Case # 30606867
Date of Accident: 07/24/2006
District Office: Albany
Employer: Profex Inc
Carrier: Contractors Compensation Trust
Carrier ID No.: W375331
Carrier Case No.: 4-106-109539
Date of Filing of Decision: 03/29/2012
Claimant's Attorney: Peter M. Cordovano
Panel: Robert E. Beloten

* This decision also pertains to the following case(s): 30606871.

The Full Board, at its meeting held on February 28, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on February 11, 2011.

ISSUE

The issue presented for Full Board Review is whether the decedent's myocardial infarction arose out of and in the course of his employment.

The WCLJ found that the decedent's myocardial infarction and resulting death arose out of and in the course of his employment, based upon the report of the claimant's consultant.

The Board Panel majority disagreed and disallowed the claim.

The dissenting Board Panel member found that the decedent's death was causally related to his employment and would have affirmed the WCLJ's decision establishing the claim.

On March 8, 2011, the decedent's spouse (claimant) filed a request for Mandatory Full Board Review. The carrier filed a rebuttal on April 7, 2011.

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

FACTS

The claimant filed a Form C-62, Claim for Compensation in a Death Case, on August 22, 2006, alleging that the decedent, her husband, suffered a myocardial infarction while working as a laborer on July 24, 2006, and died as a result on July 31, 2006. A claim for lifetime benefits based on decedent's myocardial infraction was also indexed (WCB Case No. 30606867). The Claimant filed with the Board a copy of the death certificate, which indicated that the decedent died on July 31, 2006, of myocardial infarction and cardiac arrest brought on by coronary artery disease.

In decisions filed on October 5, 2006, and April 24, 2008, the WCLJ found that the claimant had not submitted sufficient prima facie medical evidence and marked to case for no further action.

On August 20, 2009, the claimant submitted the records review report of Dr. Raymond Basri. In the report, Dr. Basri wrote that on the morning of July 24, 2006, decedent was "reported to have been doing outside landscaping duties including raking from approximately 7:00 AM until 8:00 AM," when he reported that he was not feeling well and was taken to the hospital emergency room by his boss. Dr. Basri noted that the decedent was previously admitted to the hospital in June 2005 due to chest pain. At that time, the decedent was diagnosed with conditions including hypertension, hyperlipidemia, alcohol abuse, and heavy tobacco usage, but not coronary artery disease. Dr. Basri observed that the decedent's physicians had put him on medication, but the claimant reported that the decedent stopped taking the medication once he found out he could not drink alcohol while taking them. Dr. Basri also noted that the claimant reported that the decedent was showing symptoms of fatigue and heat intolerance in the two weeks prior to the accident, and had sought medical treatment for a rash on his chest a few days before.

Dr. Basri opined that the decedent died as a result of acute coronary insufficiency combined with strenuous activity. Dr. Basri opined that the decedent's work activities "directly contributed" to his injury, because, despite several risk factors, the decedent was still able to work prior to the myocardial infarction.

Dr. Basri also testified by deposition on April 21, 2010. Dr. Basri identified himself as an internal medicine physician who specializes in the treatment of diabetes. He stated that the cause of death listed on the death certificate was accurate. Dr. Basri noted that the decedent had several risk factors, including high blood pressure, high cholesterol, tobacco use and alcohol abuse, but the decedent's coronary artery disease was not symptomatic prior to July 24, 2006. Dr. Basri stated that in his opinion, the decedent was engaged in strenuous activity at the onset of his symptoms is based upon statements the he received from the Claimant and the fact that the decedent was brought to the hospital by his boss. Dr. Basri admitted that the medical records did not indicate that the decedent was engaged in strenuous activity.

The carrier's consultant, Dr. Henry Insel, filed a report based upon a records review on December 7, 2009. The documents provided to Dr. Insel included a summary history, which stated that the decedent had arrived at work on the morning of July 24, 2006, complaining of pain and had not been performing work at the time he began experiencing symptoms. Dr. Insel was also provided with a copy of Dr. Basri's report.

Dr. Insel opined that the decedent's death was due to an acute myocardial infarction and that a review of the medical records "does not support with any degree of medical certainty that [claimant's] work related activities had a significant contribution to his MI/death." Dr. Insel noted that the decedent suffered from several risk factors, including age, gender, genetic predisposition, hypertension, hyperlipidemia, cigarette smoking, alcohol abuse and non-compliance with medical therapy. Dr. Insel stated that myocardial infarctions are known to occur in the morning, and even occur during sleep. Dr. Insel also noted that "[t]here was no mention in the hospital medical records that [claimant] was performing any unusually difficult [or] extremely strenuous/stressful activity that would be considered a more significant contributing factor to the occurrence of the cardiac event."

