The highest court in NY recently upheld a long standing rule that death claims in comp are not apportioned. (Hroncich v. Con. Ed.) If a work condition contributes to or accelerates death, however slightly, death benefits are paid entirely by the employer, notwithstanding that unrelated, non-work, conditions were overwhelmingly responsible.
Long-Standing Death Claim Rule Potentially Being Challenged
In NY, that is not new; it has been the rule for decades. What is new is that the New York’s Court of Appeals is not precisely backing that result. Instead, it is acknowledging the rationality of apportionment but saying that the legislature must change the law.
The case itself involved an old asbestosis claim which was allowed, but the former employee later died from an unrelated cancer. However, there was testimony that the earlier asbestosis diminished lung capacity and, therefore, contributed to the death.
The court seems to have realized that in the past virtually all claims for asbestosis were allowed, even though most resulted in little “disability” until retirement age, at which time claims for what were actually supplements to retirement were made.
Cost of Old Death Claims Could Exceed $10 Billion
Currently, there are tens of thousands, or more, of such old claims for chronic conditions that have been allowed, not just asbestosis, all of which can later be said to contribute to, or accelerate, death. This has been no secret to NY comp lawyers, who have been quite willing to close these claims, often with little lost time, knowing that all will eventually mature into a death claim.
The aggregate cost of these warehoused claims could exceed 10 billion dollars at present value. This could easily account for the court’s new found wariness.
Court Suggests Legislature Rewrite Law
The court has gently suggested to the legislature that this might be a section of the law that it should wish to consider rewriting. Such suggestions are not easily ignored. The long term potential of staying the course will add greatly to the problems of the NY comp system. One dissenting judge hinted that many of these claims, rather than be allowed or apportioned, should be dismissed entirely.
Employers should be aware that what are treated as nuisance claims often mature decades later into claims with potential costs expressed in fractions of a million dollars.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. [email protected]
Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: [email protected].
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