Case # G0132408
Date of Accident: 06/15/2009
District Office: Buffalo
Employer: API Inc
Carrier: ACE American Insurance Co.
Carrier ID No.: W019004
Carrier Case No.: 003647-000247
Date of Filing of Decision: 06/22/2012
Claimant's Attorney: Lipsitz, Gree, Scime, Cambria LLP
Panel: Robert E. Beloten

The Full Board, at its meeting held on April 17, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on July 1, 2011.

ISSUE

The issue presented for Mandatory Full Board Review is whether the decedent's death was causally related to his work.

In a reserved decision filed on January 20, 2010, the Workers' Compensation Law Judge (WCLJ) established the claim for a work-related death.

In a Memorandum of Decision filed July 1, 2011, the Board Panel majority affirmed the WCLJ's decision, finding that "given the uncertainty of what may or may not have triggered that thrombosis at that time, the claimant is entitled to the presumptions of WCL § 21."

The dissenting Board Panel member would have reversed the WCLJ and disallowed the claim, finding that "the presumptions of WCL § 21 have been rebutted by the credible medical report and testimony of Dr. Friedman."

In its application for Full Board Review filed on August 1, 2011, the attorneys for the carrier argue that the Board Panel should have found that the presumption created by WCL § 21(1) has successfully been rebutted by the evidence presented by the carrier.

In a rebuttal filed with the Board on August 29, 2011, the attorneys for the claimant request that the Board Panel majority decision be affirmed.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This claim was assembled as a result of a report (form C-62) filed on July 31, 2009, in which the claimant, the decedent's father, reported the decedent's death on June 15, 2009.

The following facts are not disputed by the parties: The decedent, a 47-year-old metal fabricator, was at work for the employer on June 15, 2009, when he complained to a co-worker that he was experiencing chest pain and was having trouble breathing. The decedent's co-worker told the decedent to lie down and requested help from another employee. The decedent had stopped breathing by the time medical help arrived, and he was taken to the emergency room, at which time he was in cardiac and respiratory arrest. According to the hospital records, the decedent's co-workers reported that the decedent had been complaining of progressive shortness of breath for the previous week and "today became very short of breath, sat down and collapsed, becoming unresponsive." The decedent was pronounced dead shortly after arriving at the hospital.

On July 31, 2009, the claimant filed the decedent's Death Certificate which indicated that the immediate cause of death was acute right coronary artery thrombosis, due to or as a result of atherosclerotic cardiovascular disease.

The claimant also filed an autopsy report signed by Dr. Malone, a forensic pathologist, who agreed with the cause of death listed on the death certificate and opined that the decedent had severe calcific coronary atherosclerosis of four vessels: 50% occlusion of the left main and diagonal coronary arteries, 50-75% occlusion of the left circumflex coronary artery, and 50-95% occlusion of the left anterior descending coronary artery.

Dr. Friedman, the carrier's consulting physician, filed an IME-4 report of a records review, and opined that the decedent's death was not causally related to any work activity. Dr. Friedman noted that upon review of the medical file, he was able to diagnose the decedent with advanced triple vessel coronary artery disease, and recent thrombus in the right coronary artery which was the critical artery that resulted in his cardiac demise. Dr. Friedman found no evidence of infarction. Dr. Friedman opined that the decedent's death was due to advanced obstructive coronary artery disease resulting in acute arrhythmia with new additional thrombosis of a previously recanalized right coronary artery.

The record was developed with the testimony of the claimant, two of the decedent's co-workers, Dr. Malone, and Dr. Friedman.

The claimant, decedent's father, testified at the hearing held on November 5, 2009, that the decedent had not been previously diagnosed with a cardiac condition and had never treated with a cardiologist. The claimant did acknowledge that there is a family history of heart problems, and that the claimant had surgery for a blood clot on the right side of his heart about 15 to 18 years ago.

