award Notice of Decision, filed Jan. 26, 2010 ..............A2
iii
TABLE OF AUTHORITIES
PAGE
CASES
Altes, Matter of v. Petrocelli Elec. Co.,
270 A.D.2d 767 (3d Dep’t 2000)............................................................... 19
Billy v. Consolidated Machine Tool Corp.,
51 N.Y.2d 152 (1980) ............................................................................... 35
Brown, Matter of v. Harden Furniture,
34 A.D.3d 1028 (3d Dep’t 2006)............................................................... 39
Carbonaro, Matter of v. Chinatown Sea Food, Inc.,
55 A.D.2d 756 (3d Dep’t 1976)............................................................... 31n
Cool, Matter of v. TP Brake & Muffler, Inc.,
305 A.D.2d 886 (3d Dep’t 2003)............................................................... 33
Droogan, Matter of v. Raymark Indus., Inc.,
59 A.D.3d 803 (3d Dep’t 2009)................................................................. 18
Engle, Matter of v. Niagara Mohawk Power Corp.,
6 A.D.2d 631 (3d Dep’t 1958), aff’d, 6 N.Y.2d 449 (1959) ................. 31,32
Engle, Matter of v. Niagara Mohawk Power Corp.,
6 N.Y.2d 449 (1959) ............................................................................ 31,38
Fama, Matter of v. P & M Sorbara,
29 A.D.3d 170 (3d Dep’t 2006)............................................................... 10n
Glickman, Matter of v. Ace Equip. Co.,
18 A.D.2d 946 (3d Dep’t 1963)................................................................. 33
Horton, Matter of v. McArdle & Casazza,
53 N.Y.2d 808 (1981) ............................................................................... 29
Imbriani, Matter of v. Berkar Knitting Mills,
277 A.D.2d 727 (3d Dep’t 2000)............................................................... 18
iv
Table of Authorities (cont’d)
PAGE
CASES
LaCroix, Matter of v. Syracuse Exec. Air Serv.,
8 N.Y.3d 348 (2007) ................................................................................... 7
Landgrebe, Matter of v. County of Westchester,
57 N.Y.2d 1 (1982) ............................................................................. 5,7,35
McCloskey, Matter of v. Marriott Corp.,
290 A.D.2d 671 (3d Dep’t 2002)............................................................... 32
Meszaros v. Goldman,
307 N.Y. 296 (1954).................................................................................. 23
Morin, Matter of v. Town of Lake Luzerne,
__ A.D.3d __, 955 N.Y.S.2d 224 , 2012 N.Y. Slip Op. 7911
(3d Dep’t 2012) ....................................................................................... 31n
Rados, Matter of v. Woodlawn Water Supply Dist.,
31 A.D.2d 879 (3d Dep’t 1969)............................................................ 37,39
Raynor, Matter of v. Landmark Chrysler,
18 N.Y.3d 48 (2011) .................................................................................. 4
Reagin, Matter of v. Collins,
52 A.D.2d 1010 (3d Dep’t 1976)........................................................ 27,28n
Ricci, Matter of v. W.J. Riegel & Sons,
278 A.D.2d 673 (3d Dep’t 2000)............................................................... 39
Rooney, Matter of v. Barker’s Department Store,
97 A.D.2d 587 (3d Dep’t 1983)................................................................. 33
Salerno, Matter of v. Bd. of Educ.,
25 A.D.2d 764 (3d Dep’t 1970).......................................................... 27,28n
Scally, Matter of v. Ravena Coeymans Selkirk Cent. Sch. Dist.,
31 A.D.3d 836 (3d Dep’t 2006)................................................................. 32
v
Table of Authorities (cont’d)
PAGE
CASES
Webb, Matter of v. Cooper Crouse Hinds Co.,
62 A.D.3d 57 (3d Dep’t 2009)......................................................... 13,15,18
Zechmann, Matter of v. Canisteo Volunteer Fire Dept.,
85 N.Y.2d 747 (1995) ............................................................................ 8,18
STATE STATUTES
Volunteer Firefighters’ Benefit Law
§§ 6-41 ............................................................................................. 18n
WCL
article 3 ............................................................................................... 23
article 9, §§ 200-242................................................................................. 4n
§ 2(7) ................................................................................................. 5
§ 2(15) ........................................................................................ 5n,10n
§ 3(2)(1-29) ............................................................................................... 5n
§ 3(2)(29) ........................................................................................ 5n,10n
§ 3(2)(30) ........................................................................................ 5n,10n
§ 10(1) ................................................................................................. 3
§ 13 .............................................................................................. 4,5
§ 14 ................................................................................................. 8
§ 15 ........................................................................................passim
§ 15(1) ................................................................................................. 6
§ 15(2) ................................................................................................. 6
§ 15(3)(a)-(u) ............................................................................................ 6,7
§ 15(3)(w) ....................................................................................... 7,10,33
§ 15(5) ................................................................................................. 6
§ 15(6) .............................................................................................. 6,7
§ 15(7) ........................................................................................passim
§ 15(8) ........................................................................................ 27,28n
§ 15(8)(b) ............................................................................................... 26
§ 15(8)(d) ............................................................................................. 27n
§ 15(8)(e) ........................................................................................passim
§ 15(8)(ee) ................................................................................ 21,22,28,29
§ 15(8)(h) ............................................................................................... 26
§ 16 ........................................................................................passim
vi
Table of Authorities (cont’d)
PAGE
STATE STATUTES
WCL (cont’d)
§ 16(1) ............................................................................................... 16
§ 16(1-a)-(4-d) ........................................................................................... 19
§ 16(1-b)-(3-b) ........................................................................................ 9,36
§ 16(1-b)-(4-d) ........................................................................................ 8,16
§ 16(1-c) ..................................................................................... 13,20,36
§ 16(2-a) .......................................................................................... 13,20
§ 16(4) ................................................................................................. 9
§ 16(4-a) ................................................................................................. 9
§ 16(4-b) .................................................................................. 9,20,36,37
§ 16(4-c) ................................................................................................. 9
§ 16(4-d) ....................................................................................... 9,20,36
§ 16(5) ................................................................................ 8,13n,19,34
§ 23 ........................................................................................ 14,38n
§ 37(1) ............................................................................................... 23
§ 39 ............................................................................................ 5,17
§ 50 ................................................................................................. 4
MISCELLANEOUS
Act of March 13, 2007, ch. 6, 2007 N.Y. Laws
§ 4 ................................................................................................. 7
§ 76 ............................................................................................. 26n
Bill Jacket for Law 1990, ch. 296...................................................................... 37
Workers’ Compensation Board Decisions
Buffalo Forge Co.,
2005 N.Y. Wrk. Comp. 80205320, 2005 N.Y. Wrk. Comp. LEXIS
6235 (July 25, 2005)................................................................................. 39
Crouse Hinds,
2007 N.Y. Wrk. Comp. 60601230, 2007 N.Y. Wrk. Comp. LEXIS
8931 (July 24, 2007), aff’d sub nom., Webb, Matter of v. Cooper
Crouse Hinds Co., 62 A.D.3d 57 (3d Dep’t 2009).................................... 40
vii
Table of Authorities (cont’d)
PAGE
MISCELLANEOUS
Jared Holt Co.,
Workers’ Compensation Board Case No. 59412897, 1997 W.L.