One of the decedent's co-workers and his site supervisor testified at a hearing on February 3, 2010. The coworker testified that he was working as an equipment operator, moving fill with a backhoe on July 24, 2006. The decedent was working as a laborer, raking the fill into a trench, which the coworker described as "minimal" work. The coworker recalled that the decedent had been complaining of not feeling well for about a week. The coworker stated that the decedent became sluggish and stopped working to go sit down.

The supervisor testified that the decedent began work at approximately 7:00 a.m. on July 24, 2006, raking soil and removing rocks. The Supervisor did not recall the decedent acting unusually at that time. The supervisor returned to the work site at approximately 8:00 a.m. and found the decedent sitting under a tree, complaining of abdominal pain. The decedent said that he had called his wife to come get him, but the supervisor offered to bring the decedent to the hospital. When they arrived at the hospital, the supervisor needed the assistance of hospital personnel to get the decedent out of the truck. The decedent then suffered a heart attack.

The medical records indicate that following the claimant's arrival at the hospital, he slipped into a coma and died on July 31, 2006.

At the close of the hearing, the WCLJ established the claim based upon the opinion of Dr. Basri. The WCLJ's findings were memorialized in a decision filed May 25, 2010.

LEGAL ANALYSIS

Presumption under WCL § 21

"It is well settled that there is a presumption of compensability when an unwitnessed or unexplained death occurs during the course of one's employment (see Workers' Compensation Law § 21[1]; Matter of Marcus v City of Troy, 39 AD3d 912 [2007]; Matter of Salley v New York City Police Dept., 38 AD3d 1150 [2007]). This presumption may be rebutted, however, by substantial evidence to the contrary (see Workers' Compensation Law § 21; Matter of Pinto v Southport Correctional Facility, 19 AD3d 948 [2005]). Moreover, rebuttal of the presumption 'does not require irrefutable proof excluding all … conclusions other than that offered by the employer that the accidental injury was not work related' (id. at 950 n). Once the presumption is rebutted, a claimant then has the burden of establishing a causally related death (see Matter of Marcus v City of Troy, 39 AD3d at 913)" (Matter of Petrocelli v Sewanhaka Cent. School Dist., 54 AD3d 1143 [2008]). When an autopsy report and death certificate indicate that the decedent worker's death was caused by factors unrelated to employment, the Board may find that the presumption of compensability has been rebutted (see Matter of Hanna v Able Body Labor, 26 AD3d 1200 [2009]).

In the present case, the death certificate, which identified coronary artery disease and made no reference to the decedent's activities on July 24, 2006, was sufficient evidence to rebut the presumption under WCL § 21 that the claim is compensable. Therefore, the claimant had the burden of proving that the accident was compensable.

Accident Arising Out of and in the Course of Employment

Not every heart attack that occurs during work is compensable (see Currie v Davenport, 37 NY2d 472 [1975]). However, a "heart injury when brought on by overexertion or strain in the course of daily work is compensable, though a pre-existing pathology may have been a contributing factor" (Matter of Masse v Robinson, 301 NY 34 [1950]). That work-related strain need not be "more severe than was imposed by the usual nature of the employee's work (e.g., Matter of Dworak v Greenbaum Co., 287 NY 555 [1941]; Matter of La Fountain v La Fountain, 284 NY 729 [1940])" (Burris v Lewis, 2 NY2d 323 [1957]). According to the Court of Appeals, "the weight of authority holds that if the physical effort of the work is too strenuous for the man, time and place of occurrence of a definite physical event, it may be found accidental upon a sufficient supporting medical record" (Matter of Schuren v Wolfson, 30 NY2d 90 [1972]). This is so even when the physical effort that triggered the heart attack would not have been considered "not much for a person in normal health" (id.).

In the present case, Dr. Basri concluded that although decedent had several cardiac risk factors, the work decedent was performing on the morning of July 24, 2006, which Dr. Basri described as "outside landscaping duties including raking," contributed to his heart attack. The description of the work decedent was performing on the morning of July 24, 2006, conveyed to Dr. Basri, and reflected in his report, is consistent with the work efforts described in the testimony of decedent's coworker and supervisor. While Dr. Insel found that the medical records do "not support with any degree of medical certainty that [claimant's] work related activities had a significant contribution to his MI/death," the doctor did not conclude that claimant's work activities did not contribute at all to the heart attack [emphasis added]. Where credible medical evidence exists that preexisting risk factor constituted the sole cause of a heart attack, the Board may elect to credit that evidence and disallow the claim (see Matter of Wilson v. Reddy Constr. Co., 272 AD2d 806 [2000]). However, when the evidence reflects that strenuous work activities were at least partially responsible for precipitating the heart attack, the resulting injury is compensable (see Matter of Masse v Robinson, 301 NY 34).

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that strenuous work contributed to decedent's heart attack and subsequent death.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on May 25, 2010, is AFFIRMED. The case is continued.