Two of the decedent's co-workers also testified at the November 5, 2009, hearing. The first witness was employed in safety coordination and field management by the employer. He stated that the decedent had been employed as a journeyman sheet metal worker, fabricating flashing for a building, installing it from a lift. The flashing he carried would not weigh more than ten pounds or be longer than three feet, and the sheet it was cut from was four by ten. The decedent would have to walk about 20 or 30 feet to the lift from the area where he fabricated the pieces.

The second co-worker witness testified that he also was a sheet worker on the job site, and was familiar with the work done by the decedent. He was cutting and fabricating sheet metal, then installing it. The four by ten feet sheets of material weighed between 30 and 40 pounds, and a worker would have to lift it to the bench for cutting. The decedent had told him that he had not felt well on Friday, or over the weekend; he had been having trouble breathing and thought it was the flu. The witness was waiting to use the machinery the decedent was using. The machinery had a manual brake that required some force to move; the witness stated that it was "pretty heavy" and that he could push it with one hand, but sometimes used both. The decedent was operating the manual brake when he suddenly winced, held his chest, and leaned back against the waist-high work bench. The witness said he should lie down, and he helped the decedent lie down on top of sheet metal stacked on a work bench. The decedent was conscious for a few minutes, struggling to catch his breath. The witness did not want to leave him, in case he fell and injured himself among all the metal in the work shop.

Dr. Malone testified by telephone deposition on November 24, 2009, that she is the Associate Chief Medical Examiner for Erie County, and on June 15, 2009, she performed an autopsy on the decedent. The autopsy showed that the decedent had occlusions, or plaques, built up in his arteries, to the point where blood was flowing through a hole comparable in size to one that would be left by a safety pin. A clot formed and blocked the pinprick sized opening, which blocked the supply of blood to the heart and caused instant death. Plaque formation occludes the arteries of the heart, and when the plaque ruptures for some reason, blood flowing over it tries to repair it, trying to heal what appears to be an injury. In doing so, platelets can begin clotting, and the clot that is formed may be enough to finish closing off the blood supply entirely. The clot, or thrombosis, would have broken off within minutes prior to death. The severity of the pre-existing atherosclerosis also puts additional strain on the heart. Any increased activity that would cause the heart rate to increase, causes further stress to his ability to get enough oxygen and get blood to the heart. Decedent's work activities prior to his heart attack, as testified to by his co-workers, were described to Dr. Malone. When asked whether decedent's work activities could have contributed to or accelerated decedent's heart attack, Dr. Malone responded, "Yes. In my opinion those activities would have contributed" (deposition transcript, 11/24/09, p. 23). However, Dr. Malone did concede that decedent's death could have occurred even if the decedent was lying in bed, doing nothing.

Dr. Friedman testified by telephone deposition on November 24, 2009, that the autopsy report indicated that the cause of death was a thrombus in the right artery. The cause of death "speaks for itself and tells you why he died. I don't have to go any further than that. And in my opinion, no matter what kind of work he did, it didn't make any difference. Work doesn't cause coronary artery disease. It doesn't cause a thrombosis" (deposition transcript, 11/24/09, p. 6). The autopsy also showed that there was no infarction and that the chambers of the heart were normal. Dr. Friedman noted that the decedent never had any evaluation for possible hypertension or hypercholesterolemia. Dr. Friedman explained that there was no evidence that any work activity causes plaque to rupture or formation of a thrombosis. Later in his testimony, Dr. Friedman stated, "I didn't know he had chest pain." He further noted that there was very little medical evidence to review in this case.

Although some records of the decedent's prior medical treatment are in the file (ECF Doc ID #158741958), the record contains no evidence that the decedent had ever been previously diagnosed with or treated for a cardiac condition.

At the hearing held on December 21, 2009, the parties provided summations, and in a reserved decision filed on January 20, 2010, the WCLJ established the claim for causally related death, and found no dependency. In his decision, the WCLJ specifically noted that "[b]oth the Impartial Medical Examiner for the Carrier and County Medical Examiner who performed the autopsy opined the clot was loosened due to increased activity [and] there was no dispute that the work exertion caused the thrombosis to break off and lodge near the decedent's heart." The WCLJ directed the carrier to pay a $50,000 death benefit to the decedent's estate, less a $7,500 fee to claimant's attorney; directed the carrier to reimburse the amount of $5,000 to Carolyn Waterman, decedent's sister, for funeral expenses; and directed the carrier to pay an assessment of $3,000 to the UEF, as required by WCL § 26-a, and an assessment of $2,000 to the VRF, as required by WCL § 15(9).

