                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 30, 2016                     519936
________________________________

In the Matter of the Claim of
   URSULA MELLIES,
                    Respondent,
      v

CONSOLIDATED EDISON CO. of
   N.Y., INC. et al.,                       MEMORANDUM AND ORDER
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   June 1, 2016

Before:   Peters, P.J., Garry, Rose, Mulvey and Aarons, JJ.

                             __________


      Cherry, Edson & Kelly, LLP, Carle Place (David W. Faber of
counsel), for appellants.

      Eric T. Schneiderman, Attorney General, New York City
(Steven Segall of counsel), for Workers' Compensation Board,
respondent.

                             __________


Mulvey, J.

      Appeal from a decision of the Workers' Compensation Board,
filed January 8, 2014, which ruled that decedent's death was
causally related to his employment and awarded workers'
compensation death benefits.

      Wolfgang Mellies (hereinafter decedent) established a work-
related injury for asbestosis in 1996, was classified permanently
partially disabled and was awarded workers' compensation
                              -2-                519936

benefits. In 2010, decedent, who suffered from numerous medical
maladies, including type 2 diabetes, coronary artery disease and
end-stage renal failure, underwent surgery for a condition
unrelated to the asbestosis. While still in the hospital,
decedent suffered congestive heart failure, required an
additional surgery for an infected gallbladder, developed
pneumonia and died. The death certificate indicated respiratory
failure as the cause of death. Claimant, decedent's widow, filed
for workers' compensation death benefits. The Workers'
Compensation Law Judge credited the medical opinion of claimant's
expert regarding causation between decedent's death and his
asbestosis occupational disease. The Workers' Compensation Board
affirmed. The employer and its workers' compensation carrier
(hereinafter collectively referred to as the employer) now
appeal.

      The employer contends that the Board improperly based its
finding of causal relationship upon the testimony of claimant's
medical expert, Lester Ploss, as it was speculative and not
supported by a rational basis. We disagree. It is well settled
that "[t]he Board is vested with the discretion to assess the
credibility of medical [proof] and its resolution of such issues
is to be accorded great deference, particularly with respect to
issues of causation" (Matter of Manka v Goodyear Tire & Rubber
Co., 123 AD3d 1172, 1173 [2014] [internal quotation marks and
citation omitted], lv denied 25 NY3d 909 [2015]; see Matter of
Krietsch v Northport-East Northport UFSD, 116 AD3d 1255, 1257
[2014]; Matter of Roberts v Waldbaum's, 98 AD3d 1211, 1211
[2012]). Here, Ploss, an internist specializing in pulmonary
disease, reviewed decedent's records and testified that
decedent's death was directly due to his numerous medical
maladies but that his asbestosis occupational disease was
nevertheless a contributing factor. Specifically, Ploss noted
that X rays taken at the hospital showed decedent's reduced lung
volume and a collapsed lower left lobe, which Ploss testified was
as a result of the asbestosis. Although there was no evidence
that decedent received medical treatment for the asbestosis after
1996, Ploss testified that asbestosis is a progressive disease
that causes significant restrictive lung disease. This, along
with decedent's calcified pleura resulting from the asbestosis,
restricted the expansion of his lungs. Ploss opined that this
                              -3-                  519936

significant respiratory insufficiency was caused by the
asbestosis and restricted the expansion of decedent's lungs,
thereby contributing to decedent's respiratory failure and death.
Notwithstanding medical testimony to the contrary, Ploss' medical
opinion was supported by a rational basis and, therefore, the
Board's decision will not be disturbed (see Matter of Krietsch v
Northport-East Northport UFSD, 116 AD3d at 1257; Matter of Owoc v
Syracuse Univ., 301 AD2d 765, 766 [2003], lv denied 100 NY2d 501
[2003]).

      Finally, we find no compelling reason to overrule our
precedent that "the work-related illness need not be the sole or
even the most direct cause of death, provided that the claimant
demonstrates that the compensable illness was a contributing
factor in the decedent's demise" (Matter of Imbriani v Berkar
Knitting Mills, 277 AD2d 727, 730 [2000]; see Matter of Smith v
Oneida Ltd., 119 AD3d 1021, 1021 [2014]; Matter of Pacatte v SUNY
Cobleskill, 87 AD3d 1262, 1262 [2011]; Matter of Droogan v
Raymark Indus., Inc., 59 AD3d 803, 804 [2009]).

     Peters, P.J., Garry, Rose and Aarons, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