122852 (Feb. 28, 1997)............................................................................. 38
Rochester-Genesee Reg. Trans. Auth.,
2001 N.Y. Wrk. Comp. 79902241, 2001 N.Y. Wrk. Comp. LEXIS
91780 (May 15, 2001)............................................................................... 38
Schweitzer Aircraft,
2007 N.Y. Wrk. Comp. 90602865, 2007 N.Y. Wrk. Comp. LEXIS
5837 (June 22, 2007)................................................................................ 40
State Univ. of N.Y.,
2005 N.Y. Wrk. Comp. 50411746, 2005 N.Y Wrk. Comp. LEXIS
10365 (Nov. 23, 2005) .............................................................................. 40
Thomas Pest Control,
2000 N.Y. Wrk. Comp. 59113950, 2000 N.Y. Wrk. Comp. LEXIS
120728 (Nov. 21, 2000) ............................................................................ 38
Village of Haverstraw,
2004 N.Y. Wrk. Comp. 30203226, 2004 N.Y. Wrk. Comp. LEXIS
12958 (Aug. 16, 2004) .............................................................................. 21
PRELIMINARY STATEMENT
The Workers’ Compensation Law (“WCL”) provides for death benefits
when a work-related injury or disease “causes death.” WCL § 16. At issue
here is whether the WCL authorizes a reduction in death benefits to
account for the extent to which nonwork-related injuries or diseases were
also contributing causes of the death.
In the decision challenged here, the Workers’ Compensation Board
held that the WCL authorizes no such reduction, and the Appellate
Division, Third Department, unanimously affirmed. That ruling was
correct for three reasons.
First, the text of the WCL simply does not authorize a reduction in
death benefits when a death has both a work-related cause and a nonwork-
related cause. Eligibility for death benefits and the amount of those
benefits are governed by WCL § 16, which authorizes death benefits when
a work-related injury or disease “causes death.” Although a death may
result from multiple causes, as long as the work-related injury or disease
was a cause of death, nothing in WCL § 16 authorizes a reduction in death
benefits to reflect the extent to which any nonwork-related factors also
contributed to the death. And while WCL § 15, which generally governs
2
compensation benefits rather than death benefits, contains three
provisions that reference “death,” none authorizes that reduction either.
Second, the fact that WCL § 15 authorizes the reduction in
compensation benefits to account for nonwork-related causes of disability
provides no basis to read analogous authorization into the separate
provisions of WCL § 16 governing death benefits. Compensation benefits
for disability under WCL § 15 are specifically tied to the degree to which a
work-related injury or disease reduces an employee’s earning capacity.
Thus, where an employee suffers a work-related injury, and a previous or
subsequent nonwork-related disability contributes to the reduction in
wage earning capacity, it may be necessary to apply an apportionment rule
in order to isolate the degree to which the work-related injury reduced the
employee’s wage earning capacity. For death benefits under WCL § 16, in
contrast, the effect of the work-related injury on the deceased employee’s
wage earning capacity plays no role in the calculation of death benefits.
Thus the fact that WCL § 15 incorporates certain apportionment principles
for purposes of calculating compensation benefits does not imply a similar
principle for purposes of calculating death benefits.
3
Finally, the fact that the Workers’ Compensation Board previously
indicated that death benefits could be reduced on account of nonwork-
related causes of death does not compel it to adhere to that position now.
The Board was at that time simply adhering to dictum in an Appellate
Division decision that the Appellate Division has since specifically
renounced. The Board’s initial adherence to that dictum can provide no
basis to adopt a rule that the WCL itself does not authorize.
QUESTION PRESENTED
Whether the Workers’ Compensation Board correctly determined
that nothing in WCL § 16 or any other provision of the WCL authorizes a
reduction in claimant’s death benefits to reflect the extent to which a
nonwork-related condition also caused the employee’s death.
STATEMENT OF THE CASE
Statutory Framework
The WCL requires an employer to “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.” WCL § 10(1). “An employer must
4
secure the compensation for his employees by obtaining coverage from the
New York State Insurance Fund, purchasing coverage from an approved
private insurance carrier or obtaining approval from the Board to self-
insure.” Matter of Raynor v. Landmark Chrysler, 18 N.Y.3d 48, 53 (2011)
(citing WCL § 50).
Benefits available under the WCL include medical benefits, see WCL
§ 13, wage-related compensation benefits,1 see id. § 15, and in the case of
death, funeral expenses and death benefits payable to the employee’s
survivors, see id. § 16.
Because this case implicates a fundamental difference between
compensation benefits and death benefits, the nature of these benefits is
set out more fully below.
1. Compensation Benefits
When an employee is disabled from employment as a result of an
injury “arising out of and in the course of employment” or an occupational
1 The Board uses the terms “compensation benefits” rather than “disability benefits”
to describe the benefits available under the WCL to an employee disabled as a
result of a work-related injury or disease so as to distinguish such benefits from
those available for disabilities that are not work related under the Disability
Benefits Law, WCL art. 9, §§ 200 – 242, which is also administered by the Board.
5
disease,2 the employee may receive benefits under the WCL in the form of
medical benefits and wage-based compensation benefits calculated at a
weekly rate. See WCL § 2(7) (definition of “injury”); id. § 13 (medical
benefits); id. § 15 (calculation of compensation benefits); id. § 39
(compensation for occupational diseases). The calculation of wage-based
compensation benefits depends on the duration and nature of the
disability. As the Court explained in Matter of Landgrebe v. County of
Westchester, 57 N.Y.2d 1 (1982), the WCL establishes four classifications of
disability: (1) permanent total disability, (2) temporary total disability,
(3) permanent partial disability, and (4) temporary partial disability. Id.
at 5. In all cases, however, the WCL is designed to compensate employees
for a loss in earning capacity, either an actual loss or a presumed one.
More particularly, an employee who is totally disabled from work is
generally entitled to receive two thirds of the employee’s average weekly
wages, subject to statutory maximum and minimum compensation rates,
2 While the definition of a covered “injury” includes “such disease or infection as
may naturally and unavoidably result therefrom,” WCL § 2(7), “occupational
diseases” covered under the WCL are defined separately as diseases that arise from
the distinctive nature of the occupation, and include a list of specified diseases, id.
§ 3(2)(1-29), as well as a reference to unenumerated diseases stemming from “any
and all (hazardous) employments,” id. § 3(2)(30). See id. §§ 2(15), 39. The deceased
employee in this case was determined to have two occupational diseases, asbestosis,
a type of dust disease, and asbestos-related pleural disease. See id. § 3(2)(29), (30).
6
as long as the disability continues. WCL § 15(1), (2), (6). If the total
disability is temporary, the employee receives benefits only as long as the
disability continues; if the total disability is permanent, the employee can
receive benefits for life. WCL §15(1), (2). An employee who is temporarily
partially disabled from work is entitled to receive, for as long as the
disability continues, two thirds of the difference between the employee’s
average weekly wages before the disability and the employee’s wage
earning capacity thereafter in the same or other employment, subject to
statutory maximum and minimum compensation rates. Id. § 15(5), (6).
Thus, to receive a temporary partial disability award, an employee must
suffer an actual loss in current earning capacity.
Compensation benefits for an employee who suffers a permanent
partial disability depends upon the particular nature of the permanent
disability. An employee who suffers the permanent loss or loss of use of a
bodily member or sense set forth in WCL § 15(3)(a)-(u) is entitled to
receive a so-called “schedule loss of use award,” calculated by multiplying
two thirds of the employee’s average weekly wages (subject to maximum
and minimum compensation rates) by the number of weeks specified in the
statutory schedule for the particular bodily member or sense disabled.
