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 January 19, 2012.
The issue presented for Mandatory Full Board Review is whether the claimant suffered a work-related traumatic carotid artery dissection and a consequential stroke.
In the reserved decision filed on November 19, 2010, the Workers' Compensation Law Judge (WCLJ) established the claim for a work-related traumatic carotid artery dissection and consequential stroke.
The Board Panel majority affirmed the WCLJ's decision.
The dissenting Board Panel member found that the carotid artery dissection and resulting stroke were not related to the claimant's employment.
On February 17, 2012, the carrier filed a request for Mandatory Full Board Review. The claimant filed a rebuttal on March 19, 2012.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant filed a C-3 (Employee Claim) indicating that an injury occurred on February 4, 2010, in the course of employment, which he described as "sales/service" telephone/internet service provider. According to the C-3, on February 4, 2010, the claimant was climbing a pole and pulling wires when he jerked his head suddenly and felt a pop in his neck. Thereafter the claimant experienced pain, sickness, weakness, dizziness, poor coordination and balance. A co-worker was present at the time. On February 16, 2010, the claimant returned to work and suffered a stroke that caused right side numbness and dysfunction. He was hospitalized as a result. According to the C-3, claimant first treated with Dr. Salipante and that he continued to treat with Dr. Benesch.
In a February 11, 2010, report, claimant's treating physician, Dr. Salipante, noted that claimant complained of acute dizziness, with headache and nausea, for the last week. Claimant also complained of dizziness for the last 4-6 months, which Dr. Salipante believed was due to vertigo (document #173245574, p. 48-50).
In a February 25, 2010, report, Dr. Salipante indicated that claimant suffered a stroke on February 16, 2010, and that a carotid angiogram performed the next day revealed a left carotid dissection. Dr. Salipante also wrote:
Pt. gave me additional information which was not available to me or reported to me by the patient during the visit of 2/11/10. He stated, in retrospect, that on 2/4/10 he developed neck pain when coming down a ladder while at work (he works as a telephone lineman for Frontier telephone) and asked his coworker to place the ladder on a truck because the patient had neck pain. Pt. further stated the neck pain continued during 2/5/10 and became throat pain on 2/6/10. Throat discomfort continued during the next few days. He performed light duty work after speaking with his boss on 2/8 and 2/9 and took off 2/10 because he did not feel well.
(Document #173245574 p. 51-53).
In a medical narrative report dated February 17, 2010, Dr. Robb documented that the claimant experienced pain in his left neck and throat for approximately one to two weeks. She also reported that he had exhibited the same difficulty while at work on February 16, 2010. She also indicated that he experienced migraine headaches.
The claimant filed an RFA-1 (Claimant's Request for Further Action) on March 4, 2010, requesting a hearing to establish prima facie medical evidence, connecting his injuries to the work place-place of incident. Attached was Dr. Benesch's medical report dated July 13, 2010. In the report, he opined that the claimant sustained a probable traumatic carotid artery dissection that occurred while the he was working. He then concluded that the claimant developed a left hemispheric stroke thereafter, which was casually related to his work-related injury.
In an IME report dated October 25, 2010, the carrier's consultant, Dr. Hughes, wrote:
"I do not feel that this diagnosis was causally related to any work injury. I base this on the fact that he did not mention any work injury to Dr. Sallpante (sic) on 2/11/10, not on 2/16/2010 when he was admitted to the hospital, or when he was transferred to Strong Memorial Hospital. It is pretty clear cut that the carotid dissection occurred on 2/16/10 at his work place at 9 a.m. when he felt weakness of the right arm and his co-workers noted slurring of his speech." (IME-4 DOC ID 172680221 at p.7).
The claimant testified on September 29, 2010, that while working for the employer on February 4, 2010, he pulled his neck and felt a pop and immediate pain. The claimant indicated that he had been pulling wires for approximately one-half hour at the time of the incident and felt pain immediately, followed by nausea and dizziness. According to claimant, he mentioned the incident to his boss. The claimant further testified that while working on February 16, 2010, at a different location, he noticed that his right arm and his right leg felt numb. He stated that he told his supervisor and he was ultimately taken to the hospital where he was admitted for seven days and diagnosed as having suffered a stroke. On cross-examination, the claimant testified that he had no prior history of dizziness or fainting and no prior cardiac workup. The claimant had previously undergone a CT scan of his brain because he was experiencing migraine headaches, and is taking medication for migraines. He has not been diagnosed with high blood pressure or low blood pressure. The claimant testified that when he had the stroke on February 16, 2010, his supervisor was told right away and she came to see him and was aware of it that same day.
An employer witness testified that he handles the paperwork involving work-related injuries for the employer. He stated that paperwork was filled out on April 7, 2010, concerning claimant's alleged injury at work on February 4, 2010, but the paperwork did not state when the employer first had notice of the February 4, 2010, incident. He also stated that he was aware of the claimant's stroke the day it happened.
