Case # G0012549
Date of Accident: 09/29/2008
District Office: NYC
Employer: Federal Express Corp
Carrier: Federal Express Corporation
Carrier ID No.: W413785
Carrier Case No.: W0441971000001
Date of Filing of Decision: 08/10/2012
Claimant's Attorney: Cohen & Siegel, LLP
Panel: Robert E. Beloten

The Full Board, at its meeting held on July 17, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed October 11, 2011.

ISSUES

The issues presented for Mandatory Full Board Review are:

1. whether the report of the SIE's consultant, Dr. Head, should be precluded, and;
2. whether the claimant suffered a stroke arising out of and in the course of his employment.

The WCLJ found that the SIE improperly attempted to influence the opinion of its consultant, Dr. Head, and precluded his report and deposition. The WCLJ established the claim for a traumatic brain injury, stroke, and seizure disorder.

The Board Panel majority affirmed the WCLJ's preclusion of Dr. Head's report, and the establishment of the claim.

The dissenting Board Panel member found that the SIE did not improperly influence the independent medical examination, and Dr. Head's report and testimony should not have been precluded. The dissenting Board Panel member found that the case should be returned to the WCLJ for further consideration of the evidence, including Dr. Head's report and testimony.

The self-insured employer (SIE) filed a request for Mandatory Full Board Review on November 10, 2011.

The claimant filed a rebuttal on December 5, 2011.

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

FACTS

The claimant suffered injuries on September 29, 2008, when the delivery truck he was driving was involved in an accident. The claimant filed a C-3 (Employee Claim), on October 15, 2009, alleging that he sustained multiple cerebral hemorrhages and a seizure disorder as a result of the accident. The SIE controverted the claim on the issue of causal relationship.

A Police Accident Report dated September 29, 2008, indicates that the claimant's vehicle sideswiped another vehicle and then turned into and struck a second vehicle (Doc No. 162773601). The report does not indicate that anyone witnessed the accident.

The September 29, 2008, emergency records from Bellevue Hospital indicate that claimant suffered a traumatic brain injury as the result of a motor vehicle collision. It appears from the emergency room records that claimant was confused but conscious upon admission, but subsequently lost consciousness.

The carrier requested an independent medical examination by Dr. Head. In its referral to Dr. Head, the carrier provided that doctor with the following history: "Employee had a stroke prior to striking a bus with his Federal Express truck. Police report indicates employee was swerving prior to this but employee alleging he had the MVA prior to having a stroke. Medical evidence is not clear what came first."

Dr. Head examined the claimant on December 22, 2009. He opined that the claimant suffered a hypertensive stroke due to a pre-existing condition, and that his stroke caused the motor vehicle accident. Dr. Head stated that no objective evidence supported a finding that the claimant suffered a trauma-related head injury.

The claimant and his wife testified at a hearing on January 6, 2010. The claimant was unable to recall the events surrounding the accident, but stated that his job duties included delivering packages. He did recall being in the hospital for at least two months following the accident.

The claimant's wife testified that the claimant reported for work at 6:30 a.m. on the date of the accident. She stated that the claimant's head struck the steering wheel in the accident, and that he spoke with the driver of the other vehicle after the accident. When the claimant's wife arrived at the hospital, the claimant was intubated and a shunt had been inserted to drain a brain hemorrhage. The claimant's wife testified that the police detectives told her that the claimant was driving at the time of the accident, but did not say that the claimant was swerving. She testified that one of the claimant's co-workers told her that damage on the vehicle's windshield indicated that the claimant's head had struck it. At the close of the hearing, the parties agreed to depose the claimant's treating physician, and the SIE's consultant.

The claimant's treating physical medicine and rehabilitation physician, Dr. Greenwald, testified by deposition on March 19, 2010, that he began treating the claimant when the claimant was transferred to the Mount Sinai rehabilitation unit on November 14, 2008. Dr. Greenwald received a history that the claimant had hit his head on the steering wheel in the accident. He noted that the medical records indicated that the claimant was conscious immediately after the accident, but his condition worsened. Dr. Greenwald opined that the claimant's stroke occurred after the accident because the claimant's condition worsened, and a CAT scan showed frontal changes indicating a traumatic injury. Dr. Greenwald noted that a traumatic brain injury can occur without any apparent head trauma.

Dr. Head testified by deposition on April 13, 2010, that the claimant suffered a stroke, but not a traumatic brain injury. He noted that the claimant had a bleed in the lenticular stride arteries, which is where hypertensive bleeds usually occur. Dr. Head stated that generally a brain trauma injury does not occur without some external signs of injury. Since the claimant did not exhibit any external head injuries, Dr. Head opined that it is extremely unlikely that he suffered an accident-related trauma. When asked to explain why the claimant had bleeding in two separate areas of the brain, Dr. Head explained that the claimant may have had a stroke one or two days before the accident or the claimant may have suffered simultaneous strokes. Dr. Head admitted that he was aware that the steering wheel of the vehicle was damaged and that the claimant was driving at the time of the accident. He opined that the claimant may have hit the steering wheel with his chest.

