| Matter of Petrocelli v Sewanhaka Cent. School Dist. |
| 2008 NY Slip Op 07058 [54 AD3d 1143] |
| September 25, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Denise Petrocelli, Appellant, vSewanhaka Central School District et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Davis & Venturini, Hicksville (Jean M. Venturini of counsel), for Sewanhaka Central SchoolDistrict and another, respondents.
Mercure, J. Appeal from a decision of the Workers' Compensation Board, filed September28, 2007, which ruled, among other things, that the presumption of a causally related deathpursuant to Workers' Compensation Law § 21 had been rebutted.
Claimant's husband (hereinafter decedent) died while coaching a high school basketballgame. An autopsy was performed. Decedent's death certificate listed as the cause of death aspontaneous rupture of the splenic artery with hemoperitoneum, due to portal hypertensioncomplicating cirrhosis of the liver and chemotherapy for treatment of a primitiveneuroectodermal tumor of the right adrenal gland. Claimant thereafter filed a claim for workers'compensation death benefits. Following a hearing, a Workers' Compensation Law Judge foundthat the Workers' Compensation Law § 21 presumption of compensability had beenrebutted, and directed claimant to produce evidence of causally related death, with the employerhaving the opportunity to produce a consultant's report on the same issue. The Workers'Compensation Board affirmed. Claimant now appeals, and we affirm.[*2]
It is well settled that there is a presumption ofcompensability when an unwitnessed or unexplained death occurs during the course of one'semployment (see Workers' Compensation Law § 21 [1]; Matter of Marcus v City of Troy, 39AD3d 912, 913 [2007]; Matter ofSalley v New York City Police Dept., 38 AD3d 1150, 1151 [2007]). This presumptionmay be rebutted, however, by substantial evidence to the contrary (see Workers'Compensation Law § 21; Matterof Pinto v Southport Correctional Facility, 19 AD3d 948, 949 [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 workrelated" (id. at 950 n). Once the presumption is rebutted, a claimant then has the burdenof establishing a causally related death (see Matter of Marcus v City of Troy, 39 AD3d at913). Inasmuch as evidence contained in the death certificate indicates that decedent's death wasdirectly caused by factors not related to his work, we will not disturb the Board's finding that thepresumption was overcome, requiring claimant to come forward with proof of a causally relateddeath (see Matter of Johnson v Countyof Clinton, 46 AD3d 1175, 1176 [2007]; Matter of Schwartz v Hebrew Academy of Five Towns, 39 AD3d1134, 1135 [2007], lv denied 9 NY3d 807 [2007]; Matter of MacDonald v PenskeLogistics, 34 AD3d 967, 968 [2006]; Matter of Brown v Clifton Recycling, 1 AD3d 735, 736 [2003]).
Cardona, P.J., Spain, Lahtinen and Malone Jr., JJ., concur. Ordered that the decision isaffirmed, without costs.