To be Submitted:
By Jill B. Singer, Esq.
Appellate Division, Third Department Index No.: 510546
STATE OF NEW YORK
COURT OF APPEALS
In the Matter of the Claim for Compensation
Under the Workers’ Compensation Law Made by
GAUDENZIA HRONCICH, Claimant- Respondent,
-against-
CONSOLIDATED EDISON CO. OF NY, INC., Employer- Appellant,
SEDGWICK CLAIMS MANAGEMENT
SERVICES, INC., Carrier-Appellant,
SPECIAL DISABILITY FUND, Respondent,
-and-
WORKERS’ COMPENSATION BOARD, Respondent.
Workers’ Compensation Board Case No.: 2070 8165
RESPONDENT’S BRIEF
SPECIAL FUNDS CONSERVATION COMMITTEE
STEVEN M. LICHT, ESQ.
Attorney for Special Funds Conservation Committee
Submitted by:
JILL B. SINGER, ESQ.
Of Counsel
2 Tower Place
Albany, New York 12203
Telephone No.: (518) 438-3585
TABLE OF CONTENTS
TABLE OF CONTENTS………………………………………………………….i
TABLE OF AUTHORITIES………………………………………………........ii-v
QUESTION PRESENTED…………………..........................................................1
PRELIMINARY STATEMENT…………………..............................................2-3
STATEMENT OF NATURE OF THE CASE AND THE FACTS…………….4-6
ARGUMENT……………………………………………………………………...6
POINT I…………………………………………………………………..6-8
THE WORKERS’ COMPENSATION LAW
PROVIDES FOR APPORTIONMENT IN DEATH AND
DISABILITY CLAIMS.
POINT II………………………………………………………………..8-13
THIS COURT’S INSTANT DECISION LIMITING
APPORTIONMENT OF DEATH BENEFITS IS
INCONSISTENT WITH STATUTE AND
PRECEDENT.
CONCLUSION………………………………………………………………….14
i
TABLE OF AUTHORITIES
COURT DECISIONS
Pages
Barlog v. Board of Water, 239 A.D.225 at 226 (3
rd
Dept. 1933)
…………………………………………………………………………...12
Brown v. Harden, 34 A.D.3d 1028 (3
rd
Dept. 2006)
…………………………………………………………………………9-10
Bruno v. Kelly, 301 A.D.2d 730 (3
rd
Dept. 2003)
…………………………………………………………………………….9
Engle v. Niagara, 6 N.Y.2d 449 (1959)
…...………………………………………………………………………..6
Hogan v. Hilltop, 303 A.D.2d 822 (3
rd
Dept. 2003)
………………………………………………………………………….....9
Johnson v. Feinberg, 305 A.D.2d 826 (3
rd
Dept. 2003)
…………………………………………………………………………11
Krausa v. Totales, 84 A.D.3d 1545 (3
rd
Dept. 2011)
…………………………………………………………………………...11
People v. Caponigri, 169 misc. 9 at 15, (N.Y. Mag.Ct. 1938)
…………………………………………………………………………….8
Putnam v. Harrison, 12 A.D.2d 543 (3
rd
Dept. 1960)
…………………………………………………………………………….6
Rados v. Woodlawn, 31 A.D.2d 879 (3
rd
Dept. 1969)
……………………………………………………………………….10, 12
Ricci v. W.J Riegel, 278 A.D.2d 673 (3
rd
Dept. 2000)
………………………………………………………………………….....9
Rosenblum v. New York State, 309 A.D.2d 120 (3
rd
Dept. 2003)
…………………………………………………………………………..7-8
ii
Tompkins v. Hunter, 149 N.Y. 117 at 122-123 (1986)
…………………………………………………………………………….7
Webb v. Cooper, 62 A.D.3d 57 (3
rd
Dept. 2009)
………………………………………………………….1-2, 5, 9-10, 12-14
iii
WORKERS’ COMPENSATION BOARD DECISIONS
Buffalo Forge Company, 2005 WL 1794390 (Workers’ Comp. Bd., July 25,
2005)
………………………………………………………………………..2, 10-11
iv
STATUTORY AUTHORITY
§2(8) of the New York State Workers’ Compensation Law………………….11
§3(2)(29) of the New York State Workers’ Compensation Law………………5
§15(7) of the New York State Workers’ Compensation Law…...1-3, 6-8, 10-13
§15-8(ee) of the New York State Workers’ Compensation Law………………5
§16 of the New York State Workers’ Compensation Law………………..10-12
v
QUESTION PRESENTED
QUESTION:
Did the Third Department err in denying apportionment in a
compensable death claim where the death was based in part on
non-work related factors?
