Smith v. Bell Aerospace (1987)

Our plain-English summary of Smith v. Bell Aerospace (New York Supreme Court, Appellate Division, February 26, 1987).

June Smith filed a workers' compensation death claim after her husband died on September 18, 1982. His death certificate listed primary mesothelioma of the pleura as the cause. Medical evidence in the record, including a treating physician's letter and the carrier's consultant's report and testimony, showed that after many years working with asbestos fibers he developed asbestosis, that it disabled him from July 1981, and that it precipitated the cancer. A Workers' Compensation Law Judge awarded benefits and held the Special Fund liable under the dust disease provision. The Board reversed as to the Fund, reasoning that he died of mesothelioma, which is not a dust disease under the statute. The employer and its carrier appealed. The Appellate Division reversed. It held that the Fund's liability depends on whether a dust disease contributed to or precipitated the death, not only on the immediate cause. Because the medical proof was undisputed and the blank spaces on the death certificate did not justify rejecting it, the Board's decision lacked a rational basis. The court sent the matter back to the Board for further proceedings.

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: February 26, 1987
• Citation: 125 A.D.2d 140
• Stage: Appeal from workers' compensation or benefits
• State: New York

Outcome. The Appellate Division reversed the Workers' Compensation Board's decision discharging the Special Funds Conservation Committee from liability on the death claim, and sent the matter back to the Board, with costs against the Special Fund.

What the court held. The Special Fund's liability under the dust disease provision does not depend only on the immediate cause of death; it turns on whether a dust disease such as asbestosis contributed to or precipitated the death. A Board decision that looks only at the direct cause of death, despite undisputed proof that asbestosis precipitated the cancer, is irrational.

Issues decided: Causation, Wrongful Death and Survival.

The people and their exposure

• decedent (husband of claimant June Smith): pleural mesothelioma, asbestosis; died

The defendants

• Bell Aerospace (employer)
• Special Funds Conservation Committee (government)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Matter of Smith v. Certain Teed Prods. Corp. (New York Supreme Court, Appellate Division, 3rd Dept., 1981). The Appellate Division affirmed the Workers' Compensation Board's decision disallowing the widow's disability and death claims against Certain Teed Products Corp. as barred by section 40, so the claimant lost.

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.

125 A.D.2d 140 (1987)

In the Matter of the Claim of June Smith, Respondent,

v.

Bell Aerospace et al., Appellants, and Special Funds Conservation Committee et al., Respondents

February 26, 1987

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

Phillips, Lytle, Hitchcock, Blaine & Huber (Ronald E. Weiss of counsel), for appellants.

Patrick Harnedy (Morris N. Lissauer of counsel), for Special Funds Conservation Committee, respondent. MAHONEY, P. J., KANE, MAIN and LEVINE, JJ., concur.

*141CASEY, J.

141

The employer and its insurance carrier contend that the Workers' Compensation Board erred in discharging the Special Funds Conservation Committee (hereinafter Special Fund) from liability on the death claim filed by claimant. We agree. Special Fund's liability, if any, in this case is predicated upon the "dust disease" provisions of Workers' Compensation Law § 15 (8) (ee). All parties concede that the immediate or direct cause of decedent's death was, as listed on the death certificate, primary mesothelioma of the pleura (cancer of the lining of the lung), which is not a "dust disease" within the meaning of the statute (see, Matter of Smith v Certain Teed Prods. Corp., 85 AD2d 820). The record, however, contains undisputed evidence, in the form of a letter from one of decedent's treating physicians and a report and testimony from the carrier's consultant who examined decedent several months before his death, which establishes that after working with asbestos fibers for many years decedent developed asbestosis, a dust disease, and that the asbestosis resulted in decedent's disability and precipitated the development of the cancer. The Workers' Compensation Law Judge concluded that decedent was disabled by an occupational disease — asbestosis — from July 2, 1981 to the date of his death on September 18, 1982, and that his death was causally related to the [*142] occupational disease. Disability and death benefits were awarded and Special Fund's liability under Workers' Compensation Law § 15 (8) (ee) on the death claim was established. Special Fund appealed and, after reciting the undisputed medical proof, the Board concluded that "inasmuch as the [decedent] died as a result of mesothelioma * * * that the Special Funds Conservation Committee * * * is not liable and is accordingly discharged".

The decision is patently erroneous, for Special Fund's liability in this case is not dependent solely upon the immediate or direct cause of death. Rather, the issue is whether a dust disease, in this case asbestosis, was a contributory factor in decedent's demise (see, Matter of Collins v Aluminum Co., 56 AD2d 965, 966, affd 44 N.Y.2d 692). Thus, Special Fund will be discharged if the dust disease is neither a direct cause of decedent's death nor a precipitant thereof (Matter of Viskovich v Keasbey Co., 36 AD2d 665, lv denied 29 N.Y.2d 483). Where, as here, there is medical proof that a dust disease was a precipitant of the direct cause of death, a Board decision to discharge Special Fund which focuses solely upon the direct cause of death is irrational and must be reversed.

Special Fund argues that since the Board's decision mentions only the direct cause of death, it should be construed as including a finding that there were no contributory or precipitating factors. We reject the argument for several reasons. The Board's decision requires a certain amount of reconstruction just to make it understandable, and further reconstruction to expand its reasoning and make it rational as well is not a proper function of this court. Next, the argument advanced by Special Fund effectively invokes a ground for the Board's decision not actually invoked by the Board and, therefore, we cannot consider it (see, Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 N.Y.2d 588, 593).

Lastly, even if the Board's decision could be considered as having found no contributory or precipitating factor in this case, we would nevertheless reverse. The Board's authority in assessing the credibility of witnesses includes the power to selectively adopt or reject portions of a medical expert's opinion (see, e.g., Matter of Rodriguez v Atlantic Gummed Paper Corp., 61 AD2d 873, 874), but as with any administrative determination, the Board's decision in this regard must be supported by substantial evidence (see, Matter of Di Maria v Ross, 52 N.Y.2d 771, 772). In the usual case, substantial

evidence is found in conflicting expert opinions (see, e.g., Matter of Rodriguez v Atlantic Gummed Paper Corp., supra), *143although inconsistencies within an expert's opinion have been held to justify the Board's decision not to adopt the opinion in toto and to "`rationalize and reason upon the record as a whole and take a realistic view in making its determination'" (Matter of Manzer v Atlantic Richfield Co., 46 AD2d 963, 964, quoting Matter of Zaepfel v du Pont de Nemours & Co., 284 App Div 693, 696, affd 309 N.Y. 962). Special Fund argues that conflicting medical opinions exist in this case because the certificate of death contains no information in the spaces provided for causes other than the immediate cause (see, Matter of Zivitz v J & S Meat Corp., 114 AD2d 709, affd 67 N.Y.2d 868). It can hardly be said that the Board found these blank spaces significant, since its decision contains no mention of them. Nor can they be said to be so significant in this case as to justify the rejection of the undisputed medical proof that asbestosis was a precipitating cause of the cancer. Decedent died some 14 months after he had been diagnosed as having the cancer. His death within the foreseeable future was an anticipated consequence of the diagnosis. No autopsy was performed, and there is nothing in the record to suggest that the certifying physician had available to him the information necessary to determine whether a contributing or precipitating factor existed; nor does it appear that he had any reason to inquire as to whether such a factor existed.

143

Since the Board's decision is erroneous and lacks a rational basis in the record, it must be reversed. Decision reversed, with costs against the Special Funds Conservation Committee, and matter remitted to the Workers' Compensation Board for further proceedings not inconsistent herewith.

Sources

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