Case # G0212412
Date of Accident: 12/27/2009
District Office: Albany
Employer: Slack Chemical
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 63912547-181
Date of Filing of Decision: 03/29/2012
Claimant's Attorney: Zappone & Fiore Law Firm
Panel: Robert E. Beloten

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 May 23, 2011.

ISSUE

The issue presented for Full Board Review is whether there is sufficient evidence to establish the claim for a causally related death. The Workers' Compensation Law Judge (WCLJ) established the claim for workers' compensation death benefits.

The Board Panel majority affirmed the WCLJ's decision.

The dissenting Board Panel member found that the carrier sufficiently rebutted the presumption that the decedent's accident arose out of and in the course of his employment.

On June 17, 2011, the carrier filed a request for Full Board Review of the Board Panel decision duly filed and served on May 23, 2011. The claimant filed a rebuttal on July 15, 2011.

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

FACTS

A form C-62 (Claim for Compensation in a Death Case) filed on January 26, 2010, indicated that the decedent, a truck driver, died when he had a "heart attack resulting in a rollover accident". A form C-7 was filed on behalf of the employer, controverting the claim on the basis that the decedent's death was not causally related to his activities at work, and that no medical evidence had been received.

The medical examiner's autopsy report dated December 27, 2009, stated that the cause of the decedent's death was obstructive coronary artery disease; severe atherosclerosis; and moderate liver steatosis. The certificate of death lists the cause of the decedent's death as sudden cardiac arrest, coronary artery occlusion and atherosclerosis.

A police report of the accident indicated that a police investigation into the decedent's accident concluded that the decedent had driven off the shoulder of a roadway, causing his tanker trunk to overturn. The decedent was trapped inside the cab of the truck. The investigation revealed no "signs of braking, steering or any other crash avoidance measure." It was raining moderately and the ambient temperature was 43 degrees. The roadway was wet but not frozen. The tractor and trailer involved in the accident was in good working order prior to the collision. There were no violations in the driver's log book. The decedent had completed the December 27, 2009, log up until 5:15 hours and the accident was called in at 5:21 hours. The tank trailer contained 45,000 pounds of sodium hydroxide solution. The police report stated: "Investigation complete, accident determined to be caused by medical condition."

Testimony was taken at a hearing held on April 6, 2010, from the decedent's widow, the employer's dispatcher, and a manager with the employer.

The decedent's widow testified that on December 27, 2009, the decedent was employed as a truck driver for the employer. In the six months prior to his death, the decedent had been working six days per week, for a total of 70 hours per week, which was an increase from his prior work schedule. The decedent's widow testified that the claimant had experienced stress as a result of his increased work hours. The decedent was off work the two days before prior to December 27, 2009. The decedent's widow testified that the decedent had an EKG, blood work and a stress test, to test the health of his heart in 2008, after an episode of dizziness. The decedent's widow said that all of the testing showed no abnormalities and the decedent did not miss any time from work due to any heart issues. The decedent's widow testified that the decedent treated with Dr. Krastins on a monthly basis for various health issues, but that the decedent had no heart problems prior to December 27, 2009. The decedent's widow admitted that her husband had been taking blood pressure medicine at the time of his death.

The employer's dispatcher testified that he dispatched truck drivers for the employer, and that the decedent was scheduled to work on the date of his death. The dispatcher testified that the decedent was scheduled to arrive at the employer's premises at approximately 5:00 a.m., on the date of his death. The decedent did not have to load his truck before he began his trip. The dispatcher admitted that driving a chemical truck can be more stressful than driving a regular truck because the fluid moves within the tanker, thus making the work more hazardous and difficult.

A manager with the employer testified that he did not see the decedent on the date of the decedent's death. At 5:30 a.m. on December 27, 2009, the manager received notification that the decedent had an accident. The accident was investigated by the police and the Department of Transportation, and there was a finding that there were no deficiencies in the decedent's truck or trailer that would have caused the accident. Further, the decedent's driving record was in compliance with all rules regarding the number of hours that a truck driver is allowed to work. The manager admitted that the decedent was transporting a hazardous material at the time of his accident.

