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In the Matter of the Claim of v. Con Edison et al

State of New York Supreme Court, Appellate Division Third Judicial Department


January 19, 2012

IN THE MATTER OF THE CLAIM OF GAUDENZIA HRONCICH, RESPONDENT,
v.
CON EDISON ET AL., APPELLANTS, AND SPECIAL DISABILITY FUND, RESPONDENT. WORKERS' COMPENSATION BOARD, RESPONDENT.

Appeal from a decision of the Workers' Compensation Board, filed December 18, 2009, which ruled that decedent's death was causally related to his occupational illness.

The opinion of the court was delivered by: Mercure, Acting P.J.

MEMORANDUM AND ORDER

Calendar Date: November 14, 2011

Before: Mercure, Acting P.J., Rose, Lahtinen, Kavanagh and McCarthy, JJ.

In 1993, Antonio Hroncich (hereinafter decedent) was diagnosed with asbestosis and asbestos-related pleural disease. He was ultimately found to have a permanent partial disability as a result of his occupational lung disease. He later developed thyroid cancer, which progressed into his lungs. He died in 2007 and claimant, his wife, filed this claim for death benefits, which was controverted by the employer. At the hearing on the claim, physician Lester Ploss testified that decedent's death was attributable 20% to his work-related illness and 80% to thyroid cancer. The Workers' Compensation Law Judge found that decedent's death was causally related to his work-related illness and that apportionment was not available. The Workers' Compensation Board affirmed.

The employer and its third-party administrator (hereinafter collectively referred to as the employer) appeal, arguing that claimant's death benefits should be apportioned in the same manner as decedent's lifetime benefits were apportioned. However, as the employer correctly notes, this Court rejected the identical argument in Matter of Webb v Cooper Crouse Hinds (62 AD3d 57 [2009]), explicitly holding that "apportionment is not available between work-related and non-work-related causes of death" (id. at 60). We are not persuaded by the employer's arguments urging us to re-examine and overrule Webb. Indeed, we reiterate that to the extent prior cases may contain language that could be read to suggest that apportionment may be appropriate under certain circumstances, those cases should not be followed (see id. at 60 n). Accordingly, inasmuch as the record concededly contains substantial evidence supporting the Board's determination that decedent's occupational illness contributed to his death, claimant is entitled to death benefits without apportionment.

Rose, Lahtinen, Kavanagh and McCarthy, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

20120119

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