                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 30, 2016                     521733
________________________________

In the Matter of the Claim of
   BRENDA MANGAN,
                    Appellant,
      v

TRY-IT DISTRIBUTING CO., INC.,
                    Respondent,
      and                                   MEMORANDUM AND ORDER

SPECIAL FUND FOR REOPENED
   CASES,
                    Respondent.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   May 25, 2016

Before:   Peters, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.

                             __________


      Viola, Cummings & Lindsay LLP, Niagara Falls (Matthew T.
Mosher of counsel), for appellant.

      Steven Licht, Special Funds Conservation Committee, Albany
(Jill B. Singer of counsel), for Special Fund For Reopened Cases,
respondent.

                             __________


Devine, J.

      Appeal from a decision of the Workers' Compensation Board,
filed January 2, 2015, which ruled, among other things, that
claimant is entitled to receive death benefits based upon
decedent's average weekly wages at the time of his accident.
                              -2-                521733

      In 2000, Tracy Mangan (hereinafter decedent) sustained a
work-related back injury while employed by Try-It Distributing
Co., Inc. (hereinafter the employer). In 2009, decedent was
classified as having a permanent partial disability, and
liability for the claim was transferred to the Special Fund for
Reopened Cases (see Workers' Compensation Law § 25-a).
Decedent's average weekly wage was thereafter established to be
$813.49 based upon payroll records for the year preceding his
injury. Decedent died in July 2012 of complications arising in
the wake of causally-related back surgery and, in 2013, claimant,
decedent's widow, filed this claim for death benefits. Following
a hearing, a Workers' Compensation Law Judge determined that
decedent's death was compensable and calculated the amount of
death benefits on the basis of decedent's average weekly wage at
the time of his death. Upon review, the Workers' Compensation
Board modified the award of death benefits, holding that the
amount of benefits should be calculated on the basis of
decedent's average weekly wage at the time of the compensable
injury. Claimant now appeals.

      As we have previously held, the calculation of death
benefits is based upon the average weekly wage on the date of
accident or the date of disablement (see Workers' Compensation
Law § 14; Matter of House v International Talc Co., 261 AD2d 687,
689 [1999]). The award is then made subject to "the increased
[minimum and] maximum death benefit rate[s] set forth as part of
the comprehensive revisions to the Workers' Compensation Law in
2007," which applies to the 2012 death at issue here (Matter of
Angelo v Occidental Chem., 95 AD3d 1554, 1555 [2012]; see
Workers' Compensation Law § 16 [5] [4]). Thus, the Board
correctly determined that the calculation of death benefits was
based upon decedent's average weekly wage at the time of his 2000
accident, not the average weekly wage at the time of his 2012
death (see Matter of House v International Talc Co., 261 AD2d at
689). In light of our determination, we need not address the
parties' remaining contentions.

     Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ., concur.
                        -3-                  521733

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