On July 16, 2010, Dr. Manor, the carrier's consultant in internal medicine and cardiology, testified that the records of the decedent's treating physician, Dr. Garfinkle, noted that the decedent had a prior history of hypertension and hyperlipidemia. The decedent had taken a cholesterol lowering medication and two separate blood pressure medications. Based on his review of the claimant's medical records, the autopsy report and the police reports, among other documents, Dr. Manor diagnosed the decedent as having suffered a cardiac arrest as a consequence of acute coronary artery syndrome, secondary to atherosclerosis. Dr. Manor opined that the decedent would have died whether he was working or not, given his hypertension, high cholesterol and the fact that the decedent was a middle-age man. Dr. Manor admitted that someone with the decedent's heart condition could have potentially lived without ever suffering a heart attack. Dr. Manor also admitted that a sudden shock or fright could have caused a heart attack in someone with the decedent's heart condition. Dr. Manor could not give a medical opinion regarding whether the decedent's heart attack occurred before or after the motor vehicle accident; however, based on the results of the police investigation which found that the decedent did not engage in any avoidance measures prior to the accident, and the fact that the decedent's death would have been sudden, Dr. Manor inferred that the decedent suffered a heart attack prior to the motor vehicle accident.

On August 9, 2010, Dr. Paston, a Board certified pathologist, testified by deposition. Dr. Paston filed a C-64 (Proof of Death), with the Board on February 4, 2010, indicating that the direct cause of the decedent's death was coronary artery disease as shown on the autopsy. Dr. Paston performed a post-mortem examination of the decedent and found the cause of death to be obstructive coronary artery disease. Dr. Paston confirmed that the decedent died as a result of the heart attack and not as a result of a trauma related to the motor vehicle accident. Dr. Paston could not offer an opinion on whether the decedent's heart attack occurred before or after his motor vehicle accident. Dr. Paston did not know if the decedent had any related symptoms prior to his heart attack. However, Dr. Paston testified that the claimant was taking a medication at the time of his death which is used to treat coronary artery disease. Dr. Paston testified that it is possible for someone with coronary artery disease to go through his life without ever suffering a heart attack. Dr. Paston also testified that in someone with coronary artery disease, a shock or sudden fright could induce a heart attack.

By a reserved decision filed on October 28, 2010, the WCLJ, among other things, established the case for a compensable death, finding that the carrier had failed to rebut the presumption set forth in Workers' Compensation Law (WCL) § 21(1).

LEGAL ANALYSIS

"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]).

Further, 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]).

The claimant herein is entitled to the statutory presumption set forth in WCL § 21(1), that the decedent's death arose out of his employment. However, the carrier has rebutted that presumption with substantial evidence that decedent's heart attack was caused solely by factors unrelated to his employment. The autopsy report found that the cause of the decedent's death was obstructive coronary artery disease, severe atherosclerosis, and moderate liver steatosis, and the certificate of death lists the cause of death as sudden cardiac arrest, coronary artery occlusion and atherosclerosis. Dr. Manor found that decedent's death was cardiac arrest as a consequence of acute coronary artery syndrome, secondary to atherosclerosis, and that decedent would have died whether he was working or not, given his cardiac risk factors. Dr. Paston found the cause of death to be obstructive coronary artery disease.

However, while the presumption provided by WCL § 21(1) cannot be relied upon, by itself, to establish this claim, the preponderance of the evidence in the record nonetheless supports a finding that decedent's death arose out of and in the course of his employment. The police investigation report indicates that the accident was called in at approximately 5:21 a.m. on December 27, 2009 (prior to sunrise), and that it was raining and the roadway was wet. At the time of the accident, decedent was transporting hazardous chemicals and the employer's dispatcher testified that driving a chemical truck can be more stressful than driving a regular truck because the fluid moves within the tanker, making the work more hazardous and difficult. Both Dr. Manor and Dr. Paston testified that shock or sudden fright could induce a heart attack.

Based on the record before us, while there is conflicting evidence on the issue of causation, the Full Board finds that the preponderance of the evidence supports a finding that the motor vehicle accident occurred first, and precipitated decedent's heart attack, and therefore decedent's death arose out of and in the course of his employment.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed on October 28, 2010, is AFFIRMED. No further action is planned by the Board at this time.