Matter of Kirisits v. Durez Plastics/occidental (2012)

Our plain-English summary of Matter of Kirisits v. Durez Plastics/occidental (New York Supreme Court, Appellate Division, June 14, 2012).

Kenneth Kirisits applied for workers' compensation disability benefits in 1994 after retiring. His claim was established as an occupational disease from asbestos exposure at work, with a 1993 disability date, based on a diagnosis of pleural asbestosis. He died in 2008, and his widow, Faith Kirisits, filed for death benefits, alleging he died of mesothelioma from long-term occupational asbestos exposure. The employer and its carrier tried to shift liability to the Special Fund for Reopened Cases under Workers' Compensation Law § 25-a, arguing more than seven years had passed since the original claim was established. The Workers' Compensation Board refused, finding the death claim was based on a new occupational disease separate from the earlier one. The Appellate Division, Third Department, affirmed. It explained that a death benefit claim is separate from the original disability claim, and the medical records showed no causal link between the pleural disease and the mesothelioma that would start the seven-year period. It also rejected the argument that the Board's decision was premature.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court, Appellate Division, 3rd Dept.
• Decided: June 14, 2012
• Citation: 96 A.D.3d 1225
• Stage: Appeal from workers' compensation or benefits
• State: New York

Outcome. The Appellate Division affirmed the Workers' Compensation Board's decision discharging the Special Fund for Reopened Cases from liability, so the employer and its carrier remained liable for the widow's death benefit claim.

What the court held. A claim for death benefits is separate from the decedent's original disability claim, so where the death claim rests on a new occupational disease (mesothelioma) with no shown causal link to the earlier established disease (pleural asbestosis), the seven-year period in Workers' Compensation Law § 25-a is not triggered and liability does not shift to the Special Fund.

Issues decided: Causation, Wrongful Death and Survival, Employer and Contractor Liability, and Workers' Compensation.

The people and their exposure

• Kenneth Kirisits: mesothelioma, asbestosis; died

The defendants

• Durez Plastics/Occidental (employer)
• Special Fund for Reopened Cases

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

96 A.D.3d 1225 (2012)

946 N.Y.S.2d 322

In the Matter of the Claim of FAITH KIRISITS, Respondent,

v.

DUREZ PLASTICS/OCCIDENTAL et al., Appellants, and SPECIAL FUND FOR REOPENED CASES,

Respondent.

Workers' Compensation Board, Respondent.

June 14, 2012.

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

Lahtinen, J.P., Spain, Malone Jr. and Kavanagh, JJ., concur.

McCarthy, J.

In 1994, Kenneth Kirisits (hereinafter decedent) applied for workers' compensation disability benefits following his retirement. A claim for occupational disease due to exposure to asbestos was established, with a disability date of 1993, based upon a diagnosis of pleural asbestosis resulting from his exposure to asbestos fibers during the course of his employment. No compensable lost time was found and reimbursement relief was set pursuant to Workers' Compensation Law § 15 (8) (ee). Decedent died in 2008 and claimant, decedent's widow, filed a claim for workers' compensation death benefits alleging that decedent died of mesothelioma due to long-term occupational exposure to asbestos. The employer and its workers' compensation carrier (hereinafter collectively referred to as the employer) sought to shift liability for that claim to the Special Fund for Reopened Cases pursuant to Workers' Compensation Law § 25-a, claiming that more than seven years had elapsed since the establishment of the underlying disability claim. Ultimately, the Workers' Compensation Board, reversing the decision of the Workers' Compensation Law Judge, discharged the Special Fund from liability upon a finding that Workers' Compensation Law § 25-a is inapplicable because the death benefit claim is based on a new occupational disease that is separate and distinct from the workers' compensation disability claim. The employer now appeals.

We affirm. "[I]t is generally accepted that a claim for death benefits ... 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 [*1226] Canisteo Volunteer Fire Dept., 85 NY2d 747, 751 [1995]). Here, the underlying disability claim established an occupational disease due to decedent's exposure to asbestos based upon medical evidence of decedent's asbestos-related pleural disease. The death benefit claim is a new occupational disease for mesothelioma diagnosed in 2008 allegedly caused by decedent's occupational asbestos exposure. There is nothing in the medical records herein to indicate a causal connection between the pleural disease and the diagnosis of mesothelioma in order to trigger the seven-year time period set forth in Workers' Compensation Law § 25-a so as to shift liability to the Special Fund. Accordingly, because the death benefit claim is premised on a new occupational disease, separate and distinct from the occupational disease established in the underlying disability claim, we find no reason to disturb the Board's decision releasing the Special Fund from liability (compare Matter of Fitzgerald v Berkshire Farm Ctr. & Servs. for Youth, 87 AD3d 353, 354-355 [2011]). Furthermore, under the circumstances herein, we are unpersuaded by the employer's contention that the Board's decision is premature. Ordered that the decision is affirmed, without costs.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites