Matter of Hronich v. Con Edison

Albany, N.Y.—The New York State Court of Appeals heard the case brought by Antonio Hronich’s widow Gaudenzia Hronich against his former employer Con Edison Company of New York, Inc., Sedgwick Claims Management Service, Inc., and N.Y.S. Workers’ Compensation Board and the Special Disability Fund.

Antonio Hronich, a long-time employee of Consolidated Edison, was diagnosed in 1993 as having asbestosis and asbestos-related pleural disease. The Workers’ Compensation Board found he was permanently partially disabled as a result of occupational lung disease and awarded him disability benefits in proportion to his lost earning capacity. He later developed thyroid cancer, which spread to his lungs.

Antoinio Hronich died in 2007 and his wife, Gaudenzia Hroncih, filed this claim for death benefits under Section 16 of the Workers’ Compensation Law. Her medical expert, “Dr. Ploss offered the only medical opinion on causation of death. He stated there was ‘no doubt’ that ‘this man died of Hurthle cell cancer of the thyroid gland’ and that the lung condition were a minor factor. The doctor apportioned 80% of the causation of death to the tumor and 20% to the compromised lungs from asbestos exposure,” as described by Jill B. Singer, council for the respondent.

The Workers’ Compensation Law Judge held that Hronich’s death was causally related to his occupational lung disease and that liability for benefits may not be apportioned between work-related and non-work related causes of death. The Workers’ Compensation Board upheld the determination. The Appellate Division, Third Department affirmed, rejecting Con Edison’s argument that the claimant’s death benefits should be apportioned to reflect the degree to which thyroid cancer was the primary cause of Antonio Hronich’s death. The Court cited its 2009 decision in Matter of Webb v. Cooper Crouse Hinds Co. (62 AD3d 57), which held that apportionment between work-related and non-work related causes of death is not available based, in part, on “the absence of any indication in Workers’ Compensation Law Section 16 that death benefits are to be apportioned in the same manner as disability benefits” under Workers’ Compensation Law Section 15(7).

Jill Singer argued for the respondent in her brief to the Court of Appeals that “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.”

Singer, council for The Special Disability Fund, argued in her brief the issue before the Court is “one of pure statutory interpretation of WCL Section 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 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.”

Singer’s number one argument in her brief is that the Workers’ Compensation Law provides for apportionment in death and disability claims. Singer argued “it is wellsettled 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 workrelated disability or death. The legislature recognized this equitable principle in WCL Section 15(7) providing for apportionment of benefits in both disability and death claims.” Singer in the respondents Brief continued, “In the very first sentence of WCL section 15(7) it is acknowledged that, ‘the 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 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 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.”

“The Court must give meaning to the plain language of the statute. ‘In constructing 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 constriction, and courts have no right to add to or take away from that meaning. Thus, the Court cannot ignore the reference to death claims,” continued Jill Singer. “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’,” explained Jill Singer, council for the respondent. Singer concluded the respondent’s first argument by writing, “There is nothing in the statute that would support limiting apportionment in death claims to those involving only workrelated factors. WCL Section 15(7) does not distinguish between workrelated or non-work related factors. It only mentioned ‘previous disability’ and its impact upon subsequent injury or death benefits. Thus, the distinction drawn by the Board and affirmed by the Court is unsupported,” argued Singer, council to The Special Disability Fund.

Singer’s second argument in the brief to the Court of Appeals argues “this Court’s instant decision limiting apportionment of death benefits is inconsistent with statute and precedent.” She argues, “There is a tougher standard in place for non-work related 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.”

The Appellate Division rejected Con Edison’s argument citing its 2009 decision of Matter of Webb v. Cooper Crouse Hinds. The Jill Singer in her argument to the Court of Appeals used Webb v. Cooper to emphasize her argument. “In Webb v. Cooper, 62 A.D.3d 57 (3rd 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 Section 16 that apportionment is recognized in death claims. This, the Webb Court overlooked the plain language of WCL Section 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 authority for such apportionment; pinpointing a lack of citation to WCL Section 15(7) in caselaw; and lack of support of apportionment of death benefits between work-related and non-work related causes. 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,” argued Singer in her brief.