LEGAL ANALYSIS

Workers' Compensation Law (WCL) § 21(1) states that "it shall be presumed in the absence of substantial evidence to the contrary [t]hat the claim comes within the provision of this chapter."

"[The] presumption [of compensability] may be rebutted by the employer with substantial evidence to the contrary (see Matter of Boni-Phillips v Oliver, 56 AD3d 1073 [2008]). Moreover, rebuttal of the presumption does not require that the employer submit irrefutable proof excluding every other explanation as to potential causes of death (see Matter of Hanna v Able Body Labor, 62 AD3d 1200 [2009]). If the employer does rebut the presumption, the burden of proving that a death is causally related to the employment shifts back to claimant (see Matter of Petrocelli v Sewanhaka Cent. School Dist., 54 AD3d 1143 [2008])" (Matter of Puig v New York Armenian Home, Inc., 65 AD3d 1444 [2009]).

While causal relationship for a death cannot be based upon opinion evidence that is pure speculation (Matter of Van Patten v Quandt's Wholesale Distribs., 198 AD2d 539 [1993]), there is no requirement that medical opinions be expressed with absolute medical certainty (see Matter of Dongarra v Village of Ossining, 250 AD2d 1007 [1998], lv dismissed 92 NY2d 919, lv denied 93 NY2d 816 [1999]).

Here, the WCLJ established the claim, and specifically noted that there was no dispute that the clot that caused the decedent's death "was loosened due to increased [work] activity." However, as noted herein, an accurate summary of the medical evidence reflects that while Dr. Malone testified that the decedent's work activities would have contributed to his death, Dr. Friedman disagreed and testified that there is no evidence that any work activity causes plaque to rupture or formation of a thrombosis. Therefore, although the medical testimony is undisputed that the cause of the decedent's death was a thrombus in his right artery, the Full Board notes that Dr. Friedman did not agree with Dr. Malone's opinion that the decedent's work activity may have been a contributing factor in his death.

It is well settled that questions of credibility, reasonableness, and weight of medical evidence are for the Workers' Compensation Board to decide, and it is within the province of the Board to resolve conflicts in the medical testimony as well as to determine the reasonableness of, weight, and credibility to be given to that testimony (Matter of Forrest v Grossman's Lumber, 175 AD2d 498 [1991]). Thus, it is within the Board's province to assess the weight to be given conflicting medical testimony and to determine which evidence to credit in making its decision (Matter of Gonzalez v Ozalid Corporation, 235 AD2d 859 [1997]).

The Full Board finds that Dr. Malone's opinion was more credible than that of Dr. Friedman. Dr. Malone found that the thrombosis would have broken off within minutes prior to the decedent's death. Dr. Friedman did not disagree with the timing of these events, and it is undisputed that the decedent was in the course of his employment when he became fatally ill. Finally, although both Dr. Malone and Dr. Friedman agree that the autopsy shows that the decedent had advanced cardiovascular disease, there is no evidence in the record that he had been receiving treatment for or had been diagnosed with the condition prior to his death (cf. Boni-Phillips, 56 AD3d 1073 [2008]) (death claim disallowed where there was medical evidence of the decedent's prior treatment for high blood pressure, high cholesterol and coronary artery disease, and the claimant submitted no evidence of causal relationship to support the death claim).

Therefore, based on the evidence of causal relationship submitted by the claimant, the Full Board finds that the decedent's death was causally related to his work.

CONCLUSION

Accordingly, the WCLJ reserved decision filed January 20, 2010, is MODIFIED to clarify that the record contained conflicting medical evidence regarding whether the decedent's work activity caused his death, and is otherwise affirmed. No further action is planned by the Board at this time.