ANSWER:
Yes. WCL §15(7) provides for apportionment of benefits
in both death and disability claims.
ANSWER BELOW:
No. The Third Department relied upon its decision in
Webb v. Cooper, 62 A.D.3d 57 (3
rd
Dept. 2009) to reject
apportionment based upon a non-compensable prior
condition.
1
PRELIMINARY STATEMENT
On behalf of the Special Disability Fund, Special Funds Conservation
Committee, (“Special Funds”), respectfully submits this brief in support of the
arguments of Con Edison, (“Appellant”) and the City of New York, as Amicus
Curiae. Appellant and the City of New York argue that the Third Department
improperly denied apportionment in a compensable death claim where the death
was due in part to non-work related thyroid cancer.
Relying in part upon its prior decision of Webb v. Cooper, 62 A.D.3d 57 (3
rd
Dept. 2009), the Third Department found apportionment of death benefits was
unavailable here as this death involved non-compensable factors. Notably, prior to
the Workers’ Compensation Board’s, (“Board”), Decision in Buffalo Forge
Company, 2005 WL 1794390 (Workers’ Comp. Bd., July 25, 2005), it considered
apportionment in death claims without such distinction. An analysis of these
decisions fails to support a rational basis for the shift in the Board’s and the
Court’s position prohibiting apportionment in death claims based upon non-work
related factors.
This issue is one of pure statutory interpretation of WCL §15(7), and
whether it prohibits apportionment in death claims based upon non-compensable
prior conditions. The plain language of the statute offers no support for the Board
2
and the Third Department’s conclusion. The statute allows for apportionment in
death claims and draws no distinction between compensable and non-compensable
prior conditions.
3
STATEMENT OF NATURE OF THE
CASE AND THE FACTS
The facts and procedural history of this claim are set forth in detail in
Appellant’s brief and are incorporated by reference herein. The facts are not in
dispute in this claim.
In brief summary, Antonio Hroncich, (“claimant-respondent” or
“decedent”), suffered a compensable disability claim established for asbestosis and
asbestos-related pleural disease with a date of disablement of June 4, 1993. (R.
30).
He deceased on September 2, 2007 and a death claim was filed by his
widow. (R. 37-38). The direct cause of death was Hurthle cell thyroid cancer as a
tumor mass eroded into his airway causing the lungs to fill with blood. (R.51, 90-
91). The decedent had a history of Graves disease of the thyroid as far back as
1996. He underwent a total thyroidectomy on June 3, 1999 and was diagnosed
with Hurthle cell carcinoma of the thyroid. (R. 48).
Dr. Ploss offered the only medical opinion on causation of death. He stated
that there was “no doubt” that “this man died of Hurthle cell cancer of the thyroid
gland” and that the lung conditions were a minor factor. (R. 47-51). The doctor
apportioned 80% of the causation of death to the tumor and 20% to the
compromised lungs from asbestos exposure. (R. 51, 92). These figures on
4
apportionment were not based upon any quantifiable data but on the doctor’s “gut
feeling,” since he opined that the “major” factor in the demise was the thyroid
cancer. (R. 96-97).
The Board Panel in Decision filed December 18, 2009, found that the
underlying asbestosis and asbestos-related pleural diseases were contributing
factors in the death; thereby establishing a compensable consequential death. The
Board relied upon the Court’s holding in Webb v. Cooper, 62 A.D.3d 57 (3
rd
Dept.
2009) upon denying apportionment between the work related and non-work related
causes of death. (R. 136-139).
Because this claim involves the establishment of death in part due to
underlying asbestosis, a dust disease under WCL §3(2)(29); the Special Disability
Fund becomes liable for reimbursement to the self-insured employer for benefits
paid exceeding the statutory retention period. (See WCL §15-8(ee)).
The Appellant filed a December 28, 2009 Notice of Appeal of the Board’s
decision to the Third Department. (R. 2-3). The Special Funds filed a Brief in
support of Appellant’s arguments.
By Opinion and Order filed January 19, 2012, the Third Department
affirmed the Board’s finding that apportionment is unavailable. (R. viii-x).
Appellant filed a Motion for Leave to this Court and by Order resulting from
5
a session held on September 6, 2012, the motion was granted. (R. vi-vii).
ARGUMENT
POINT I
THE WORKERS’ COMPENSATION LAW
PROVIDES FOR APPORTIONMENT IN DEATH
AND DISABILITY CLAIMS.