7
WCL §§ 15(3)(a)-(u), 15(6). While schedule awards are payable without
regard to whether the disability causes any actual loss in current earnings,
such awards are intended to compensate employees for a presumed loss of
future earnings as a result of a permanent disability. Matter of LaCroix v.
Syracuse Exec. Air Serv., 8 N.Y.3d 348, 353 (2007) (“a schedule loss of use
award is to compensate for loss of earning power” (internal quotation
omitted)); Matter of Landgrebe v. County of Westchester, 57 N.Y.2d at 6,
10. And finally, an employee who suffers a permanent partial disability of
a kind not set forth in the schedule of WCL § 15(3)(a)-(u) is entitled to
receive an award calculated the same way awards are calculated for
temporary partial disability: two thirds of the difference between the
injured employee’s average weekly wages before the disability and the
employee’s wage earning capacity thereafter in the same or other
employment, subject to the statutory maximum and minimum
compensation rates. WCL §§ 15(3)(w), 15(6). These awards for permanent
partial disability are now capped at a maximum number of weeks, with
the duration of the award dependent on the degree of loss of wage earning
capacity. See id. § 15(3)(w) (as amended by Act of March 13, 2007, ch. 6,
§ 4, 2007 N.Y. Laws 56-57). Thus, as with temporary partial disability
8
awards, to receive a permanent partial disability award of this kind, an
employee must suffer an actual loss in current wage earning capacity.
2. Death Benefits
If the work-related injury or disease “causes death,” WCL § 16, the
employee’s survivors are entitled to funeral expenses and death benefits
calculated at a weekly rate. See id. §16. A claim for these benefits by an
employee’s survivors is entirely separate from an employee’s claim for
compensation benefits. See Matter of Zechmann v. Canisteo Volunteer Fire
Dept., 85 N.Y.2d 747, 753 (1995). Whereas WCL § 15 governs employee
claims for compensation benefits, WCL § 16 governs the amount of death
benefits and the survivors to whom it is payable.
Death benefits are calculated as a percentage of the decedent’s
average weekly wages at the time of the original occurrence causing the
injury, subject to statutory maximum and minimum wage rates. WCL
§ 16(1-b) to (4-d), (5). The percentage used to calculate the award is a
function of the identity and number of survivors entitled to payment (as
well as the date of death), but the percentage may not exceed 66 and 2/3
percent. See id. §§ 14, 16. The employee’s spouse and his or her children
(under a certain age or disabled of any age) are presumed to have been
9
financially dependent on the employee, and are entitled to a death
benefit without proof of actual dependency. Other designated survivors
(grandchildren, siblings, parents and grandparents) are entitled to a death
benefit only if they were dependent on the employee at the time of the
injury. Compare id. § 16(1-b) to (3-b) with id. § 16(4), (4-a), and (4-c).
When there are no presumed or actual dependent survivors, death benefits
are awarded in the set amount of $50,000 to the deceased employee’s
parents or estate. See id. § 16(4-b) and (4-d). Death benefits continue
until the beneficiary reaches a specific age of majority (children,
grandchildren and siblings), until the beneficiary is no longer dependent
(parents, grandparents, disabled children), or in the case of a spouse, until
the spouse’s death unless he or she remarries. See WCL § 16. Thus,
unlike compensation benefits, which are tightly tied to the extent of the
employee’s disability and the loss in the employee’s wage-earning capacity,
death benefits are not as tightly linked to lost wages.
Factual Background
1. Decedent’s Workers’ Compensation Claim
Decedent Antonio Hroncich was found by the Workers’ Compensation
Board to be permanently partially disabled, with a date of disablement of
June 4, 1993, as a result of occupational asbestosis and asbestos-related
10
pleural disease (R29, 30, 32).3 Mr. Hroncich had been employed by
appellant Consolidated Edison Company, a self-insured employer, for
approximately 35 years (R6). Because his disability was a non-schedule
permanent partial disability, his compensation benefits were calculated in
accordance with WCL § 15(3)(w). Mr. Hroncich’s average weekly wages for
the year worked before the occupational disease disablement was
determined to be $900, he was found to have suffered a loss in earning
capacity of 37% (or $333 per week), and his benefits were therefore
calculated as two thirds of his reduced earning capacity, or $222 per week
(R32).
2. Claimant’s Death Benefits Claim
Mr. Hroncich died on September 2, 2007 at the age of 75 (R34). His
widow, claimant Gaudenzia Hroncich, filed a claim for death benefits
(R37). In support of her claim, claimant submitted a medical report from
3 Both asbestosis and asbestos-related pleural disease are considered occupational
diseases under the WCL if, as here, they arise from the distinctive nature of the
occupation. See WCL § 2(15); see also id. § 3(2)(29) (listing as an occupational
disease silicosis and other dust diseases caused by work involving exposure to silica
or other harmful dust); id. § 3(2)(30) (including as an occupational disease all other
occupational diseases caused by employment in any defined hazardous
employment). See generally Matter of Fama v. P & M Sorbara, 29 A.D.3d 170, 171-
72 & n.2 (3d Dep’t 2006) (explaining difference between asbestosis, a dust disease,
and asbestos-related pleural disease, which is not considered a dust disease under
the WCL).
11
Dr. Lester Ploss which summarized Mr. Hroncich’s treatment for asbestos-
related diseases during the early 1990s and his subsequent development of
a thyroid gland disease in the mid and late 1990s, which later developed
into metastatic thyroid cancer involving his lungs (R48-49). In August
2007, Mr. Hroncich became acutely ill from the thyroid cancer and
experienced increased lung involvement with the disease (R50). Mr.
Hroncich was eventually placed on ventilation support and then died
(R50).
Dr. Ploss opined that Mr. Hroncich died as a result of “a metastatic
node eroding into a major bronchus and blood vessel causing terminal
hemorrhagic shock and respiratory failure” (R51). Dr. Ploss concluded
with a reasonable degree of medical certainty that Mr. Hroncich’s
“occupational pulmonary and pleural diseases contributed to his
respiratory symptoms of his terminal illness and thus indirectly
contributed to his demise” (R51). Dr. Ploss sought to apportion
responsibility between these two causes of death, estimating that the
terminal thyroid cancer was 80% responsible for the death, and that the
other 20% was a result of the “chronic causally related asbestos exposure
and its subsequent scarring of his lungs and pleura” (R51).
12
Consolidated Edison and its claims administrator Sedgwick Claims
Management Services, Inc. (collectively “appellants”) controverted liability
for the death benefits claim, and requested the opportunity to cross
examine Dr. Ploss on the issue of causal relationship (see R59). In his
deposition testimony, Dr. Ploss confirmed his opinion that the thyroid
cancer had progressed to decedent’s lungs, that the progression of the
disease was complicated by decedent’s asbestosis, and that the diseased
lung tissue and pleural scarring was a specific contributing factor to his
death (R89-92). Appellants did not submit a medical consultant’s report in
opposition to Dr. Ploss’s report and testimony.
The Decision of the Workers’ Compensation Law Judge and
Workers’ Compensation Board
The Workers’ Compensation Law Judge (“WCLJ”) rendered two
relevant decisions before entering a final award. The first decision is not
controverted here. There the WCLJ found that claimant was the lawful
widow of the deceased employee, that she receives $786 per month in
Social Security Act survivor benefits, and that she paid a funeral bill of
$15,541 for her husband’s death (R73). In the second decision, the WCLJ
determined that the decedent’s “death is causally related to his established
occupational lung disease,” and that the other criteria for a death benefit
13
award were met (R115). With respect to the factual issue of causation, the
WCLJ credited Dr. Ploss’s testimony that the occupational scarring of
decedent’s lungs and the pleural disease, in combination with the thyroid
cancer, caused death (R115). The WCLJ rejected appellants’ argument
that the death benefit should be reduced to reflect the extent to which
nonwork-related factors also caused the death. The WCLJ explained that
the Third Department in Matter of Webb v. Cooper Crouse Hinds Co., 62
A.D.3d 57 (3d Dep’t 2009), held that the WCL does not authorize any such
reduction (R115).
