I agree with my colleagues that the Workers’ Compensation Law statute, by its plain terms, does not provide for an apportionment of death benefits between work-related and non-worked-related causes. And while I also agree that Con Ed’s challenge to the finding of causation was not preserved for our review (see majority op at 643 n 6), had that issue been preserved, I would find that the statute also does not permit an apportionment to support the claim that the death was causally related to the work-related injury. Thus, in my view, the claimant is not entitled to death benefits.
Workers’ Compensation Law § 16 provides for an award of compensation for death benefits if the work-related injury *648“causes death” (emphasis added). The term “death” is defined by statute as follows: “ ‘Death’ when mentioned as a basis for the right to compensation means only death resulting from such injury” (Workers’ Compensation Law § 2 [8] [emphasis added]). Appellate courts have concluded that this means the decedent’s work-related injury “need not be the sole or even the most direct cause of death, provided that the claimant demonstrates that the compensable illness [or injury] was a contributing factor in the decedent’s demise” (Matter of Imbriani v Berkar Knitting Mills, 277 AD2d 727, 730 [3d Dept 2000] [emphasis added]; see also Matter of Brown v Clifton Recycling, 1 AD3d 735 [3d Dept 2003]). This Court has yet to consider whether the appellate courts’ interpretation of the statute is correct and if so, how far it should be taken, i.e. whether a work-related injury that is only a minor “contributing factor” to the decedent’s death is compensable.
A review of the case law, including this one, puts that question into serious doubt. Under a broad reading of the appellate courts’ precedent, any tangential work-related injury or disease that contributes in any way to the death may result in a death benefit. This leads to two problems. First, it lends itself to arbitrary determinations as to whether a particular death has a “causally related” antecedent. Second, there is no statutory basis for allowing “apportionment” in Workers’ Compensation Law § 16 with respect to the cause of death, and at the same time denying apportionment when fashioning an award.
Here, there is no dispute that the direct and primary cause of the decedent’s death was thyroid cancer, a condition totally “unrelated to his work at Con Ed” (majority op at 640). The work-related injury may have hastened the decedent’s death, but that’s all. The statute doesn’t provide for an award in such a case. No apportionment should mean just that—as to both the cause and, as the Workers’ Compensation Board argues here, the award of benefits. The legislature didn’t write the statute that way; why should the courts rewrite it?
Judges Graffeo, Smith, Pigott, Rivera and Abdus-Salaam concur with Judge Read; Judge Pigott in a separate concurring opinion in which Judge Smith concurs; Chief Judge Lippman taking no part.
Order affirmed, with costs.