It is well-settled that a work-related injury need not be the sole cause of
death in order for the death to be compensable. The same is true for workplace
injuries where pre-existing conditions may impact the occurrence of the workplace
injury. However, it is well-recognized that the employer’s liability is reduced
in proportion to causation assigned to the pre-existing condition attributable to the
work-related disability or death. (See Engle v. Niagara, 6 N.Y.2d 449 (1959);
Putnam v. Harrison, 12 A.D.2d 543 (3
rd
Dept. 1960)). The legislature recognized
this equitable principle in WCL §15(7) providing for apportionment of benefits in
both disability and death claims.
In the very first sentence of WCL §15(7) it is acknowledged that, “[t]he fact
that an employee has suffered previous disability or received compensation
therefore shall not preclude him from compensation for a later injury nor preclude
compensation for death resulting therefrom”. . . . Moreover, it goes on to state,
“in determining compensation for the later injury or death . . . an employee who is
6
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 . . .”. (Id.)
Thus, the plain language of the statute takes into account a prior disability as
it relates to both disability and death claims. The Court must give meaning to the
plain language of the statute. “In construing statutes, it is a well-established rule
that resort must be had to the natural signification of the words employed, and if
they have a definite meaning, which involves no absurdity or contradiction, there is
no room for construction, and courts have no right to add to or take away from that
meaning.” Tompkins v. Hunter, 149 N.Y. 117 at 122-123 (1986). Thus, the Court
cannot ignore the reference to death claims.
Although Courts generally give deference to the practical construction and
interpretation of statutes by agencies charged with implementing them if not
unreasonable; here, the Board’s interpretation is clearly not reasonable. The statute
clearly and unambiguously mentions “death.”
Deference is usually afforded to administrative agencies based upon its
presumed specialized competency in the administration of the statute. (See
Rosenblum v. New York State, 309 A.D.2d 120 (3
rd
Dept. 2003), where Court gave
deference to Board’s interpretation of “Board Certified” which implicated the
7
Board’s specialized knowledge regarding the professional qualifications of
physicians empowered to examine claimants). However, no such specialized
competency is implicated here. This issue involves pure statutory interpretation.
Thus, deference need not be afforded to the Board.
“It is not the province of the court to read into the statutes matter which is
not there regardless of how strongly the court feels that such action would serve
the ends of justice. It is the duty of the court to interpret the law as written, giving
to the language of the regulation the free, full, fair and correct meaning.” People v.
Caponigri, 169 misc. 9 at 15, (N.Y. Mag.Ct. 1938).
There is nothing in the statute that would support limiting apportionment in
death claims to those involving only work-related factors. WCL §15(7) does not
distinguish between work-related or non-work related factors. It only mentions
“previous disability” and its impact upon subsequent injury or death benefits. (Id.).
Thus, the distinction drawn by the Board and affirmed by the Court is unsupported.
POINT II
THIS COURT’S INSTANT DECISION LIMITING
APPORTIONMENT OF DEATH BENEFITS IS
INCONSISTENT WITH STATUTE AND
PRECEDENT.
Apportionment is considered in disability claims between both work and
non-work related factors. There is a tougher standard in place for non-work related
8
conditions as opposed to work-related conditions. The non-compensable condition
must impact the claimant’s ability to function at work and be disabling in a
compensation sense for apportionment to be appropriate. (See Bruno v. Kelly, 301
A.D.2d 730 (3
rd
Dept. 2003)). Thus, the Court rejected apportionment in Hogan v.
Hilltop, 303 A.D.2d 822 (3
rd
Dept. 2003) despite a prior non-compensable back
condition where the claimant was able to work effectively without restrictions.
(Id.).
Remarkably, prior to the Appellate Division’s Decision in Webb v. Cooper,
62 A.D.3d 57 (3
rd
Dept. 2009), the Court considered apportionment involving non-
work related factors in death claims. In Ricci v. W.J Riegel, 278 A.D.2d 673 (3
rd
Dept. 2000), the claimant suffered from coronary artery disease before undergoing
a fatal heart attack due to exertion at work. Notably, coronary artery disease was a
non-compensable pre-existing condition. Apportionment was claimed based upon
death caused by non-work related coronary artery disease as well as physical
exertion at work. The Court entertained apportionment, but rejected it because
there was no evidence that the claimant was unable to effectively perform his job
prior to his death. Furthermore, the non-compensable condition was not even
diagnosed prior to death. (Id.).