Thereafter, the WCLJ awarded claimant funeral expenses of $6,000
and compensation benefits at the rate of $409.31 per week (see Addendum
A1 (funeral expenses award notice of decision filed April 19, 2010);
Addendum A2 (death benefit award notice of decision filed Jan. 26,
2010)).4 See WCL § 16(1-c), 16(2-a).
4 The decisions awarding specified benefits were not included in the record before
the Appellate Division and for this reason are not included in the record on appeal.
For background informational purposes, copies of these decisions have been
included as an addendum to this brief. The death benefit award was calculated as
follows: The agreed upon average weekly wages was $900; the statutory maximum
for average weekly wages for a death occurring after July 1, 2007 is $750, see WCL
§ 16(5); the benefit is calculated at a rate of 66.67% of the maximum weekly wages
pursuant to WCL § 16(1-c) and 66.67% of $750.00 is $500.025. The weekly rate for
the award was subject to an off-set of $90.69 based upon claimant’s receipt of
survivor’s benefits under the Social Security Act pursuant to WCL § 16(1-c),
producing a weekly award of $ 409.31 (see Addendum A2).
14
In the meantime, appellants objected to the WCLJ’s second decision
and applied for Board review to consider two questions: (1) whether the
record supported the WCLJ’s decision that the decedent’s occupational
lung disease was a cause of death, and (2) whether the WCLJ erred as a
matter of law by declining to reduce the death benefits to reflect the extent
to which nonwork-related factors also caused the death (R118-119; see
R121-124). On its review, a panel of the Workers’ Compensation Board
affirmed the WCLJ’s decision (R136-138). Appellants appealed directly to
the Appellate Division, Third Department, pursuant to WCL § 23. In their
appeal, they abandoned the argument raised at the administrative level
that the finding of causally related death was not supported by the record,
and focused exclusively on the legal question whether the death benefits
should be reduced to reflect the extent to which nonwork-related factors
caused the decedent’s death.
The Decision Below
Adhering to its decision in Webb, the Appellate Division unanimously
affirmed the Board’s determination (Rviii-x). The court explained that in
Webb, it had explicitly rejected the notion that the WCL authorizes a
reduction in death benefits by essentially apportioning benefits otherwise
15
payable between work- and nonwork-related causes of death (Rix). The
court was not persuaded to reexamine and overrule Webb, but instead
reiterated its statement in Webb that to the extent its prior decisions
contain language suggesting that apportionment among work- and
nonwork-related causes of death may be appropriate under certain
circumstances, those cases should not be followed (Rix). Indeed, it
declined to apply any such apportionment to the death benefits at issue,
even though it was under the mistaken impression that the decedent’s
lifetime compensation benefits had been apportioned between work-related
and nonwork-related causes of the occupational diseases (Rix).
This appeal followed.
ARGUMENT
POINT I
THE WCL CONTAINS NO LANGUAGE AUTHORIZING
A REDUCTION IN DEATH BENEFITS ON ACCOUNT
OF NONWORK-RELATED CONTRIBUTING CAUSES
OF DEATH
Appellants do not contest that the decedent’s work-related injury was
a cause of death and thus that decedent’s survivors are entitled to death
benefits. Appellants frame the issue in this case as one of apportionment.
But the issue is more accurately characterized as whether death benefits
16
should be reduced to reflect the extent to which nonwork-related factors
also caused the death, because there is no question here that no other
party will be responsible for the balance. The Board has recognized
situations in which death benefits may be apportioned between
responsible employers, but that is quite different from reducing the death
benefits that survivors ultimately receive. No such reduction is authorized
by the WCL. Neither WCL § 16, which governs eligibility for and
calculation of death benefits, nor the three provisions in WCL § 15 that
specifically reference “death” authorizes a reduction in death benefits to
account for nonwork-related causes of death. To the extent appellants
argue that the absence of such authority results in a rule that is unduly
harsh to employers, their argument is properly made to the Legislature.
A. WCL § 16 Sets Forth A Single Method To Calculate Death
Benefits Whenever An Employee’s Work-Related Injury Or
Disease Was A Cause Of Death.
Under the WCL, death benefits, consisting of funeral expenses and
benefits calculated at a weekly rate, may be available to specified
survivors of the deceased employee. WCL § 16(1), (1-b) to (4-d). WCL § 16
governs eligibility for and calculation of death benefits. Since its
enactment in 1913, the opening clause of this statute has remained
17
unchanged, providing simply that “(i)f the injury causes death, the
compensation shall be known as a death benefit and shall be payable in
the amount and to or for the benefit of the persons following.” WCL § 16
(emphasis added). The statute does not say that the injury must be the
sole or even primary cause of death; it is sufficient that the injury “causes
death.”
The specific provision addressing compensation for an occupational
disease, the type of injury for which the deceased employee in this case
was receiving compensation benefits, uses similar language. WCL § 39
provides that “(i)f an employee . . . dies and his . . . death is caused by one
of the diseases mentioned in subdivision two of section three, . . . his
dependents shall be entitled to compensation . . . for his death in
accordance with the provisions of articles two and three of this chapter.”
Thus, death benefits are available to the survivors of an injured
employee as long as a work-related injury or disease is a cause of death.
As this Court has stated: “To be entitled to benefits, the claimant ha(s)
18
only to prove that the death was causally related to the injury.”5 Matter of
Zechmann v. Canisteo Volunteer Fire Dept., 85 N.Y.2d at 753.
For years, the Appellate Division has explained that this language
requires only that the work-related injury or disease was a contributing
cause of death. “(T)he work-related illness need not be the sole or even the
most direct cause of death, provided that the claimant demonstrates that
the compensable illness was a contributing factor in the decedent’s
demise.” Matter of Imbriani v. Berkar Knitting Mills, 277 A.D.2d 727, 730
(3d Dep't 2000). In Imbriani, the Third Department explained that the
claimant was entitled to death benefits based on the finding that the
decedent’s death was causally related to his compensable dust disease,
notwithstanding evidence that the decedent’s chronic smoking history
contributed significantly to his underlying pulmonary disease. Id. at 730-
31; see also Matter of Webb v. Cooper Crouse Hinds Co., 62 A.D.3d at 60
(applying same principle); Matter of Droogan v. Raymark Indus., Inc., 59
A.D.3d 803, 804 (3d Dep't 2009) (same). The causal relationship between
5 Zechmann concerned a claim under the Volunteer Firemen's Benefit Law (now
called the Volunteer Firefighters’ Benefit Law), against the fire company with
whom the deceased employee had volunteered. Under that statute, which the
Workers’ Compensation Board administers, the volunteer fire company is
responsible for line of duty injury and death benefits in similar manner to an
employer under the WCL. See Volunteer Firefighters’ Benefit Law §§ 6 to 41.
19
an industrial accident and the condition that results in death “need not be
direct and immediate,” as long as the industrial accident is a “contributing
cause” of death. Matter of Altes v. Petrocelli Elec. Co., 270 A.D.2d 767, 769
(3d Dep't 2000) (reversing denial of death benefit where work-related
injury caused severe depression that resulted in suicide).
