Case # G0231818
Date of Accident: 03/19/2010
District Office: Hauppauge
Employer: Yellow Roadway Corporation
Carrier: Old Republic Insurance Co.
Carrier ID No.: W166003
Carrier Case No.:
Date of Filing of Decision: 05/04/2012
Claimant's Attorney: Denise Gold PC
Panel: Robert E. Beloten

* This decision also pertains to the following case(s): G0231765.

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 May 16, 2011.

ISSUE

The issue presented for Mandatory Full Board Review is whether WCB # G0231818 should be established for causally related death.

In a decision filed in WCB # G0231818 on July 26, 2010, the Workers' Compensation Law Judge (WCLJ) found that the carrier failed to file its C-7 within 25 days from the Board's notice of indexing; found that the employer is barred from pleading certain defenses, including that the injury did not arise out of or in the course of employment; and found that the case is not ripe for adjudication, but that the claimant may ask that case be reopened upon the submission of prima facie medical evidence of causally related death.

In a memorandum of decision filed May 16, 2011, the Board Panel majority affirmed the WCLJ's decision, finding that the claimant must present evidence to support her claim for death benefits.

The dissenting Board Panel member would have relied on the Workers' Compensation Law (WCL) § 21 presumption and found that the decedent's injuries and death are causally related to his employment.

In an application for Mandatory Full Board Review filed on June 10, 2011, the attorneys for the claimant argue that the Board Panel should have established WCB # G0231818 for causally related death. The claimant argues that since WCL § 25(2)(b) applies, "the carrier is precluded from raising the issue of causal relationship." The claimant also argues that the dissenting Board Panel member properly relied on WCL § 21 to find that this claim is compensable.

In a rebuttal filed with the Board on June 20, 2011, the attorneys for the employer and its third party administrator request that the Board Panel majority decision be affirmed because the WCL § 21 presumption does not apply.

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

FACTS

WCB # G0231765 was indexed as a result of a C-3 form filed on April 9, 2010, which was signed by the claimant (decedent's widow). The claimant reported that the decedent was involved in a motor vehicle accident on March 17, 2010, while he was working as a truck driver for the employer. The injuries are reported as "[m]ultiple injuries resulting in death head, chest, nose, lung."

WCB # G0231818 was indexed as a result of a C-62 form filed on April 9, 2010, in which the claimant reported that the decedent's death occurred on March 19, 2010. The decedent's death certificate was also submitted to the Board on April 9, 2010. The death certificate states that the cause of death is pending investigation.

The record contains a copy of St. Francis Hospital's "Discharge Summary" dated March 26, 2010, in which Dr. Zale noted that the decedent was brought to the emergency room on March 17, 2010, after being involved in a motor vehicle accident. He had decreased mental status, he was answering questions but his responses were inappropriate. Physical examination revealed that the decedent had an abrasion over the nasal bridge, he had minimal movement of the right lower extremity with no deformity, he verbalized pain but with limited answers, he was disoriented, and there was evidence of many premature ventricular contractions. In the emergency room, the decedent required intubation for airway control, and he had episodes of cardiac arrhythmias. A CAT scan of the head revealed no intracranial injury but did show cerebral arterial disease. A CAT scan of the chest revealed bilateral atelectasis and trace right pneumothorax. A CAT scan of the face showed a nasal fracture. A CAT scan of the head on March 18, 2010, showed a massive left cerebral artery infarct. The decedent expired on March 19, 2010.

The record contains a fax to "Dr. Cho" from the carrier's third party administrator with questions related to this claim for death benefits (ECF Doc ID #170308599, p. 19, in WCB # G0231818). In the fax, the third party administrator requests the doctor's opinion regarding the cause of death. There is a handwritten response stating that death was reported as "stroke, brain swelling [second degree], stroke with subsequent herniation." In the fax, the third party administrator also asked, "Do you feel that the cause of the motor vehicle accident was the result of the cause of death?" and the handwritten response is "no." The handwritten response includes a signature of Dr. Cho. However, there is nothing on this document to confirm who Dr. Cho is.

