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 on April 4, 2012.
The issue presented for Mandatory Full Board Review is whether the decedent's established injury involving a myocardial infarction contributed to his death.
In a reserved decision filed on February 14, 2011, the Workers' Compensation Law Judge (WCLJ) established the claim for a causally related death and continued the case for awards.
In a Memorandum of Decision filed April 4, 2012, the Board Panel majority reversed the WCLJ's decision, concluding that "the evidence does not support the finding that the decedent's compensable myocardial infarction sustained on May 25, 1995, contributed to his death on July 20, 2006."
The dissenting Board Panel member would have affirmed the WCLJ's decision to establish the death claim, finding that, "based upon the credible testimony of Dr. Luginbuhl, there is sufficient evidence in the instant record to [con]clude that the decedent's treatment for cancer, was hindered by his compensable heart condition."
In her application for Mandatory Full Board Review filed on May 2, 2012, the claimant requests that the decision of the dissent be adopted as the decision of the Full Board. The claimant argues that the dissenting Board Panel member correctly applied the relevant legal standard set forth in Matter of Losso v Tesco Traffic Servs. (248 AD2d 812 ]1998]), to establish the claim for causally related death based on the evidence in the record that shows that the established heart condition limited the available treatment options and hastened the decedent's death.
In a rebuttal filed with the Board on May 29, 2012, the carrier requests that the majority decision be affirmed, because there is insufficient evidence to show that "the [decedent's] treatment for his unrelated metastatic prostate cancer was in any way altered because of [his] prior compensable cardiac condition." The carrier argues that the Losso case is not applicable where, as here, there is no evidence that the decedent's heart condition limited the cancer treatment and weakened the decedent's cardiovascular system.
Upon review, the Full Board votes to adopt the following findings and conclusions.
WCB Case #29513161 is established for a myocardial infarction, resulting from an accident that occurred on May 25, 1995. In a decision filed on December 3, 1997, the decedent (then the claimant) was classified as permanently partially disabled.
The decedent died on July 20, 2006, resulting in WCB Case #40805231. In an attachment to the C-62 death claim form, the claimant explained that the work-related heart attack caused substantial heart wall damage and disability up until the date of the decedent's death. The claimant further explained that "[i]t is believed that his damaged heart, along with prostate cancer were substantial contributing factors to his ultimate death on July 20, 2006." The decedent's death certificate was submitted to the Board and indicates "metastatic prostate cancer" as the sole cause of death. The death certificate was signed by Dr. Grossman.
In a letter dated February 2, 2009, Dr. Luginbuhl, the decedent's treating oncologist, opined that the decedent's work-related myocardial infarction on May 25, 1995, was a significant factor in his premature death. Dr. Luginbuhl explained that "[h]ad his cardiac function been normal he would have been able tolerate more aggressive treatment for his metastatic prostate cancer that could have significantly prolonged his life. [However, the decedent] was unable to tolerate aggressive therapy due to his prior heart attack."
Dr. Cantor, the carrier's consulting cardiologist, submitted a report of a review of the decedent's medical records dated August 6, 2009, and noted that according to a discharge summary dated March 1, 2006, the decedent had been admitted to the hospital for chest pain, and a nuclear stress test revealed a fixed inferolateral defect and a questionable slight perfusion abnormality of the distal septum. An echocardiogram showed an ejection fraction of 50%. The decedent's medications at that time were for diabetes, hyperlipidemia, and hypertension. However, there is no indication that the decedent was on any beta blockers for heart disease. Dr. Cantor opined that his initial impression, based on a normal ejection fraction and no evidence of ischemia, is that the decedent's underlying cardiac disease did not contribute to his death from metastatic prostate cancer. However, Dr. Cantor also noted that he would like to see the actual report of the stress test and any cardiology follow up. Further, while he did not believe that more aggressive cancer treatment was affected by the pre-existing heart attack, Dr. Cantor conceded that he "would be interested in knowing what other treatments he would have been offered for his metastatic disease."
On December 3, 2010, Dr. Grossman testified that he had no recollection of treating the decedent.