As long as the work-related injury or disease is a contributing cause
of death, WCL § 16 authorizes an employee’s survivors to apply for death
benefits and provides only one general method for calculating the amount
of those benefits. Under this provision, benefits are calculated as a
percentage (to a total maximum of 66 2/3 %) of the deceased employee’s
maximum allowable average weekly wages. See WCL § 16(1-a) to (4-d)
(directing method of calculating benefits for specified survivors); see also
id. § 16(5) (establishing maximum and minimum average weekly wages
used for calculation of death benefit). The amount of the percentage
applied to the maximum allowable average weekly wages depends only on
the identity and number of qualifying survivors and the date of death. See
id. § 16(1-a) to (4-d). For example, where, as here, the death occurred on
or after January 1, 1978 and there is a surviving spouse and no dependent
children, the spouse is entitled to 66 2/3% of the deceased employee’s
20
average weekly wages. Id. § 16(1-c). Had there been a surviving spouse
and one or more dependent children, the spouse would have received 36
2/3% of the average weekly wages and the children would be entitled to
30% of the average weekly wage, share and share alike, up to an aggregate
of 66 2/3% of the average weekly wages. Id. § 16(2-a). (If there are no
dependent survivors entitled to the weekly death benefit, the set amount
of $50,000 is payable to the deceased employee’s parents or the employee’s
estate. See id. § 16(4-b) and (4-d).)
While at the administrative level appellants argued that the finding
of causally related death was not supported by the record, they abandoned
this issue and on appeal have not contested that the decedent’s work-
related injury was a cause of death entitling decedent’s survivors to death
benefits under WCL § 16. What they seek is a reduction in those benefits
to account for nonwork-related contributing causes of death. No provision
in WCL §16, however, authorizes a reduction in the amount so calculated
on account of (and in proportion to) any nonwork-related causes of death.
Appellants effectively concede as much by declining to rely on any
provision of WCL § 16 to support their position.
21
It is true, as appellants note (Br. at 28-29) that the Board has
apportioned payment of death benefits calculated in accordance with WCL
§ 16 among responsible payors in cases involving more than one work-
related cause of death. See, e.g., Village of Haverstraw, 2004 N.Y. Wrk.
Comp. 30203226, 2004 N.Y. Wrk. Comp. LEXIS 12958 (Aug. 16, 2004)
(finding decedent’s death causally related to two prior work-related
accidents for which compensation benefits had been paid and upholding
apportionment of the death benefits between the prior accidents). In that
circumstance, however, apportionment merely serves to prevent double
recovery and thereby to implement the legislative intent to provide death
benefits in the amounts provided by WCL § 16.
B. WCL § 15 Contains Three Discrete Rules That Implicate
Death Benefits, But None Authorizes A Reduction In Death
Benefits On Account Of Nonwork-Related Causes Of Death.
WCL § 15 generally governs the calculation of compensation benefits,
but contains three provisions that also reference death benefits, namely
WCL §§ 15(7), 15(8)(e) and 15(8)(ee). None of these provisions, however,
authorizes a reduction in death benefits on account of nonwork-related
causes of death. The provision of WCL § 15(7) that discusses death
benefits relates only to the determination of the average weekly wages to
22
use for purposes of calculating death benefits, and WCL §§ 15(8)(e) and
15(8)(ee) provide limited relief to employers in meeting their obligations to
pay death benefits, but do not in any way affect the death benefits received
by an employee’s survivors. These provisions are therefore irrelevant to
the question presented here.
1. WCL § 15(7) governs benefits for employees with
previous disabilities who then suffer work-related
injuries or diseases and is thus irrelevant here.
In their briefs to this Court, appellants (Br. at 10-19), as well as
respondent Conservation Committee of the Special Disability Fund (Br. at
6-8) and amicus New York City (Br. at 4), rely primarily on WCL § 15(7).
However, that provision has no application to the facts of this case at all.
Section 15(7), which is captioned “Previous disability,” governs benefits for
employees who suffer from a “previous disability” and then suffer a work-
related injury or disease. Because decedent suffered no such later work-
related injury or disease, the provision is irrelevant here.
23
WCL § 15(7) begins by stating:6
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, . . . .
Although the statute does not define “previous disability,” the courts have
explained that it means any previous condition or disease (whether or not
work-related) that impairs the ability to earn full wages. See Meszaros v.
Goldman, 307 N.Y. 296, 304 (1954) (“disability” (in WCL § 15(7)) refers to
impairment of earnings or earning capacity); cf. WCL § 37(1) (defining
“disability” for WCL article 3 governing occupational diseases). Thus in
this first clause, section 15(7) assures that even though an employee
already suffered a previous disability, the employee may still receive
compensation for a later injury, and the employee’s dependents may still
6 Section 15(7) reads in full:
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.
24
receive compensation for a death resulting from that later injury. The
clause does not address apportionment at all.
The second clause of section 15(7) goes on to explain how to
determine the average weekly wages used to calculate the benefits for the
later injury or the death resulting from the later injury. It provides:
. . . 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 . . . .
WCL § 15(7). Thus the average weekly wages used to calculate the
benefits for the later injury, or the death resulting from the later injury,
are those average weekly wages that the employee was receiving when the
subsequent work-related injury occurred, not the average weekly wages
when the previous disability occurred. While appellants rely heavily on
this second clause of section 15(7) (Br. at 13-14), the subject clause
similarly does not address apportionment among causes of injuries or
diseases.
The third clause of section 15(7) does not reference death. It provides
that in the case of compensation benefits, the compensation received for
the later work-related injury or disease shall not be more than the amount
25
allowed for that injury or disease when considered by itself. This language
is the basis for an apportionment rule applicable to compensation claims,
and is therefore discussed in Point II, infra. But the clause provides no
authority to reduce death benefits on account of nonwork-related causes of
death. And in any event, section 15(7) in its entirety is simply not
implicated where, as here, the employee suffered no previous disability
before his work-related injury.
2. WCL § 15(8)(e) governs benefits for a more limited
class of employees with previous conditions who
then suffer a work-related injury or disease, and
thus is similarly irrelevant here.
WCL § 15(8)(e) similarly governs benefits for employees who had a
previous injury or condition and then suffered a work-related injury or
disease, but it applies to the more limited group of employees whose
previous disability consisted of a permanent physical impairment. It is
therefore similarly irrelevant here.
Entitled “Disability following previous permanent physical
impairment,” section 15(8)(e) provides limited relief to employers whose
employees had a previous permanent impairment, and then suffered a
work-related injury or disease. A “permanent physical impairment” is
26
“any permanent condition due to previous accident or disease or any
congenital condition which is or is likely to be a hindrance or obstacle to
employment.” Id. § 15(8)(b). WCL § 15(8)(e) allows an employer to seek
partial relief from the Special Disability Fund for death benefits awarded
on account of death from a work-related injury or disease where the death
or the work-related injury would not have occurred except for the pre-
existing “permanent physical impairment.”7 Under that circumstance,
after the employer has made death benefit payments for a specified period
(two or five years depending on the date of the injury or the disablement
from an occupational disease), the employer may seek reimbursement from
the Special Disability Fund for its payment of subsequent death benefits.
See id. § 15(8)(h) (establishing Special Disability Fund).