At the hearing held on July 20, 2010, the WCLJ first heard the parties' arguments regarding the death claim. Specifically, the carrier argued that there is insufficient evidence to find causal relationship, while the claimant's attorney argued that the WCL § 21 presumption applies and requested that the case proceed. The carrier relied on the report of Dr. Cho who opined that the cause of death was a stroke, and that the motor vehicle accident was not the result [sic - cause] of the death. The claimant's attorney argued that the carrier's communication with Dr. Cho was inappropriate contact, pursuant to WCL § 13-a(6). The WCLJ found that medical evidence was needed from the claimant to go forward, and also found that WCL § 25(2)(b) applies.

The WCLJ then considered the claim for an accident that occurred on March 17, 2010, and noted that the carrier is raising C-7 issues at this time. The carrier confirmed that its C-7 issues are raised with respect to the disability claim, and that it was raising all defenses, including causal relationship, accident arising out of and in the course of employment, and question of prima facie medical evidence. The carrier then went on to raise all defenses in the death claim. The claimant's attorney requested a finding of WCL § 25(2)(b) because no C-7 was ever filed. The carrier responded that the third party administrator for the carrier was never on notice, and therefore did not receive the notice of indexing. The WCLJ noted that the carrier has the responsibility to keep the Board up to date on its third party administrator, found sufficient notice to the carrier since it was named on the notice of indexing, and found that WCL § 25(2)(b) applies in both cases that are indexed. The WCLJ then noted that the accident was unwitnessed, and asked the claimant's attorney if there is prima facie medical evidence. The claimant's attorney again raised the WCL § 21 presumption that the decedent's death arose out of and in the course of his employment. The WCLJ noted that he had reviewed the "discharge summary" of the decedent's treatment prior to his death. However, the WCLJ found that Dr. Cho's opinion rebuts the presumption of compensability, and therefore found that the claimant must produce prima facie medical evidence for the death claim to go forward. The WCLJ concluded that both cases would be closed and marked "failure to prosecute" but that the case may be reopened with prima facie medical evidence of causally related death. The carrier objected to the finding of WCL § 25(2)(b), and the claimant objected to the WCLJ's failure to find that the WCL § 21 presumption applies and that Dr. Cho's report violates WCL § 13-a(6).

As noted above, in a decision filed in WCB # G0231818 on July 26, 2010, the WCLJ found that the carrier failed to file its C-7 within 25 days from the Board's notice of indexing; found that the employer is barred from pleading: no employer/employee relationship, no accident, and no injury arising out of or in the course of employment; found that C-7 issues were raised; found that the case is not ripe for adjudication; and found that the claimant may reopen with prima facie medical evidence.

In a decision filed in WCB # G0231765 on July 27, 2010, the WCLJ made the same findings that were made in WCB # G0231818.

Applications for administrative review were filed by the claimant and by the carrier.

On June 10, 2011, claimant's attorney filed an RFA-1LC (Request for Further Action by Legal Counsel), attached to which were additional records concerning decedent's hospitalization following his March 17, 2010, accident and a revised certificate of death. The revised death certificate lists cerebral infarct, and brain edema and herniations as the immediate causes of decedent's death. The certificate of death also lists occlusion of the left middle cerebral artery by calcified embolus and congenital bicuspid aortic valve as contributing causes of decedent's death.

LEGAL ANALYSIS

Initially, the additional evidence attached to claimant's attorney's RFA-1LC was not timely presented into evidence and was therefore not considered by the WCLJ or the Board Panel. Further, no showing has been made why it could not have been produced earlier. Therefore, the evidence will not be considered by the Full Board.

WCL § 25(2)(b) states that if "an employer or his insurance carrier" has been notified by the Board that a claim has been indexed against such employer, and the claim is controverted, a notice of controversy must be filed with the Board within 25 days from the mailing date of the notice of indexing.

WCL § 25(2)(b) states that, "[f]ailure to file the notice of controversy within the prescribed twenty-five day time limit shall bar the employer and its insurance carrier from pleading that the injured person was not at the time of the accident an employee of the employer, or that the employee did not sustain an accidental injury, or that the injury did not arise out of and in the course of the employment."

Here, the carrier failed to file a timely C-7, and therefore the WCLJ properly found that, pursuant to WCL § 25(2)(b), the carrier is barred from raising certain defenses, including that the injuries did not arise out of and in the course of the employment.

