The Full Board, at its meeting held on December 18, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed April 2, 2012.
The issue presented for Mandatory Full Board Review is whether the claimant's injury is causally related to her employment.
The Workers' Compensation Law Judge (WCLJ) established the claim, finding that the claimant's pulmonary embolism was causally related to her employment as a bus driver. The Board Panel majority reversed the WCLJ's decision, finding that the claimant's injury was not work related.
The dissenting Board Panel found that the claimant's injury was causally related to her employment.
On April 10, 2012, the claimant filed a request for Mandatory Full Board Review.
The carrier filed a rebuttal on May 10, 2012.
Upon review, the Full Board votes to adopt the following findings and conclusions.
In a C-3 (Employee Claim) form filed with the Board on November 12, 2010, the claimant reported suffering a pulmonary embolism and pneumonia on August 20, 2010, while driving her vehicle to her home. In a supplemental affidavit filed on March 30, 2012, the claimant indicated that she was off duty at the time of her injury, but that her pulmonary embolism was caused by sitting for long periods in her work as a bus driver.
The carrier filed a C-7 (Notice that Right to Compensation is Controverted) form on December 22, 2010, in which it raised the issues of causal relationship and accident arising out of and in the course of employment.
At a hearing held on March 16, 2011, the claimant testified that she has worked approximately 32 hours per week for the employer, a senior living home, since 2003. Although she holds the position of bus driver, the claimant explained that she performs a variety of duties. The claimant testified that she was responsible for driving the residents to the grocery store, department stores, doctor appointments, bank, and post office throughout the week. Depending on the destination, she would drive between 30 and 60 minutes during each trip.
The claimant testified that on August 18, 2010, she drove a bus one and three-quarter hours to Alexandria Bay. She explained that she and the residents were on a boat for three hours while at the Bay, and then she drove the bus one and three-quarter hours back to the home. The claimant stated that she did not stop the bus during the trip to or from the Bay. The claimant remained seated on the crowded boat for most of the three hour ride, but that she was responsible for accompanying residents to the restroom and purchasing their snacks. She stated that she was seated for approximately six hours throughout the duration of the trip. The claimant testified that she began to feel tightness in her chest on August 18, 2010, but believed that she had pulled a muscle. The claimant visited Upstate Hospital on August 20, 2010, where she was diagnosed with a pulmonary embolism. She returned to work on November 10, 2010.
The claimant further testified that she had previously worked as a school bus driver for approximately five years. She had also worked as a bus driver for Greyhound and traveled approximately 3,500 miles per week. The claimant explained that her work for the current employer was primarily local driving. The claimant stated that Dr. Frechette advised her that swelling of the legs was a precursor to pulmonary emboli. She had been experiencing swelling of the legs for "the last year and a half," but the symptoms had never interfered with her job duties.
The claimant's supervisor also testified at the March 16, 2011, hearing. She explained that the claimant works approximately 32 hours per week driving residents to local appointments and outings. The supervisor testified that the annual trip to Alexandria Bay was the longest distance that the claimant was required to drive. The supervisor stated that the claimant was free to walk around on the boat during the ride in the Bay.
Dr. Frechette was deposed on March 31, 2011, and testified that he treated the claimant on August 20, 2010. The claimant advised the doctor that she had suffered chest pain and shortness of breath for two days following a long car ride, the duration of which Dr. Frechette was unaware. A CT scan revealed that the claimant had a pulmonary embolism. Dr. Frechette explained that long car rides are often precipitating events of such blood clots. When asked the cause of the claimant's pulmonary embolism, Dr. Frechette stated that he didn't "really have an opinion," as the condition may often occur unprovoked. Dr. Frechette opined that the claimant's sudden onset of symptoms "was the moment when she had her pulmonary embolism."
On cross-examination, Dr. Frechette testified that it was fairly common for a pulmonary embolism to be mistakenly diagnosed as pneumonia. Dr. Frechette stated that smoking, obesity, and chronic obstructive pulmonary diseases (COPD) increase one's risk of experiencing a pulmonary emboli, but that thyroid hormone abnormalities do not. The doctor believed that the claimant was a smoker. Dr. Frechette stated that it was not possible to indicate the time at which a "long car ride" would become a causal factor in the development of pulmonary emboli. He opined that "any period of prolonged sitting or any period of immobility" would increase the risk of such an injury.
Dr. Aziz, the claimant's primary care physician, was deposed on April 15, 2011. Dr. Aziz testified that she did not have an opinion as to how the claimant developed her pulmonary embolism. Dr. Aziz confirmed that the claimant was diagnosed with COPD, and stated that she had only treated the claimant on a few occasions.
