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Cherry, Edson & Kelly, LLP, Carle Place (David W. Faber of counsel), and Steven M. Scotti, New York City, for appellants.
Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer of counsel), for Special Disability Fund, respondent.
Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger, Barbara D. Underwood and Andrea Oser of counsel), for Workers' Compensation Board, respondent.
Michael A. Cardozo, Corporation Counsel, Brooklyn (John Sweeney of counsel), for City of New York, amicus curiae.
Section 16 of the Workers' Compensation Law authorizes death benefits when a work-related injury or disease " causes death," which the Appellate Division has interpreted to mean " contributes to death" ( see Matter of Imbriani v. Berkar Knitting Mills, 277 A.D.2d 727, 730, 716 N.Y.S.2d 149 [3d Dept.2000] ). At issue on this appeal is whether the Workers' Compensation Law requires
apportionment of death benefits between work-related and non-work-related causes— i.e., mandates the Workers' Compensation Board (the Board) to factor out non-work-related causes of death when making the award. We hold that the statute does not contemplate such apportionment.
In 1993, Antonio Hroncich (Hroncich) was diagnosed with asbestosis and asbestos-related pleural disease resulting from his employment as a plumber's helper and mechanic at the Consolidated Edison Company [998 N.E.2d 378] of N.Y., Inc. (Con Ed), where he worked from January 6, 1958 until his [975 N.Y.S.2d 715] retirement on February 28, 1993 at the age of 61. The Board subsequently classified Hroncich as permanently partially disabled as of June 4, 1993. Hroncich's average weekly wages for the prior year were $900, and he was found to have suffered a loss in earning capacity of 37%, or $333 per week. In view of the nature of Hroncich's disability (a non-schedule permanent partial disability), his compensation benefits were calculated as two thirds of his reduced earning capacity, or $222 per week ( see Workers' Compensation Law § 15[w] ).
In 1999 Hroncich was diagnosed with thyroid cancer, unrelated to his work at Con Ed. The thyroid cancer eventually progressed to Hroncich's lungs, and he was admitted to the hospital on an emergency basis on August 1, 2007. He died on September 2, 2007. On October 30, 2007, Hroncich's widow, Gaudenzia (claimant), filed a claim with the Board for death benefits from Con Ed, which is a self-insured employer. Con Ed's third-party administrator, Sedgwick Claims ...