Thus WCL § 15(8)(e) mentions death, but it does not affect the
amount of death benefits received by an employee’s survivors. Rather, it
provides a special rule allowing for partial reimbursement to employers to
encourage the employment of persons with previous disabilities that could
7 Pursuant to a 2007 amendment, the Special Disability Fund was closed to new
claims. See Act of March 13, 2007, ch. 6, § 76, 2007 N.Y. Laws 95-96 (amending
WCL § 15(8)(h)).
27
otherwise impair their employability. See WCL § 15(8) (declaration of
policy and legislative intent).8 The provision thus has no application here.
The presence of the provision in the WCL, however, serves to
demonstrate the general rule that when an employee suffers a work-
related incident or disease that causes death, his survivors are entitled to
death benefits without a reduction on account of other causes of death,
even if those other causes were not work-related. Absent the special relief
provided by section 15(8)(e), an employer would be liable for the full death
benefit otherwise due on account of a death from a work-related injury or
disease, even though the death was also caused by a pre-existing
permanent physical impairment.
While appellants rely (Br. at 28-29) on Matter of Reagin v. Collins, 52
A.D.2d 1010 (3d Dep’t 1976), and Matter of Salerno v. Bd. of Educ., 35
A.D.2d 764 (3d Dep’t 1970), for the proposition that apportionment among
work-related disabilities is available in death benefits claims, these cases
8 A similar provision in WCL § 15(8) allows the employer to seek partial
reimbursement from the Special Disability Fund for compensation benefits under
specified circumstances. See WCL § 15(8)(d) (allowing the employer to seek partial
reimbursement when the pre-existing permanent condition and the subsequent
work-related injury or disease results in a permanent disability caused by both
conditions that is materially and substantially greater than that would have
resulted from the subsequent injury or disease alone).
28
involve apportionment in the context of reimbursement under WCL
§ 15(8)(e) and thus have no application to the facts here.9
3. WCL § 15(8)(ee) does not involve sequential
injuries or diseases at all.
WCL § 15(8)(ee), like 15(8)(e), provides special relief to employers
from the Special Disability Fund, but it neither affects the calculation of
death benefits, nor implicates the issue of apportionment at all. WCL
§ 15(8)(ee) simply permits an employer to seek reimbursement from the
Special Disability Fund after it has paid compensation for death benefits
for a fixed period of time if the death was due to silicosis or other dust
disease. Indeed, the Conservation Committee of the Special Disability
Fund is a party in this case because the decedent had been receiving
compensation benefits as a result of permanent partial disability caused by
a dust disease (asbestosis), the disease that the Board found to be a cause
of death.
9 These cases involved a specific situation under section 15(8) in which both the
previous permanent physical impairment and the later injury occurred while the
employee was working for the same employer The decedent’s employer would have
been responsible for the entire death benefit, except that under WCL § 15(8), it was
entitled to reimbursement from the Special Disability Fund after the statutory
period. Because the previous permanent physical impairment was an injury for
which the employer was responsible, the Board determined it would reimburse the
employer for only 50% of the death benefit after the statutory period. See Matter of
Reagin v. Collins, 52 A.D.2d at 1010; Matter of Salerno v. Bd. of Educ., 35 A.D.2d at
765.
29
Therefore, although it mentions death benefits, section 15(8)(ee)
neither addresses cases involving multiple causes of disability or death nor
affects the calculation of death benefits that an employee’s survivors are
entitled to receive.
In all, then, there is simply no provision either in WCL § 16, which
governs death benefits generally, or in the discrete provisions in WCL § 15
that reference death benefits, authorizing a reduction in death benefits on
account of nonwork-related contributing causes of death. There is not
even a statutory provision that arguably can be read to authorize such a
reduction. There is therefore no reason to think the Legislature intended
one. To the extent appellants argue that the absence of a provision for
such a reduction is unduly harsh to employers, their argument is best
made to the Legislature. As this Court explained in Matter of Horton v.
McArdle & Casazza, 53 N.Y.2d 808 (1981), where the statutory language
governing limits on death benefits is clear, “it is the duty of the Legislature
and not this court to make the appropriate amendment.” Id. at 810.
30
POINT II
THE FACT THAT WCL § 15 HAS BEEN READ TO
REQUIRE APPORTIONMENT IN THE CALCULATION
OF COMPENSATION BENEFITS DOES NOT CHANGE
THE ANALYSIS
Relying on two contexts in which compensation benefits have been
reduced to account for the extent to which nonwork-related injuries or
illnesses contributed to a disability, appellants urge the Court to fashion a
similar rule for death benefits. The provisions governing the calculation of
compensation benefits, however, are entirely separate. Thus the fact that
those provisions authorize apportionment among the causes of disability,
even when such apportionment results in a reduction in benefits payable,
provides no basis to read analogous authorization into the provisions
governing death benefits.
As previously explained, except for schedule loss of use awards,
compensation benefits are specifically calculated to reflect the extent to
which an employee suffers an actual loss of earning capacity in the weeks
they are paid. Thus where an employee’s disability is caused by multiple
injuries or diseases, it may be necessary for the Board to isolate the effect
of the work-related injury on the employee’s reduced earning capacity.
31
The two contexts authorizing apportionment among causes of disability for
purposes of determining compensation benefits do this.
First, when an employee with a previous disability, including a
nonwork-related disability, suffers a work-related injury or disease, the
apportionment rule in the third clause of WCL § 15(7) comes into play.
That provision directs 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.” As appellants recognize (Br. at
15), this provision authorizes apportionment among the causes of
disability when warranted by the medical evidence when an employee
seeks compensation for a work-related injury.10 See, e.g., Matter of Engle
v. Niagara Mohawk Power Corp., 6 N.Y.2d 449 (1959) (upholding award of
one-sixth of the medical benefits and compensation benefits for a
temporary disability resulting from shoulder surgery where one of a total
10 Because WCL § 15(7) allows apportionment to a “previous disability,” the
Appellate Division has long held that apportionment to a previous nonwork-related
disability is available only where, according to the factual evidence, the employee
was not fully employed or was not able to effectively perform his or her job duties
due to the preexisting condition. See, e.g., Matter of Morin v. Town of Lake Luzerne,
__ A.D.3d __, 955 N.Y.S.2d 224, 225, 2012 N.Y. Slip Op. 7911, at *1-2 (3d Dep’t
2012); Matter of Carbonaro v. Chinatown Sea Food, Inc., 55 A.D.2d 756, 757
(3d Dep't 1976) (“Apportionment does not apply in cases in which the prior
condition was not a disability in a compensation sense.”).
32
of six shoulder dislocations that had resulted in the need for surgery was a
work-related injury); Matter of Scally v. Ravena Coeymans Selkirk Cent.
Sch. Dist., 31 A.D.3d 836 (3d Dep’t 2006) (upholding apportionment of a
disability to a prior nonwork-related injury that would have resulted in a
schedule loss of use award if it had been work-related); Matter of
McCloskey v. Marriott Corp., 290 A.D.2d 671 (3d Dep’t 2002) (upholding
apportionment to a prior work-related injury). But nothing in WCL § 15(7)
authorizes apportionment with respect to death benefits payable to an
employee’s survivors. See WCL § 15(7) (governing calculation of
compensation to “an employee . . . for a later injury”). For this reason, the
Appellate Division decision 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), in which
the court discussed the purpose of the apportionment rule embodied in
WCL § 15(7) does not, contrary to appellants’ argument (Br. at 16-17),
support the reduction of death benefits that appellants seek here.