On December 3, 2010, Dr. Luginbuhl testified that he first saw decedent in July 2005 in consultation. The decedent had a history of Stage IV (final stage) metastatic prostate cancer and a history of heart disease, high cholesterol, non-insulin dependent diabetes mellitus. The decedent had a heart attack in 1995, and had undergone angioplasty. More recently, the decedent had undergone treatment for his metastatic prostate cancer, including a surgical orchiectomy and radiation treatment. Prior to seeing Dr. Luginbuhl, decedent had elected to discontinue the radiation therapy because of side effects. Dr. Luginbuhl noted that there was a more elevated toxicity due to the radiation than expected and concluded that the radiation side effects "could certainly have been increased by his history of heart disease and the fact that he had had a heart attack in the past" (Deposition, 12/3/10, p. 8). Dr. Luginbuhl stated that any alternative therapy would be tempered because of the heart attack. After discontinuance of the radiation therapy, the decedent was treated with medication to strengthen his bones, and also commenced chemotherapy. However, the decedent received a modified dosage of chemotherapy because of the heart disease. Dr. Luginbuhl opined that decedent would have lived an additional three to six months longer if he had been able to undergo the full range of treatment available. Dr. Luginbuhl conceded that he did not know what kind of heart attack decedent suffered in 1995 or how much damage was done to the heart muscle.
On December 8, 2010, Dr. Cantor testified that he performed a records review, but he never reviewed any records from the decedent's 1995 heart attack. He did review records related to the treatment of the decedent's metastatic prostate cancer. In March 2006, the decedent underwent a nuclear stress test that showed a prior inferior myocardial infarction. The echocardiogram revealed a 50% ejection fraction, which is normal. Dr. Cantor conceded that he did not have a detailed history of the 1995 heart attack. Further, while he did not believe that any treatment for the cancer would be affected by the pre-existing heart attack, he conceded that he was not fully aware of all of the oncological options and would defer to an oncologist regarding the proper treatment options.
In the reserved decision filed on February 14, 2011, the WCLJ established WCB Case #40805231 for causally related death based upon the credible testimony of Dr. Luginbuhl. The WCLJ noted the award for death benefits made in Matter of Losso v Tesco Traffic Servs., 248 AD2d 812 (1998), discussed below.
"[T]he work-related illness need not be the sole or even the most direct cause of death, provided that the claimant demonstrates that the compensable illness was a contributing factor in the decedent's demise (see Matter of Altes v Petrocelli Elec. Co., 270 AD2d 767 ; Matter of Losso v Tesco Traffic Servs., 248 AD2d 812 ; see also Matter of Freer v New Process Gear, 237 AD2d 869 )" (Matter of Imbriani v Berkar Knitting Mills, 277 AD2d 727 ).
In Matter of Losso v Tesco Traffic Servs., 248 AD2d 812 (1998), the claimant's decedent had an established injury involving a heart attack that occurred in 1985. Subsequently, the decedent required angioplasties and powerful cardiac medications to treat the damage that had been caused by the heart attack. In 1986, the decedent was later diagnosed with leukemia and was treated with standard chemotherapy. The decedent died in 1988 and the causes of death were listed as acute monomyelocytic leukemia and cardiopulmonary arrest.
In Losso, the Board's decision to award death benefits was affirmed based on the medical evidence in the record that "indicated that decedent's demise was causally related, in part, to the residual effects of the myocardial infarction and his resulting weakened cardiovascular system" (id.). However, the Court also noted the medical evidence in the record that "indicated that decedent's heart condition limited the drug therapy that could be employed to fight the cancer and…probably hastened his death as a result (see Matter of Cramer v BASF Wyandotte Corp., 191 AD2d 831 )" (Losso, 248 AD2d 812 ).
Initially, the carrier is correct that there is insufficient evidence that the decedent's heart attack weakened the decedent's cardiovascular system since neither Dr. Luginbuhl nor Dr. Cantor had details about the 1995 injury. However, the record does contain evidence that the established heart condition limited the treatment options that were available to the decedent. Specifically, Dr. Luginbuhl opined that the decedent's chemotherapy dosage was modified because of the heart disease, and that the less aggressive cancer treatment that was provided to the decedent hastened his death by three to six months.
The WCLJ found that Dr. Luginbuhl, an oncologist, was more credible than Dr. Cantor when he testified that the decedent's treatment for cancer was hindered by his compensable heart condition. This credibility determination is supported by the evidence in the record. Specifically, while Dr. Cantor, a cardiologist, opined that he did not believe that any treatment for the cancer would be affected by the pre-existing heart attack, he also testified that he was not an oncologist, and he conceded that he was not fully aware of all of the oncological options. Dr. Cantor specifically testified that he would defer to an oncologist regarding the proper treatment options.
Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the decedent's compensable myocardial infarction sustained on May 25, 1995, contributed to his death on July 20, 2006.
Accordingly, the WCLJ reserved decision filed February 14, 2011, is AFFIRMED. The case is continued.