Appeal from an amended decision of the Workers' Compensation Board, filed January 24, 2013, which ruled, among other things, that the employer and its third-party administrator were not entitled to reimbursement from the Special Disability Fund.
In 1997, claimant's husband (hereinafter decedent) established a claim for workers' compensation benefits for asbestos related pleural disease and chronic irritative bronchitis, resulting from prolonged asbestos exposure at work. Following his death from lung cancer in 2005, claimant applied for death benefits. The employer and its third-party administrator (hereinafter collectively referred to as the employer) opposed and, in the alternative, sought reimbursement for the death benefits from the Special Disability Fund pursuant to Workers' Compensation Law § 15 (8). The Workers' Compensation Board ultimately awarded claimant death benefits and determined, among other things, that reimbursement from the Fund was inappropriate. The employer now appeals.
Initially, the employer has not demonstrated that, but for a preexisting permanent impairment, decedent's death would not have occurred (see Matter of Shepler v City of Tonawanda, 67 A.D.3d 1313, 1313-1314 ). Accordingly, the Board properly denied reimbursement from the Fund pursuant to Workers' Compensation Law § 15 (8) (e) (see Matter of Smith v Pfaudler Co., Div. of Sybron Corp., 58 A.D.2d 902, 902-903 ).
The employer also argues that the Board erred in denying
Ordered that the amended decision is modified, without costs, by reversing so much thereof as denied reimbursement from the Special Disability Fund pursuant to Workers' Compensation Law § 15 (8) (ee); matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.