Dr. Benesch testified by deposition on September 23, 2010, that he is a neurologist and is Board certified in vascular neurology. He first treated the claimant as an inpatient in the hospital and then afterwards saw the claimant at the request of Dr. Salipante. While in the hospital, the claimant was having problems with his speech and finding words. The doctor noted that the claimant was initially diagnosed with a clinical stroke. The doctor stated that a CT scan was performed which showed a stroke in the left hemisphere and a carotid artery dissection and that based on the clinical findings and his exam he believed the two conditions were related. Dr. Benesch stated that carotid artery dissections are not a common cause of strokes, but can cause one. He believed the period between the claimant's initial injury to his neck and the onset of the stroke was within a reasonable time frame for the two to be related. The doctor testified that the claimant's complaints of pain, nausea, and dizziness for several days after the neck injury were what he would expect to see from an artery dissection. Dr. Benesch stated that the claimant did not appear to have any predisposition for a carotid artery dissection and he believed that it was probable that the artery dissection was related to the incident of February 4, 2010. The doctor testified that initially the cause of the artery dissection was unclear due to the time between the incident on February 4, 2010, and the CT scan on February 16, 2010, but over time as he treated the patient and became more familiar with the claimant's history he believed the artery dissection was caused by the incident on February 4, 2010.
Dr. Hughes, the carrier's consultant, testified on October 28, 2010, that he examined the claimant on September 16, 2010, and issued a report from that exam and that he also issued an addendum on October 25, 2010. He stated that he was not able to provide an opinion on causality at the time of the initial exam and report until he had reviewed the claimant's medical records. However, upon reviewing the medical records he agreed with the diagnosis of a carotid artery dissection resulting in a stroke, but opined that he did not believe that they were related to the claimant's work. Dr. Hughes testified that since there was no documentation of neck pain in the prior treatment records of February 2010, he found that the carotid artery dissection was spontaneous and not related to the claimant's work. In addition, the doctor stated that the claimant had a prior history of migraines, which was a risk factor for a stroke.
On cross-examination, Dr. Hughes testified that he did receive a history from the claimant that he felt a pop in his neck and pain in an incident on February 4, 2010, and that the pain continued for several days. He also stated that when a person suffers an artery dissection it can lead to a stroke in seven to fourteen days. The doctor testified that the fact that the claimant did not mention the neck injury to any doctors prior to February 16, 2010, is partly why he did not believe the artery dissection was related to his work. On redirect, Dr. Hughes testified that the claimant did have symptoms of nausea, vertigo, and tinnitus prior to February 4, 2010.
In a reserved decision filed on November 19, 2010, the WCLJ established the claim for a carotid artery dissection and consequential stroke.
Dr. Benesch and Dr. Hughes agree that claimant suffered a carotid artery dissection which subsequently resulted in a stroke. Therefore, the question for the Board to decide is whether claimant's carotid artery dissection was caused by a work-related accident occurring February 4, 2010.
"It [i]s claimant's burden to establish a causal relationship between his employment and his disability by competent medical evidence (see Matter of Sale v Helmsley- Spear, Inc., 6 AD3d 999 ; Matter of Keeley v Jamestown City School Dist., 295AD2d 876 ). To this end, a medical opinion on the issue of causation must signify 'a probability as to the underlying cause' of the claimant's injury which is supported by a rational basis (Matter of Paradise v Goulds Pump, 13 AD3d 764 ; see Matter of Van Patten v Quandt's Wholesale Distribs., 198 AD2d 539 ).'[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship' (Matter of Ayala v DRE Maintenance Corp., 238 AD2d 674 , affd 90 NY2d 914 ; see Matter of Zehr v Jefferson Rehab. Ctr., 17 AD3d 811 )" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 ).
It is within the Board's discretion to resolve conflicting medical opinions (Matter of Peason v Bestcare, 48 AD3d 862, 863 ). Moreover, so long as the Board's determination is supported by substantial evidence, it will be upheld, despite the existence of evidence that may have supported a different result (Matter of Guifarro v Zalman, Reiss & Assoc., 52 AD3d 1126, 1127 ) (Matter of Gilman v Champlain Val. Physicians Hosp., 23 AD3d 860, 860 ).
Here, Dr. Benesch concluded that it was probable that claimant's February 4, 2010, work injury caused his carotid artery dissection, based on the history provided by the claimant. The WCLJ was present and observed claimant's testimony found that he credibly testified that he began experiencing neck pain as the result of his February 4, 2010, accident, and Dr. Benesch found that his symptoms were consistent with having sustained a traumatic carotid artery dissection as a result of that accident. Although the Board is entitled to make its own factual findings and is not bound by the credibility determinations of a WCLJ (see Matter of Ortiz v Five Points Correctional Facility, 307 AD2d 634 ), the credibility determinations of the WCLJ who heard the testimony are entitled to considerable weight (Di Donato v Hartnett, 176 AD2d 1102 ).
The carrier's consultant, Dr. Hughes, based his opinion that the claimant's carotid artery dissection and subsequent stroke were causally related to his employment on the fact that claimant did not mention having suffered a work injury on February 4, 2010, when he treated with Dr. Salipante on February 11, 2010. However, the weight to be given the absence of a history of work-related injury in Dr. Salipante's February 11, 2010, creates an issue of fact for the Board to decide. Finding, as the WCLJ and majority have, that claimant credibly testified regarding the onset of neck pain after his February 4, 2010, accident, the opinion of Dr. Hughes, which appears to be premised on the assumption that claimant's injury did not occur, or did not result in the symptoms he alleges, is insufficient evidence upon which to conclude that claimant's injuries are not causally related.
The Full Board finds that the preponderance of the evidence in the record supports the finding that the claimant's carotid artery dissection and consequential stroke are causally related to his employment.
ACCORDINGLY, the WCLJ reserved decision filed on November 19, 2010, is AFFIRMED. The case is continued.