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 on November 2, 2011.
The issue presented for Mandatory Full Board Review is whether there is sufficient evidence in the record to establish the claim for a causally related myocardial infarction.
In a decision filed on October 18, 2010, the Workers' Compensation Law Judge (WCLJ) established the claim for a myocardial infarction that resulted from an accident on December 18, 2008.
In a Memorandum of Decision filed November 2, 2011, the Board Panel majority affirmed the WCLJ's decision, concluding that the credible medical evidence in the record supports the decision to establish the claim.
The dissenting Board Panel member would have found the claim is not compensable, as the claimant's myocardial infarction symptoms began well before he arrived at work.
In its application for Mandatory Full Board Review filed on December 1, 2011, the carrier requests that the decision of the Board Panel majority be rescinded and the claim disallowed.
In a rebuttal filed with the Board on December 30, 2011, the claimant requests that the opinion of the Board Panel majority be affirmed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On June 8, 2010, the Board received a Form C-3 (Employee Claim), in which the claimant reported that he had a myocardial infarction on December 18, 2008, while working as a police officer. The claimant alleged that he was climbing the stairs to see the chief, when he developed shortness of breath, and was treated at Lawrence Hospital. The carrier controverted the claim.
The record contains a discharge summary report from Lawrence Hospital (ECF Doc ID# 171421845) dated December 19, 2008, in which Dr. Salvate reported that the claimant "was working out with weights [on December 18, 2008] and felt chest pressure [with pressure radiated towards the left arm] at around 10:00 in the morning." The claimant further reported that "[t]he pain did not abate, and he then stopped lifting weights." The claimant then went home, ran some errands, and went to work at 2:00. At that time he mentioned his symptoms to the police chief and he was taken to the emergency room.
In a report dated May 28, 2010, Dr. DiRe, a cardiologist, stated that "on December 18, 2008, after working out in a gym felt some shortness of breath; the symptoms resolved. He proceeded to work that evening and developed severe shortness of breath with discomfort in his left arm," which prompted him to seek emergency treatment. Dr. DiRe indicated that claimant attempted to return to work, but found shift work, particularly at night, to be difficult due to excessive fatigue.
In a decision filed on July 19, 2010, the WCLJ noted that the case was on the expedited hearing calendar and that 12 NYCRR 300.38 was applicable; advised the carrier that if it wanted to have the claimant examined by its medical consultant on the issue of causally related myocardial infarction, the medical consultant's report was due before or at the next hearing; and found prima facie medical evidence of a myocardial infarction, pursuant to Dr. DiRe's May 28, 2010, report.
The next hearing was held on August 18, 2010, and as of that date, the Board had not received a report of the carrier's independent medical examination, although the examination had taken place two days previously. The WCLJ gave the carrier until the end of the hearing to produce the report, and stated that if not produced by then, it would be precluded, as the case is expedited.
At the hearing, the claimant testified that he arrived for his work shift on December 18, 2008, went downstairs (one flight) to the locker room to change into his uniform, and then went back upstairs (two flights) to see the chief. He had mild chest pain upon walking upstairs. He got to the chief's office and was conversing with him when he (the claimant) had a lot of trouble catching his breath, noticed that his left arm was limp, and then had further chest pain. The chief called a doctor and the claimant went to the hospital. He had not experienced pain earlier in the day, but had experienced brief (a few seconds) shortness of breath towards the end of a gym workout, which had consisted of lifting light weights and walking on the treadmill for approximately 25 to 30 minutes. The shortness of breath had resolved well before he came to work, which was about 6.50 hours after the gym workout. During those 6.50 hours, he felt no shortness of breath or chest pain. He had not previously been diagnosed with a heart condition.
At the hearing held on August 18, 2010, the chief of police testified that on December 18, 2008, the claimant told him that he had gone to the gym to work out in the morning and had not felt well, that he then came to work and changed into his uniform, and that, when he was walking up to the chief's office, he began to feel chest pains and shortness of breath again.
At the close of the testimony, the WCLJ precluded the independent medical examination report on the issue of casual relationship, inasmuch as the carrier did not produce the report by the end of the hearing. The carrier's representative then requested the opportunity to cross-examine Dr. DiRe, which was granted. The WCLJ's findings were set forth in a decision filed on August 23, 2010, which was affirmed in a Board Panel decision filed on March 29, 2011.
