IN RE: the Claim of Denise PETROCELLI

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Denise PETROCELLI, Appellant, v. SEWANHAKA CENTRAL SCHOOL DISTRICT et al., Respondents. Workers' Compensation Board, Respondent.

Decided: September 25, 2008

Before:  CARDONA, P.J., MERCURE, SPAIN, LAHTINEN and MALONE JR., JJ. Grey & Grey, L.L.P., Farmingdale (Joan S. O'Brien of counsel), for appellant. Davis & Venturini, Hicksville (Jean M. Venturini of counsel), for Sewanhaka Central School District and another, respondents.

Appeal from a decision of the Workers' Compensation Board, filed September 28, 2007, which ruled, among other things, that the presumption of a causally related death pursuant to Workers' Compensation Law § 21 had been rebutted.

Claimant's husband (hereinafter decedent) died while coaching a high school basketball game.   An autopsy was performed.   Decedent's death certificate listed as the cause of death a spontaneous rupture of the splenic artery with hemoperitoneum, due to portal hypertension complicating cirrhosis of the liver and chemotherapy for treatment of a primitive neuroectodermal tumor of the right adrenal gland.   Claimant thereafter filed a claim for workers' compensation death benefits.   Following a hearing, a Workers' Compensation Law Judge found that the Workers' Compensation Law § 21 presumption of compensability had been rebutted, and directed claimant to produce evidence of causally related death, with the employer having the opportunity to produce a consultant's report on the same issue.   The Workers' Compensation Board affirmed.   Claimant now appeals, and we affirm.

It is well settled that there is a presumption of compensability when an unwitnessed or unexplained death occurs during the course of one's employment (see Workers' Compensation Law § 21[1];  Matter of Marcus v. City of Troy, 39 A.D.3d 912, 913, 833 N.Y.S.2d 296 [2007];  Matter of Salley v. New York City Police Dept., 38 A.D.3d 1150, 1151, 833 N.Y.S.2d 686 [2007] ).   This presumption may be rebutted, however, by substantial evidence to the contrary (see Workers' Compensation Law § 21;  Matter of Pinto v. Southport Correctional Facility, 19 A.D.3d 948, 949, 798 N.Y.S.2d 750 [2005] ).   Moreover, rebuttal of the presumption “does not require irrefutable proof excluding all ․ conclusions other than that offered by the employer that the accidental injury was not work related” (id. at 950 n., 798 N.Y.S.2d 750).   Once the presumption is rebutted, a claimant then has the burden of establishing a causally related death (see Matter of Marcus v. City of Troy, 39 A.D.3d at 913, 833 N.Y.S.2d 296).   Inasmuch as evidence contained in the death certificate indicates that decedent's death was directly caused by factors not related to his work, we will not disturb the Board's finding that the presumption was overcome, requiring claimant to come forward with proof of a causally related death (see Matter of Johnson v. County of Clinton, 46 A.D.3d 1175, 1176, 847 N.Y.S.2d 775 [2007];  Matter of Schwartz v. Hebrew Academy of Five Towns, 39 A.D.3d 1134, 1135, 834 N.Y.S.2d 400 [2007], lv. denied 9 N.Y.3d 807, 843 N.Y.S.2d 537, 875 N.E.2d 30 [2007];  Matter of MacDonald v. Penske Logistics, 34 A.D.3d 967, 968, 823 N.Y.S.2d 613 [2006];  Matter of Brown v. Clifton Recycling, 1 A.D.3d 735, 736, 767 N.Y.S.2d 160 [2003] ).

ORDERED that the decision is affirmed, without costs.



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