Apportionment to a nonwork-related injury or disease in the context
of a compensation claim may also arise when the Board is determining
compensation for a work-related injury or disease and there has already
been a subsequent nonwork-related injury or disease that affected wage
33
earning capacity. In this context, apportionment occurs in determining
the effect of the nonwork-related injury or disease on the employee’s
reduced wage earning capacity. See WCL § 15(3)(w) (benefits for a non-
schedule permanent partial disability are calculated as two thirds of the
difference between the employee’s average weekly wages at the time of
injury and his or her earning capacity after the injury). The cases of
Matter of Rooney v. Barker’s Department Store, 97 A.D.2d 587 (3d Dep’t
1983), and Matter of Glickman v. Ace Equip. Co., 18 A.D.2d 946 (3d Dep’t
1963), cited by appellants (Br. at 15-16), illustrate this principle. See also
Matter of Cool v. TP Brake & Muffler, Inc., 305 A.D.2d 886 (3d Dep’t 2003)
(upholding Board’s determination to apportion disability award for back
injury 40% to work-related accident and 60% to demolition derby accident
that occurred the following day).
Neither of these contexts implies a legislative intent to allow a death
benefit to be reduced on account of (and in proportion to) a nonwork-
related cause of death. Because the employee’s reduced wage earning
capacity is used to determine compensation benefits, in that context the
Board may apply apportionment rules to account for the effect of a
previous nonwork-related disability or a subsequent nonwork-related
34
injury or disease on the employee’s reduction in wage earning capacity.
However, under WCL § 16, the effect of the work-related injury on the
deceased employee’s wage earning capacity plays no role in the calculation
of death benefits.11 See also WCL § 16(5) (establishing maximum weekly
wages for calculation of death benefits based on date of decedent’s death,
not date of work-related disability). Thus, the fact that WCL § 15
incorporates certain apportionment principles for purposes of calculating
compensation benefits provides no basis to imply a similar principle for
purposes of calculating death benefits.
Appellants argue (Br. at 33-34) that by permitting apportionment of
compensation benefits to a previous disability under WCL § 15(7), the
Legislature has indicated that limiting the employer’s liability is a
primary purpose of the worker’s compensation scheme. As this Court has
recognized, the Workers’ Compensation Law in fact serves a number of
11 Indeed, this difference between death benefits and compensation benefits explains
why the deceased employee’s compensation benefit for his partial permanent
disability was $222 per week, while his survivor’s death benefit for his causally-
related death is $409.31 per week. The deceased employee’s compensation benefit
was based on a permanent partial disability that reduced his wage earning capacity
by 37%. Thus, he had been receiving 37% of two thirds of his average weekly
wages. Because the effect on wage earning capacity is not relevant to calculation of
a death benefit under WCL § 16, his widow was entitled to the full two thirds of the
(maximum allowable) average weekly wages. Compare, supra, at 10 (explaining
calculation of the employee’s underlying compensation award) with, supra, at 13 n.4
(explaining calculation of the death benefit award).
35
purposes and attempts to balance a number of competing concerns,
including the employee’s interest in a swift and certain remedy for work-
related injuries without having to establish fault, the employer’s interest
in limiting its financial exposure through tort liability, and society’s
interest in assisting injured workers and their survivors to remain self -
sufficient through a system of insurance. See Billy v. Consolidated
Machine Tool Corp., 51 N.Y.2d 152, 159-60 (1980); Matter of Landgrebe v.
County of Westchester, 57 N.Y.2d at 8. The Legislature’s judgment as to
how best to serve these sometimes competing interests is entitled to
deference and should not be disturbed by creating new rules not provided
for by statute.
Indeed, through the various differences between death benefits and
compensation benefits, the Legislature signaled its intent to design these
benefits to serve different purposes. 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. As previously noted, death benefits are not tied to the
employee’s loss of wage earning capacity; indeed, they do not strictly serve
as a wage replacement for an employee’s survivors. Under WCL § 16, the
36
amount of the death benefit does not depend on the permanency or degree
of the deceased employee’s work-related disability. Whether the employee’s
work-related disability was permanent or temporary, total or partial, as
long as the work-related injury or disease was a cause of death, the
employee’s survivors are entitled to a full death benefit. The spouse and
children of the deceased employee, the primary beneficiaries of the death
benefit, are entitled to death benefits regardless of whether they were
actually dependent on the deceased employee’s wages. WCL § 16(1-b) to
(3)(b). Additionally, a spouse who does not remarry continues to receive
death benefits for the remainder of his or her life, and a spouse who
remarries receives a lump sum payment equal to two years of benefits
upon remarriage. E.g., WCL § 16(1-c). And even when there are no
dependent survivors (presumed or actual), death benefits in the amount of
$50,000 are still payable to the deceased employee’s parents or the
employee’s estate. See id. § 16(4-b) and (4-d). Thus, the Legislature has
made death benefits available even in situations in which the employee’s
survivors suffer no loss of income at all, and in that circumstance provides
a benefit in an amount that bears no relationship at all to the employee's
prior earning capacity. Rather than compensating for loss of income, this
37
provision compensates for the value of the lost life. See Bill Jacket for Law
1990, ch. 296, at 6, 9, 10 (Division of Budget Memorandum and Sponsors
Memoranda discussing purpose of WCL § 16(4-b)). It is therefore
unsurprising that the Legislature chose to allow for apportionment of
compensation benefits to nonwork-related causes of disability in certain
circumstances, without providing for a reduction in death benefits to
account for nonwork-related causes of death.
POINT III
PRIOR DECISIONS OF THE WORKERS’
COMPENSATION BOARD SUGGESTING
OTHERWISE WERE BASED ON DICTUM FROM THE
APPELLATE DIVISION AND DO NOT
DEMONSTRATE LACK OF CLARITY IN THE
GOVERNING STATUTES
Earlier decisions of the Workers’ Compensation Board ruling the
other way do not, as appellants suggest (Br. 20-21) suggest any lack of
clarity in the statutory scheme. They simply resulted from confusion
over dictum in an Appellate Division decision.
In Matter of Rados v. Woodlawn Water Supply Dist., 31 A.D.2d 879
(3d Dep’t 1969), the Appellate Division affirmed the Board’s decision to
apportion responsibility for paying death benefits equally between two
38
parties: the insurance carrier responsible for payment in connection with
a 1964 work-related heart attack, and the Special Fund for Reopened
Cases on account of another compensable heart attack that had occurred
in 1954. Citing precedent involving compensation claims, however, the
Appellate Division also suggested in dictum that the Board could have
apportioned the death benefits to all six heart attacks, even though the
intervening four were not work-related, if warranted by the medical
testimony. Id. at 880 (citing Matter of Engle, 6 N.Y.2d 449 (1959)). Doing
so would have reduced the death benefits payable. For a time thereafter,
the Board adhered to this dictum and upheld apportionment of the death
benefits to nonwork-related causes of death where warranted by the
evidence.12 See, e.g., Thomas Pest Control, 2000 N.Y. Wrk. Comp.
59113950, 2000 N.Y. Wrk. Comp. LEXIS 120728 (Nov. 21, 2000); Jared
Holt Co., Workers’ Compensation Board Case No. 59412897, 1997 W.L.
122852 (Feb. 28, 1997); see also, e.g., Rochester-Genesee Reg. Trans. Auth.,
2001 N.Y. Wrk. Comp. 79902241, 2001 N.Y. Wrk. Comp. LEXIS 91780
(May 15, 2001) (citing rule that apportionment of death benefits may be
available where the medical evidence warrants). In two subsequent cases,
12 Because all appeals of Workers’ Compensation Board decisions are to the Third
Department, see WCL § 23, a decision from that court on a legal issue would be
controlling precedent in the absence of a decision on the issue from this Court.