Dr. DiRe, claimant's treating cardiologist, testified on October 6, 2010, that he saw the claimant on May 28, 2010, at which time the claimant reported that on December 18, 2008, he had experienced some shortness of breath while working out in a gym, that he went to work later in the day, and that while climbing stairs at work he developed severe shortness of breath with discomfort in his left arm. Dr. DiRe diagnosed the claimant as status-post lateral myocardial infarction, with coronary artery disease and hyperlipoproteinemia. Based on the history reported by the claimant, Dr. DiRe opined that the claimant had the myocardial infarction while he was at work. The claimant had denied any past cardiac history, any family history of heart disease, and any smoking history. The claimant cannot return to high stress police work, but can perform desk work involving low physical and low emotional stress. During cross-examination, Dr. DiRe was provided the history as reported in Dr. Salvate's Transfer Summary report dated December 19, 2008, that the claimant felt chest pressure as early as 10:00 in the morning. However, Dr. DiRe did not change his opinion that the claimant's myocardial infarction occurred at work and not at some time earlier in the day. Dr. DiRe testified that he does not disagree that the claimant's symptoms started at the gym in the morning but he explained that "patients can have an unstable plaque that ruptures [and causes pain], but doesn't result in a heart attack [until] later on in the day" (Deposition, 10/6/10, p. 20). Dr. DiRe further explained that patients can have unstable angina for two to four days before a heart attack occurs.
A hearing was held on October 13, 2010, at which time the parties gave summations. Thereafter, the WCLJ entered his findings into the record outside of the presence of the parties. The WCLJ found that the claimant's myocardial infarction arose out of and in the course of his employment. The WCLJ found that Dr. DiRe's opinion was credible, and also noted that during the chief's testimony, he conceded that the claimant had reported chest pain and shortness of breath to him while on the job.
The WCLJ's findings were set forth in a decision filed on October 18, 2010, and on November 12, 2010, the carrier filed an application for administrative review.
In a decision filed on March 29, 2011, the Board Panel held its decision on the carrier's application in abeyance pending the examination of the claimant by an impartial specialist in the field of cardiology.
On June 6, 2011, the claimant was examined by Dr. Potenza, an impartial specialist in the field of cardiology. Dr. Potenza referenced the chain of events leading to the myocardial infarction as given by the claimant and as given in the Lawrence Hospital Center records. In his report, Dr. Potenza stated that the claimant had had coronary artery disease for a while prior to the occurrence of his myocardial infarction, and that a myocardial infarction would have eventually occurred, regardless, whether at work or not.
Dr. Potenza testified on August 30, 2011, that the claimant, upon arriving at work on the morning of December 18, 2008, and walking up the stairs, was in the process of having a myocardial infarction. The claimant was unstable at that time. Going up the stairs was "sort of the straw to break the camel's back." The onset of the claimant's symptoms had been caused by the "poor supply to his heart muscle and the obstructed coronary arteries."
"It is axiomatic that a claimant bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence" (Matter of Williams v Colgate Univ., 54 AD3d 1121  [citations omitted]). When the "medical opinion of claimant's treating physician [is] neither speculative nor a general expression of possibility and it 'signif[ies] a probability as to the underlying cause of the claimant's injury which is supported by a rational basis' (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 ," and when there is no conflicting medical evidence, the Board may not reject the treating physician's uncontroverted medical opinion on causation (Matter of Maye v Alton Mfg., Inc., 90 AD3d 1177 , quoting Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920  [additional internal citations omitted]).
Not every heart attack that occurs during work is compensable (see Currie v Davenport, 37 NY2d 472 ). 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 ). 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 ; Matter of La Fountain v La Fountain, 284 NY 729 )" (Burris v Lewis, 2 NY2d 323 ).
Here, both Dr. DiRe and Dr. Potenza testified that the claimant had a myocardial infarction that occurred while he was at work. Dr. Potenza also testified "that the claimant had been in the early stages of a myocardial infarction at the time that he arrived at work, and that ascending the stairs at work was the factor that ultimately caused the myocardial infarction to occur." Further, as noted herein, while Dr. DiRe testified that the claimant had symptoms related to the rupture of an unstable plaque while he was at the gym in the morning, the myocardial infarction did not occur until he was at work later in the day. Finally, since the carrier's consultant's report on causal relationship was precluded, there is no contrary medical evidence in the record.
Therefore, the Full Board finds that claimant's myocardial infarction arose out of and in the course of his employment.
Accordingly, the WCLJ decision filed October 18, 2010, is AFFIRMED. The case is continued.