Absent a showing of good cause or other reason to excuse the untimely filing, the carrier shall be precluded from offering any evidence to dispute whether the injury was causally related to work. The Board must determine whether the alleged injury was work related without regard to the carrier's proof (Matter of Cappellino v Baumann & Sons Bus Company, 18 NY3d 890 [2012]).

In Matter of Koenig v State Ins. Fund, 4 AD3d 671 (2004), the Appellate Division reversed a Board Panel decision to deny a claim for death benefits where the Board found that the claimant was not entitled to invoke the WCL § 21 presumption, and found that there was insufficient evidence of causal relationship between the decedent's employment and his death. In Koenig, the decedent had suffered cardiac arrest at work and collapsed. The decedent died in the hospital one week later and the claimant's consulting physician "was unable to provide any opinion as to whether decedent's death was causally related to his employment" (Koenig, 4 AD3d at 671-672 [2004]). However, notwithstanding the fact that the record contained no evidence of causal relationship, the Appellate Division reversed the Board Panel's decision and explained that,

"Inasmuch as there is no dispute that decedent's initial injury occurred while he was working at his place of employment, he was entitled to the statutory presumption that the injury arose out of and in the course of such employment. [T]his presumption also applies to accidents that, although witnessed, are unexplained. Thus, the presumption applies and it was the [carrier's] burden, clearly not met here, to present substantial evidence to the contrary… In light of the undisputed account of decedent's collapse, and absent any conflicting medical or factual evidence for the Board to weigh, it was not proper to deny claimant benefits on the ground that she did not establish a prima facie case of causality" (Koenig, 4 AD3d at 672 [2004] [internal quotations and citations omitted]).

After the Appellate Division's reversal, a new decision was issued in which the Board Panel found that "the case should be established for causally related death [because] the record shows the deceased's death while witnessed, was unexplained. As such the claimant was entitled to the presumption. [The carrier] failed to rebut the presumption and therefore the claimant is entitled to the establishment of her case" Matter of Leah Koenig, 2004 NY Wrk Comp 09913846).

In Matter of Thompson v Genesee County Sheriff's Dept., 43 AD3d 1252 (2007), the Board had denied the claim for death benefits because the claimant had failed to come forward with evidence that the decedent's death was causally related to his work. The Appellate Division reversed the Board and noted that, upon review of the facts of this particular case, the Board had concluded that the cause of the decedent's death was "only speculative" (id. at 1254). The Appellate Division explained that "[i]n light of the social policy underlying the [WCL], as embodied in the presumption of compensability set forth in [WCL] § 21(1), such uncertainty should have been resolved in favor of the claimant and her children, not against them" (id.).

Here, although the claimant has presented insufficient evidence of causal relationship, the Full Board finds that Dr. Cho's report, which was relied on by the carrier, was of little probative value since the report does not provide sufficient documentation to identify Dr. Cho beyond that he had been listed on some of the medical reports. In addition, based on the carrier's failure to file a timely C-7, the Full Board cannot consider the report of Dr. Cho that was filed by the carrier.

While it is unclear from the record exactly when decedent's symptoms began, it can be reasonably inferred that those symptoms began while he was driving the employer's truck. Regardless of whether the symptoms began before or after the motor vehicle accident, the record supports a finding that those symptoms began while decedent was in the course of employment, and therefore the presumption provided by WCL § 21 that an injury which occurs in the course of decedent's employment also arises out of that employment, is applicable (see Matter of Browne v New York City Tr. Auth., 66 AD3d 1290 [2009]). Because the carrier failed to file a timely notice of controversy, it is precluded from offering any evidence to dispute whether the injury was causally related to decedent's work (Matter of Cappellino v Baumann & Sons Bus Company, 18 NY3d 890 [2012]).

Therefore, the Full Board finds that the decedent's death was causally related to his employment.

CONCLUSION

Accordingly, the WCLJ decision filed in WCB # G0231818 on July 26, 2010, is REVERSED, and the claim is established for causally related death. The case is returned to the hearing calendar for further consideration of remaining issues on the claim. The case is continued.