Upon cross-examination, Dr. Head admitted that the stroke may have occurred after the accident, but stated that even if this were the case, it was not indicative of head trauma. Dr. Head stated that his understanding was that the claimant was unconscious from the time of the accident, and therefore the claimant's stroke could not be caused by anxiety over the fact that the accident occurred. However, when referred to the emergency room records which indicated that the claimant was confused, but conscious, Dr. Head stated that it was possible that the claimant did experience anxiety over the accident. Dr. Head further admitted that he did not review the CAT scan or MRI reports, and a proper evaluation of the claimant's condition requires such review. Dr. Head also testified that a traumatic brain injury can occur without external injury if there is an extreme acceleration or deceleration, but he did not know the speed at which the claimant was traveling at the time of the injury.

The claimant's treating neurologist, Dr. Stacy, testified by deposition on April 12, 2010, that he examined the claimant after he was admitted to the rehabilitation unit of Mount Sinai hospital. He noted that a November 26, 2008, MRI indicated that the claimant had blood in the left thalamus and the right gangiocapsular region. Dr. Stacy stated that multiple bleeds do not occur with a stroke, but indicate a traumatic injury. He opined that "at least some of [the claimant's] brain injury was related to trauma" and the claimant's injuries were not entirely due to a stroke (Deposition, Dr. Stacy, 11/26/2008, p. 9). Dr. Stacy stated that it was possible that the claimant suffered a traumatic injury on one side of the brain and a stroke on the other.

In a Reserved Decision filed May 25, 2010, the WCLJ found that the carrier improperly influenced the independent medical examination, and precluded the report and testimony of Dr. Head. The WCLJ found that the SIE did not provide sufficient evidence to rebut the presumption of a compensable injury under WCL § 21, and established the claim for a traumatic brain injury, stroke, and seizure disorder.

LEGAL ANALYSIS

Preclusion of the IME Report

WCL § 13-a(6) provides that "the improper influencing or attempt by any person improperly to influence the medical opinion of any physician who has treated or examined an injured employee, shall be a misdemeanor."

The Board's Guidelines for Communications with Health Care Professionals (WCB Subject No. 046-124, November 24, 2003) provide that:

"parties and their representatives should make every effort to avoid even the appearance that they are attempting to influence the opinion of a health care professional. Contact with health care professionals should be limited to relevant inquiries pertaining to a claimant's condition and treatment. Questions should be carefully crafted so as not to be ambiguous or suggest the response desired.

…

Depending on the nature of the communication, the [WCLJ] or Board Panel may choose to afford that evidence little or no weight, such as when information conveyed to the health care professional is false or misleading, when the inquiries made are ambiguous or leading, when the communication is verbal, or when the contact appears to violate WCL § 13-a."

In its referral to Dr. Head, the carrier provided that doctor with the following history: "Employee had a stroke prior to striking a bus with his Federal Express truck. Police report indicates employee was swerving prior to this but employee alleging he had the MVA prior to having a stroke. Medical evidence is not clear what came first." As worded, the carrier's referral to Dr. Head does not appear to arise to the level of a criminal violation of WCL § 13-a(6). Nor does the referral require that the opinion of Dr. Head be precluded. However, insofar as the referral clearly suggests the opinion which the carrier is seeking, and initially asserts that claimant's stroke occurred prior to the motor vehicle accident, an issue which is controverted by the parties and is central to the resolution of this claim, the Full Board finds that Dr. Head's opinion should be afforded very little weight.

Accidental Injury

"'[T]o be compensable under the Workers' Compensation Law, [an accidental injury] must have arisen both out of and in the course of employment' (Matter of Thompson v New York Tel. Co., 114 AD2d 639 [1985]; see Workers' Compensation Law § 10) … Accidents arising 'in the course of' employment are presumed to arise 'out of' such employment, and this presumption can only be rebutted by substantial evidence to the contrary (see Workers' Compensation Law § 21; Matter of Van Horn v Red Hook Cent. School, 75 AD2d 669 [1980])" (Matter of Keevins v Farmingdale UFSD, 304 AD2d 1013 [2003]).

To this end, "'the Board is vested with the discretion to assess the credibility of medical witnesses and its resolution of such issues is to be accorded great deference, particularly with respect to issues of causation' (Matter of Peterson v Suffolk County Police Dept., 6 AD3d 823 [2004]; see Matter of Joyce v United Food & Commercial Workers Local 342-50, 307 AD2d 552 [2003])" (Matter of Provenzano v Pepsi Cola Bottling Co., 30 AD3d 930 [2006]).

In the present case, no dispute exists that the claimant was in the course of his employment at the time of the accident. The carrier argues that his injuries were caused by an idiopathic stroke, and therefore did not arise out of his employment.

The claimant's treating physicians credibly testified that, based upon the CAT scan and MRI tests and the claimant's behavior following the accident, the type of injuries sustained by the claimant are due, at least in part, to a traumatic injury. Dr. Greenwald also credibly testified that the claimant could have sustained a traumatic brain injury without an apparent external head injury.

The opinion of the carrier's consultant, Dr. Head, was far less credible. Dr. Head admitted that he had not reviewed the CAT scan or MRI reports. Additionally, his opinion that the claimant suffered a stroke prior to the accident was based, in large part, upon his mistaken belief that the claimant was unconscious following the accident. In light of Dr. Head's limited understanding of the history of the accident, his failure to review the diagnostic testing reports, and the referral by the carrier which suggested the opinion desired by the carrier, the Full Board finds that Dr. Head's opinion is of little probative value and does not constitute substantial evidence to rebut the presumption created by WCL § 21.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant suffered an accident arising out of and in the course of his employment.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed May 25, 2010, is MODIFIED to find that Dr. Head's report is not precluded, but is in all other respects AFFIRMED.