Singer continued the argument by writing, “In Webb, the Court rationalized that WCL Section 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 Section 15(7) and the Court’s own precedent.”

“Rejecting the plain language in WCL Section 15(7), and baring 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,” continued Jill Singer. In conclusion Singer argues in the brief, “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.”

Con Edison’s attorney Steven M. Scotti argued in his brief to the Court of Appeals, “The plain language of Section 15(7) expressly provides that a previous disability will not preclude compensation for a later injury or ‘death resulting therefrom,’ and that compensation for death will be determined on the basis of the decedent’s ‘earning capacity at the time of the later injury’ causing death. This section clearly authorizes apportionment in death benefit claims. The Legislature used the term ‘death’ twice in Section 15(7) and did so to apply the apportionment provisions to death benefit claims.” It says, “Apportionment appropriately confines compensation to the injury caused by employment” and “prevents a windfall to claimants at the expense of employers for injuries that were not related to employment.”

Within their brief Con Edison’s council Steven Scotti argued, “There was inadequate analysis by the Supreme Court, Appellate Division to abrogate the clear intent and meaning of the statute supporting apportionment in any claim for compensation.” Scotti and Co-counsel David W. Faber argue in their brief, “The Board’s changed position was accepted in the Supreme Court, Appellate Division’s ruling in Matter of Webb v. Cooper Crouse Hinds Co., 62 A.D.3. 57 (3d Dep’t 2009). The Appellants are not stating that the Board is bound by its original interpretation of the statute, but Appellants are asserting that the Board’s original interpretation was correct and that the Appellate Division accepted the Board’s changed position without analyzing Section 15(7) and 10, and without recognizing the Appellate Division’s prior decisions that applied the apportionment test to a death benefit claim.”

Faber and Scotti, the attorney’s for Con Edison continued, “The fundamental principal supporting apportionment, embedded in the WCL and codified in Section 15(7) and Section 10, should not have been so easily discarded without proper consideration of the issue presented. There was no discussion of the statutory provisions in the decision below or in Webb. The Supreme Court, Appellate Division below provided no analysis of Section 10 or Section 15(7) or of the earlier decisions where the Section 15(7) apportionment test was applied in claims for death benefits. Moreover, the reasons set forth in the Webb decision to deny apportionment in a death benefit claim have been shown to be insufficient.”

David W. Faber and Steven Scotti continued Con Edison’s argument, “The Board’s Brief fails to address Appellant’s specific objections to the ratio decidendi supporting the Webb decision. The precept that a claim for work-related death is a separate and distinct legal proceeding brought by the beneficiary’s dependents, that the work-related condition need only be a contributing factor to the death, and that apportionment language is absent in WCL Section 16 have all been shown in the original Brief for Appellants to be inadequate to abrogate the clear intent and meaning of WCL Section 25(7).”

“The apportionment principle set forth in the WCL applies to death benefit claims, whether that apportionment is based on a disability due to a work-related or nonwork- related injury or condition. There is no legal basis to carve out from the apportionment test only those death benefit claims where apportionment is based on a non-work-related disability. The plain language and Legislative intent expressed in Section 15(7) support the fundamental principle embedded in the statute, expressed generally in Section 10, that liability be apportioned in proportion to causation,” explained Con Edison’s council Faber and Scotti.

In conclusion Faber and Scotti argued, “Wherefore, the Appellants respectfully request that the Order of the Appellate Division affirming the Workers’ Compensation Board be reversed and the case remanded to the Board for determination on apportionment.”

The State of New York, represented by attorney Michael Cardozo in its brief to the Court of Appeals presented the question “did the Appellate Division, Third Department, err in ruling that WCL Section 15(7) does not permit apportionment between work-related and non-work related medical conditions in a death case.”

The City of New York’s interest in the case as described in their brief by attorney Michael Cardozo is “the City of New York is a self-insurer of its employees’ workers’ compensation benefits. The Workers’ Compensation Division of the Law Department administers the claims of all City employees and represents the City at hearings held before the Workers’ Compensation Board.”

The brief of the City of New York concluded with “the order appealed from should be reversed,” according to Michael A. Cardozo, Corporation of The City of New York.

The New York State Court of Appeals heard the case of the Matter of Hronich v. Con Edison on September 9, 2013.