39
cited by appellants (Br. at 19, 24-27), although the Appellate Division cited
the apportionment rule applicable to compensation cases, it agreed with
the Board’s analysis that the medical evidence did not warrant
apportionment of death benefits to nonwork-related causes, and thus did
not directly address the legal question whether apportionment was
available. See Matter of Brown v. Harden Furniture, 34 A.D.3d 1028
(3d Dep’t 2006); Matter of Ricci v. W.J. Riegel & Sons, 278 A.D.2d 673
(3d Dep’t 2000).
In 2005, the Board recognized its error in adhering to the dictum in
Rados. In a decision called Buffalo Forge Co., the Board recognized that
the only support for reducing death benefits on account of nonwork-related
causes of death was the dictum in Rados, and not any statutory
authorization. See Buffalo Forge Co., 2005 N.Y. Wrk. Comp. 80205320,
2005 N.Y. Wrk. Comp. LEXIS 6235, at *7-11 (July 25, 2005). It thus
articulated the rule that it has consistently applied since: when a survivor
is entitled to death benefits because the work-related injury was a
contributing cause of death, the death benefit is not apportioned to (and
thereby reduced by) noncompensable injuries or diseases that also caused
the death. See id. at *14 (“(T)here is no legal basis for apportionment of
40
death benefits awards to non work related causes under the Workers’
Compensation Law.”); accord, e.g., Crouse Hinds, 2007 N.Y. Wrk. Comp.
60601230, 2007 N.Y. Wrk. Comp. LEXIS 8931 (July 24, 2007), aff’d sub
nom., Matter of Webb v. Cooper Crouse Hinds Co., 62 A.D.3d 57 (3d Dep’t
2009); Schweitzer Aircraft, 2007 N.Y. Wrk. Comp. 90602865, 2007 N.Y.
Wrk. Comp. LEXIS 5837 (June 22, 2007); State Univ. of N.Y., 2005 N.Y.
Wrk. Comp. 50411746, 2005 N.Y. Wrk. Comp. LEXIS 10365 (Nov. 23,
2005).
The Appellate Division expressly approved this rule in Matter of
Webb v. Cooper Crouse Hinds Co., 62 A.D.3d 57 (3d Dep’t 2009). At the
same time, the Appellate Division acknowledged that its earlier
statements in Rados regarding the availability of apportionment to
nonwork-related causes of death were dicta and should not be followed.
See id. at 60 n.1.
The Board’s initial adherence to dictum in an Appellate Division
decision that has since been specifically renounced by that court provides
no basis to adopt a rule that the WCL itself does not authorize.
41
CONCLUSION
The order of the Appellate Division, affirming the decision of the
Worker’s Compensation Board in which the Board had declined to reduce
the claimant’s death benefit award to reflect nonwork-related causes of
death, should be affirmed.
Dated: Albany, New York
March 15, 2013
BARBARA D. UNDERWOOD
Solicitor General
ANDREA OSER
Deputy Solicitor General
LAURA ETLINGER
Assistant Solicitor General
of Counsel
Respectfully submitted,
ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for Respondent WCB
By:______________________________
LAURA ETLINGER
Assistant Solicitor General
Office of the Attorney General
The Capitol
Albany, New York 12224
Telephone (518) 474-2256
Reproduced on Recycled Paper
*Robert E. B.lotenChelr
STATE OF NEW YORK
WORKERS' COMPENSATION BOARD
POBOX 5205
BINGHAMTON, NY 13902·5205
www.wtlb.I1at•.ny.Ja
(866) 805·3630
State or New York - Workers' Compensation Board
In regard to Antonio Hronclch (Dec'd), WCB Case ##Z070 8165
NOTICE OF DECISION
(Death ClRlm)
u.p/or)lour 'ecorda
At the Workors' Compensation hoaring held on 04/1412010 involving tho claim of Antonio Hronclm (Doc'd) at the
HempllLoad hearing location, Judgo lohn Koumey madCl lftc following dacision, llnWnlPllUld directions:
For funeral expenses, pay to :
Gaudcnzia Hroncich in the amount of$6.000.00
DECISION: No ATF deposit No further action is planned by the Board at this timo.
Claimant·
Social Security No. -
WCB Case No. -
Date of Accldent-
District Office -
Antonio Hroncich (Dec'd)
20708165
09/0212007
Hempstead
Employer - Con Edison
Carrior - Consolidated Edison Co ofNY
ClUTier II> No. • W373005
Camor Case No. - A778402486-0001·0)
Date of Filmg of this Del,islon- 04/1912010
ATENCION
Puode Uamar a Ia oficlJUl de la Junla de Compenaacion Obnlra. on IU area coaespondillntc, OUYO numero de toleCono aparecc a1
pnnOJPIO de III pag1JlIl YPilla IIlfOrmaClon acerca do au reclamaoionCcaao).
EC-23(4/~
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ADDENDUM
Pagol of 1
Al
*Robert E. BelotenChair
STATE OF NEW YORK
WORKERS' COMPENSATION BOARD
POBOX 5205
BINGHAMTON. NY 13902-5205
www.web ltaI,.ny.U8
(866) 805-3630
State of New York - Workers' Compensation Board
In regard to Antonio Hronclch (Dec'd), WCB Case #20708165
NOTICE OF DECISION
(Death Claim)
aepjoryour rwcorda
11874408
At the Workers' Compensation hcaringheld on 01120/2010 mvolvmg the claim of Antonio HronClch (Dec'd) at the
Hempstead hellring location. Judge John Keamey made the following decision. fmdings lind dU'Clotions:
AWARD - TIm EMPLOYER OR INSURANCE CARRIER ARE DIRECTED TO PAY AT ONCE AS FOLLOWS:
Continuing award.
The period from 9/2/2007 to 1/21/20 I0 for 124.6 weeks totaling 551,000.03 is awarded as follows:
Award to:
Gaudenzia Hroncich
Relation
Spouse
DOB Pct Rate / week
66.67% "'$409.31
Total Pay to:
S51,000.03 Gaudenzia Hroncich
"'Rate due to Social Security Offset of $90.69
Carrier Continue Paym ents bi-weekly in the amOlU'lt of$818.62
Any moT/8Y previouslypaid/or the ab()Ve period(s) will be dBductedfrom the total amount
DECISION: The claimant's average weekly wage for the year worked before this work related injury or
ocCupational disease is 5900.00 per agreement. No furthllT action is planned by the Board lit this time.
FEES:
As lien on above award payable by separate check by carrier TO CLAIMANTS REPRESENTATIVE
OR ATTORNEY:
C!aunllnt·
Social Security No. -
WeB CeseNo.·
Date of ACCident -
District Office -
Sum of
$15.000.00
Antonio Hroncich (Dec'd)
20708165
09/02/2007
Hempstead
To
Brecher. FishmlUl, Pasternack
Employer. Con Edison
Carrier· Consolidatea Edison ('.0 ofNY
Carrier In No. - W373005
Carner Case No. - A778402486-0001·01
Date of Filing of thiS Dccislon- 011261201 0
ATENCION.
Puede llamar a la ofiema de la JunlB de Compensacion Obrora, on au area cOIIoBpondicnte. cuyo numaro de tolefono apareca at
prinOiplO de la pagUl8 y pida informacion Bllerca de au reoJamaolon(CB8o).
EC.23 (4/98)
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