Similarly, in Brown v. Harden, 34 A.D.3d 1028 (3
rd
Dept. 2006), the
9
claimant died after physical exertion at work as a result, in large part, due to the
prior conditions of obesity and cardiomyopathy. However, apportionment was
denied since “the claimant was able to effectively perform his or her job duties at
the time of the work-related [incident] despite the preexisting condition” (Id. at
630) (internal citations omitted). Moreover, in Rados v. Woodlawn, 31 A.D.2d 879
(3
rd
Dept. 1969), involving six separate heart attacks, with only the first and last
ones being compensable; the Court indicated that based upon the medical evidence
the Board could have apportioned death benefits amongst all six of the episodes,
(although involving non-work related conditions). Significantly, apportionment
was recognized as a legal option premised upon the medical evidence in the case.
However, in Webb v. Cooper, 62 A.D.3d 57 (3
rd
Dept. 2009), the Court
refused to consider apportionment in part based upon the Board’s decision in
Buffalo Forge Company 2005 WL 1794390 (Work. Comp. Bd., (July 25, 2005)),
and the absence of any indication in WCL §16 that apportionment is recognized in
death claims. Thus, the Webb Court overlooked the plain language of WCL §15(7)
which clearly applies apportionment to both disability and death claims; and its
reliance upon Buffalo was misplaced.
In Buffalo, the Board Panel changed its position with respect to
apportionment in death claims. It explained that there was a lack of judicial
10
authority for such apportionment; pinpointing a lack of citation to WCL §15(7) in
caselaw; and lack of support of apportionment of death benefits between work-
related and non-work related causes. However, significantly, the Board then cited
to cases such as Johnson v. Feinberg, 305 A.D.2d 826 (3
rd
Dept. 2003), and others,
including those mentioned above, where apportionment with a prior non-
compensable condition was considered, yet ultimately denied for evidentiary
reasons. (Id). Therefore, apportionment had been acknowledged as valid by the
Court even if the ultimate outcome did not result in apportionment. Thus, the
Board’s Decision in Buffalo outright rejecting apportionment in a death claim
based upon non-work related factors lacks validity and authority.
The Board in Buffalo discussed WCL §16 and emphasized the distinction
between death claims versus disability claims to support its conclusion. However,
although death and disability claims are separate and distinct claims, death claims
by definition are linked to an underlying injury. WCL §2(8) defines compensable
death as resulting from an injury arising out of and during the course of
employment. (Id.). In Krausa v. Totales, 84 A.D.3d 1545 (3rd Dept. 2011), the
Third Department noted that ‘death [is not] a new injury’ or accident, ‘but rather a
new claim consequentially related to the original injury.’ (Id.) (Internal citations
omitted).
11
Further, although death benefits seek to compensate the decedent’s
dependents, as opposed to the injured worker in a disability claim; benefits are still
based upon loss of earnings. “Loss or diminution of wage-earning ability is the
foundation upon which compensation awards and death benefits are computed.”
(Barlog v. Board of Water, 239 A.D.225 at 226 (3
rd
Dept. 1933). Apportionment
still applies to limit the employer’s liability to the extent of the contribution of the
work related component in both death and disability claims. Thus, the Board’s
conclusion banning apportionment only from applying in the case of death
contributed by non-work related factors is irrational.
The Webb Court even dismissed its own recognition of this in Rados, supra,
where it recognized that non-compensable prior heart attacks could be apportioned
in a subsequent death claim, as mere “dicta.” (Id.). How could this be so casually
rejected?
In Webb, the Court rationalized that WCL §16 did not give any
indication that death benefits were to be apportioned like in disability claims; and
thereby gave deference to the Board’s conclusion that apportionment was not
available between non-compensable and compensable conditions without any
statutory analysis. Yet, this determination directly circumvents the plain language
of WCL §15(7) and the Court’s own precedent.
12
Rejecting the plain language in WCL §15(7), and barring apportionment in
death claims involving non-compensable conditions, leads to the unjust result of
increasing the liability of employers where the work related component may be
only an insignificant and minimal factor in the claimant’s demise. This
disparaging result is clearly demonstrated in the present case where the only
credible medical evidence supports a death caused primarily by unrelated thyroid
cancer.
13
CONCLUSION
WHEREFORE, on behalf of the Special Disability Fund, Special Funds
Conservation Committee respectfully requests that the Court’s decision, refusing to
revisit its Decision in Webb, and finding apportionment unavailable in death
claims, be reversed.
Respectfully Submitted,
JILL B. SINGER, ESQ.
2 Tower Place
Albany, New York 12203
Telephone No.: (518) 438-3585
Of Counsel to
STEVEN M. LICHT, ESQ.
Attorney for Special Funds
Conservation Committee
SPECIAL FUNDS
CONSERVATION COMMITTEE
14