IN RE: the Claim of Muriel WEBB (2009)

Appeal from a decision of the Workers' Compensation Board, filed July 24, 2007, which ruled, among other things, that decedent's death was causally related to his occupational illness.

In 1997, Jerry Webb (hereinafter decedent) was found to have a permanent partial disability, which was apportioned 75% to an occupational lung disease and 25% to noncompensable causes.   Decedent was hospitalized in June 2005 in connection with his ongoing history of upper respiratory infection and fainting spells.   Decedent's treating physician, Robert Newman, indicated that while decedent had a history of prostate cancer, a prostate specific antigen test ruled out a recurrence or metastasis of the cancer.   Decedent was discharged in August 2005 with diagnoses of spinal abscess, chronic obstructive pulmonary disease, diabetes, post-radiation status for prostate cancer, gastroparesis and candida esophagitis.   He was then admitted into hospice care, and he died in October 2005.   His death certificate lists the cause of death as chronic obstructive pulmonary disease, due to or as a consequence of asbestosis.   Following hearings, a Workers' Compensation Law Judge (hereinafter WCLJ) awarded death benefits to claimant, decedent's wife, finding that decedent's death was causally related to his occupational disease.   The Workers' Compensation Board affirmed, prompting this appeal by the employer.

We affirm.   Initially, we reject the employer's argument that the Board applied the incorrect standard of review in determining whether decedent's death was causally related to his established occupational lung disease.   While the Board indicated that it found that “sufficient credible medical evidence” supported a causal relationship, rather than referencing the required preponderance of the evidence standard (see e.g. Matter of Bochkarev v. Henry's Landscaping Serv., 10 A.D.2d 398, 400, 200 N.Y.S.2d 100 [1960] ), a review of the Board's decision nonetheless makes clear that it “weigh[ed] the evidence and ․ [gave] effect to its preponderance” (Matter of Brown v. Mobil Oil Co., 20 A.D.2d 833, 833, 247 N.Y.S.2d 837 [1964];  accord Matter of Ellingwood v. Liberty Group Publ., Inc., 38 A.D.3d 1108, 1109, 833 N.Y.S.2d 274 [2007] ).

 Turning to the merits, we note that “[t]o be entitled to benefits, the claimant had only to prove that the death was causally related to the injury” (Matter of Zechmann v. Canisteo Volunteer Fire Dept., 85 N.Y.2d 747, 753, 628 N.Y.S.2d 249, 651 N.E.2d 1268 [1995] ).   Decedent's death certificate, the workers' compensation proof of death form and a contemporaneous letter signed by Newman, as the treating physician, list the cause of death as lung disease resulting from occupational exposure to asbestos.   Similarly, Newman testified that the direct cause of death was chronic obstructive pulmonary disease, asbestosis was a contributing factor, and both conditions were related to decedent's industrial exposures.   Newman further explained that while decedent had a history of prostate cancer, it was in remission and testing ruled out metastasis of the cancer.   In our view, this proof provides substantial evidence to support the Board's determination that decedent's death was a consequence of his occupational lung condition.   While the employer's medical expert concluded that decedent's pulmonary disease was not sufficiently severe to cause his death, it is within the Board's sole province to resolve conflicting medical evidence (see Matter of Brown v. Clifton Recycling, 1 A.D.3d 735, 736, 767 N.Y.S.2d 160 [2003];  Matter of Altes v. Petrocelli Elec. Co., 283 A.D.2d 829, 830, 725 N.Y.S.2d 123 [2001];  Matter of Tompkins v. Sunrise Heating Fuels, 271 A.D.2d 888, 889, 707 N.Y.S.2d 272 [2000] ).

 Finally, we reject the employer's argument that the Board erred in failing to apportion claimant's death benefits in the same manner that decedent's lifetime benefits were apportioned-75% to his occupational disease and 25% to unrelated causes.  “[A] claim for death benefits-often, as here, involving the quite different question of whether the injury was causally related to the death-is a separate and distinct legal proceeding brought by the beneficiary's dependents and is not equated with the beneficiary's original disability claim” (Matter of Zechmann v. Canisteo Volunteer Fire Dept., 85 N.Y.2d at 751, 628 N.Y.S.2d 249, 651 N.E.2d 1268;  see Matter of Mace v. Owl Wire & Cable Co., 284 A.D.2d 672, 675, 727 N.Y.S.2d 487 [2001] ).   Moreover, on a claim to recover death benefits, “the work-related illness need not be the sole or even the most direct cause of death, provided that the claimant demonstrates that the compensable illness was a contributing factor in the decedent's demise” (Matter of Imbriani v. Berkar Knitting Mills, 277 A.D.2d 727, 730, 716 N.Y.S.2d 149 [2000];  see Matter of Altes v. Petrocelli Elec. Co., 270 A.D.2d 767, 769, 704 N.Y.S.2d 372 [2000];  Matter of Losso v. Tesco Traffic Servs., 248 A.D.2d 812, 813, 670 N.Y.S.2d 244 [1998];  see also Matter of Brown v. Clifton Recycling, 1 A.D.3d at 736, 767 N.Y.S.2d 160).   In reliance upon this line of cases and the absence of any indication in Workers' Compensation Law § 16 that death benefits are to be apportioned in the same manner as disability benefits (cf. Workers' Compensation Law § 15[7];  Matter of Engle v. Niagara Mohawk Power Corp., 6 N.Y.2d 449, 452-453, 190 N.Y.S.2d 348, 160 N.E.2d 833 [1959] ), the Board has concluded-correctly, in our view-that apportionment is not available between work-related and nonwork-related causes of death (see Matter of Buffalo Forge Co., 2005 WL 1794390, *2-5, 2005 N.Y. Wrk. Comp. LEXIS 6235, *6-14 [WCB No. 8020 5320, July 25, 2005];  see also Matter of State Univ. of N.Y., 2005 WL 3368097, *1-2, 2005 N.Y. Wrk. Comp. LEXIS 10365, *3-6 [WCB No. 5041 1746, Nov. 23, 2005] ).¹  Inasmuch as substantial evidence supports the Board's determination that decedent's illness was a contributing factor in his death, claimant is entitled to benefits without apportionment.

ORDERED that the decision is affirmed, without costs.

FOOTNOTES

1.   As the Board has acknowledged, Matter of Rados v. Woodlawn Water Supply Dist., 31 A.D.2d 879, 879, 297 N.Y.S.2d 403 [1969] contains dicta that could be read to suggest that such apportionment may be appropriate under certain circumstances.   To the extent that Matter of Rados sets forth a rule that is contrary to our decision herein, it should no longer be followed.

MERCURE, J.P.

LAHTINEN, MALONE JR. and KAVANAGH, JJ., concur.