Court “gently urges” the legislature to look at workers’ comp death claims

The Court of Appeals, the highest court in New York, has upheld a rule that workers’ compensation death claims cannot be apportioned.

Writing for, attorney Theodore Ronca says the new twist in the high court’s ruling is acknowledging the rationality of apportionment but is also saying that the state legislature should change the law.

The case itself involved an old asbestosis claim. Ronka writes, “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.

“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 Business Council supports statutory amendments that would allow apportionment of death benefits in cases where a non-compensable disability/injury is the basis of apportionment to guarantee more equitable outcomes for employers in such cases.

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