The Court of Appeals of New York recently affirmed a lower court’s decision that awarded full death benefits to an employee’s widow where expert medical evidence indicated that the employee’s death had been caused 80 percent by thyroid cancer and 20 percent by work-related asbestosis, without apportionment. The high court indicated that, as a general rule, apportionment does not apply in cases in which the prior condition was not a disability in a compensation sense; that is to say where the prior condition did not result in a diminution in earning capacity. Stating the rule alternatively, the court said that apportionment was not appropriate where the claimant's prior condition—his thyroid cancer—was not the result of a compensable injury and the claimant was fully employed and able to effectively perform his or her duties despite the non-compensable preexisting condition.
Reported by Thomas A. Robinson, J.D.
LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.
See Hroncich v. Con Edison, 2013 N.Y. LEXIS 2852 (Oct. 15, 2013) [2013 N.Y. LEXIS 2852 (Oct. 15, 2013)]
See generally Larson’s Workers’ Compensation Law, § 90.01 [90.01]
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.
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