Dr. Evans, the carrier's pulmonary physician, was deposed on April 25, 2011. Dr. Evans testified that he examined the claimant on February 9, 2011. The doctor stated that the claimant advised him that she was a lifetime nonsmoker. He described the cause of pulmonary emboli as "multifactorial." Dr. Evans opined that the claimant's risk factors included obesity, COPD, age, and hypothyroidism. The doctor explained that travel increases one's risk of blood clots and pulmonary emboli. However, Dr. Evans found it "somewhat unlikely that a three-and-a-half-hour trip broken into two 1.75-hour segments led to a blood clot." The doctor opined that a six to eight hour trip would be required in order to increase the risk for blood clot formation. Dr. Evans stated that he advised patients who have had prior blood clots to get out of their cars and walk around every two hours. On cross-examination, Dr. Evans stated that a short trip could possible precipitate a pulmonary embolism in someone with multiple risk factors. On re-direct, Dr. Evans opined that the claimant's short travel, broken up by the boat ride, did not provoke or contribute to her pulmonary embolism.
The claimant's treating pulmonologist, Dr. Manta, in a report based on a September 20, 2010, examination found that claimant's pulmonary embolism was "most likely precipitated by her prolonged driving for several hours 2 days earlier prior to the event when she had to drive all the way to Alexandria Bay, back and forth during 1 day, and also probably most likely precipitated by dehydration as it was very hot in this area during those days."
Dr. Manta was deposed on May 3, 2011, and testified that he first treated the claimant on September 20, 2010. Dr. Manta testified that "prolonged immobilization is a risk factor for [thrombotic] disease, which included pulmonary emboli of the lungs" (Deposition, Dr. Manta, 5/25/11, p. 6). When asked how prolonged a period of immobilization, such driving a bus, would have to be in order to be a risk factor, Dr. Manta responded, "I would say it has to be more than, you know, at least, you know, two, three hours" (id.). Dr. Manta testified that "the most likely explanation" of what caused claimant's pulmonary embolism, was that it was "a combination of prolonged immobilization during that longer ride out of town," along with dehydration and claimant's obesity (id. at 9). On cross-examination, Dr. Manta testified that he was not aware that the drive to Alexandria Bay took less than two hours. When asked whether his opinion on causal relationship would change if (as testified to by the claimant) the drive to Alexandria Bay only took one-hour and forty-five minutes, Dr. Manta responded, "I am – you know, I haven't reviewed that. I'm not familiar with exactly how long, you know, how prolonged immobilization has to be before, but, you know, I guess the, you know, the shorter immobilization could be the lower the chance of that being the cause of it" (id. at 10-11).
At a hearing held on May 25, 2011, the WCLJ credited the testimony of Dr. Manta, established the claim, and set the date of accident as August 18, 2010. The resulting decision was filed on May 31, 2011.
It is "axiomatic that a claimant bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence" (Matter of Williams v Colgate Univ., 54 AD3d 1121  [citations omitted]). Such medical opinions need not be expressed with absolute or reasonable certainty (Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890 ). They must, however, be an indication of sufficient probability as to the cause of the injury, and the medical opinion must be supported by a rational basis (id.). "[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920  [citations and internal quotation marks omitted]).
Furthermore, WCL § 21(5) provides a presumption that, in the absence of substantial evidence to the contrary, the contents of medical and surgical reports introduced into evidence by claimants for compensation shall constitute prima facie medical evidence of fact as to the matter contained therein. However, the WCL § 21(5) presumption "does not undermine the Board's ability to assess the evidence and determine the weight that it should be accorded" (Matter of Lumia v City of New York, 21 AD3d 600  [citations omitted]).
Dr. Aziz and Dr. Frechette failed to offer an opinion on causal relationship and Dr. Evans found that claimant's embolism was not casually related to her employment. However, both Dr. Frechette and Dr. Evans opined that an extended period of immobilization could contribute to an embolism.
The only physician to offer an opinion that prolonged driving at work was a likely contributing cause of decedent's embolism was Dr. Manta. However, Dr. Manta testified that a person would have to be immobilized for at least two or three hours for the risk of an embolism to increase. When asked on cross-examination whether his opinion on causal relationship would change if (as testified to by the claimant) the drive to Alexandria Bay only took one-hour and forty-five minutes, Dr. Manta responded, "I am – you know, I haven't reviewed that I am not familiar with exactly how long, you know, how prolonged immobilization has to be before, but, you know, I guess the, you know, the shorter immobilization could be the lower the chance of that being the cause of it."
The medical experts in this claim agree that an extended period of immobilization could contribute to an embolism, but differ regarding how long the period of immobilization must be for an embolism to occur. The record is clear that two days before claimant went to the hospital and was diagnosed with an embolism, she went on a lengthy trip, driving for an hour and forty-five minutes each way and sitting on a boat for an extended period of time. Given these circumstances, the Full Board directs that claimant be referred to an impartial medical specialist in pulmonology for an opinion whether it was probable that claimant's work activities on August 18, 2010, were a contributing cause of her pulmonary embolism.
ACCORDINGLY, the WCLJ decision filed on May 31, 2011, is RESCINDED without prejudice and claimant is referred to an impartial medical specialist in the field of pulmonology. The case is continued.