The Full Board, at its meeting held on May 15, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on July 28, 2011.
The issue presented for Mandatory Full Board Review is whether decedent's death arose out of and in the course of his employment.
In a Notice of Decision filed October 6, 2010, the Workers' Compensation Law Judge (WCLJ) established the case for a compensable death.
The Board Panel majority affirmed the WCLJ's decision.
The dissenting Board Panel member would have disallowed the claim
The carrier filed an application for Mandatory Full Board Review on August 22, 2011.
The claimant filed a rebuttal on August 30, 2011.
Upon review, the Full Board votes to adopt the following findings and conclusions.
A form C-62 (Claim for Compensation in a Death Case) filed July 19, 2010, indicated that the decedent died when he suffered a fatal heart attack while performing his job duties as a groundskeeper at a golf course. He was 59 years old at the time of his death. A form C-7 was filed by the carrier controverting the claim on the basis that the decedent's death was not causally related to his activities at work.
The certificate of death lists the cause of the decedent's death as occlusive coronary artery disease with coronary artery thrombosis due to hypertensive and atherosclerotic cardiovascular disease.
The carrier's consultant, Dr. Sumner, performed a record review and issued a report dated August 2, 2010. Dr. Sumner opined that the decedent's death was not causally related to his activities at work. Rather, he attributed the decedent's death to a thrombus formation on top of a ruptured coronary artery plaque, which can occur anywhere and at any time. The report indicates that Dr. Sumner reviewed the following documents: progress notes written by S. Aziz, M.D., dated September 25, 2009, which according to Dr. Sumner indicated a long history of hypertension and hyperlipidemia; laboratory results on blood and urine specimens that appear to have been obtained on July 20, 2009; and the Certificate of Death signed by A. Philip, M.D. dated May 6, 2010. Dr. Sumner also indicated that a summary was provided to him by Coventry Health Care (Coventry), the entity who communicated with Dr. Sumner on behalf of the carrier, which stated that the "decedent sustained a fatal heart attack on May 5, 2010. He was apparently maintaining a golf course when he collapsed, having finished using a riding lawn mower. He had also used a tool with which he brushed grass remnants from the green." Dr. Sumner further observed that there "is no evidence or suggestion that [decedent] was doing anything very strenuous or different then [sic] his normal daily work activities."
At a hearing on August 4, 2010, the WCLJ stated on the record that there was "some question as to whether or not the history provided" by Coventry was accurate. The case was continued to September 2, 2010, for the carrier to produce two employer witnesses. However, at the September 2, 2010 hearing, the carrier's representative indicated that he had advised the two employer witnesses that the did not need to appear at the hearing because it was the carrier's position that Dr. Sumner's report had rebutted the presumption created by Workers' Compensation Law (WCL) § 21(1), that the claimant had failed to produce medical evidence of causal relationship, and therefore the carrier would rest on the record. The claimant's attorney argued that because the summary provided to Dr. Sumner by Coventry was not in the record, Dr. Sumner's report should be precluded. The WCLJ determined that the requirements of WCL § 137 for independent medical examinations did not apply to record reviews, such as the one performed by Dr. Sumner, and declined to preclude his report. The case was continued for the testimony of two employer witnesses.
At hearing held on September 28, 2010, testimony was taken of the decedent's supervisor at the time of his death and a vice-president of the employer.
The decedent's supervisor testified that he had worked with decedent for eleven years. On the morning of his death, the decedent arrived to work at 6:00 a.m. The witness did not see the decedent prior to his death on that morning. An equipment operator for the golf course found the decedent on the green at 8:30 a.m., and immediately went to get the decedent's supervisor. The supervisor saw the decedent "on his back on the third green and motionless, not breathing, no heart beating with eyes rolled back" (p. 3-4). The decedent's mower was running, and his dew whip was "next to him in his hand" (p. 4). A dew whip is a twelve foot fiberglass pole used to remove dew or debris off the putting green. A twisting motion of the upper body is required to use the dew whip. The dew whip requires walking and twisting all the way around the ground with no stopping. It can be used lightly or strenuously. Upon discovering the decedent's body, the supervisor noticed that the green was clean and the mower baskets were empty. The supervisor also testified that when filled with wet grass clippings, the mower bags weigh thirty pounds each, and that there were three in total that had to be dumped every two or three greens. If the decedent had followed his normal route, by 8:30 a.m., it is estimated that he would have clipped six or seven greens and emptied three thirty pound baskets of grass clippings, three times each. The supervisor could not testify for certain whether the decedent had actually used the dew whip. However, he noted that the green was clean which meant either the mower was not making a mess or the decedent had used the dew whip. The supervisor testified that for two weeks prior to his death, the decedent had complained to him of shortness of breath and heartburn. The supervisor further testified that an investigator (he was not sure from where, either "SIF or worker's comp") visited the golf course and took a statement from him regarding the decedent's activity at the time of his death.
The vice-president of the employer testified that he had no independent knowledge of the events surrounding the decedent's death, but received information from the decedent's supervisor. However, the vice-president was aware that every morning, it was the decedent's duty to whip the greens and make the surface smooth for putting. The vice-president further testified that he spoke with an investigator from SIF and explained to that individual the activity that the decedent was required to do. The vice-president did not remember signing a statement in connection with the investigator's visit.
By decision filed October 6, 2010, the WCLJ established the case for a compensable death, and directed SIF to pay funeral expenses, $50,000.00 to the decedent's Estate pursuant to WCL § 16(4b), $3,000.00 to the Uninsured Employer's Fund pursuant to WCL § 26-a, and $2,000.00 to the Vocational Rehabilitation Fund pursuant to WCL § 15(9).
SIF filed a copy of the decedent's autopsy report on November 5, 2010. The cause of death listed therein is consistent with the description listed in the certificate of death.
"[A] presumption of compensability arises when an unwitnessed or unexplained accident occurs during the course of employment" (Matter of MacDonald v Penske Logistics, 34 AD3d 967  [citations omitted]). Such a presumption, however, may be rebutted by the employer with substantial evidence to the contrary (see Matter of Boni-Phillips v Oliver, 56 AD3d 1073 ). 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, 62 AD3d 1200 ). If the employer does rebut the presumption, the burden of proving that a death is causally related to the employment shifts to the claimant (see Matter of Petrocelli v Sewanhaka Cent. School Dist., 54 AD3d 1143 )" (Matter of Puig v New York Armenian Home, Inc., 65 AD3d 1444 ).
It is undisputed that the decedent died while working and his death was unwitnessed. Accordingly, the claimant is entitled to the statutory presumption set forth in WCL § 21 that the decedent's death arose out of his employment. The burden is on the carrier to rebut the presumption with substantial evidence to the contrary.
In his report, Dr. Sumner indicated that a summary was provided to him by Coventry, which stated that the "decedent sustained a fatal heart attack on May 5, 2010. He was apparently maintaining a golf course when he collapsed, having finished using a riding lawn mower. He had also used a tool with which he brushed grass remnants from the green." While the summary provided to Dr. Sumner was not inconsistent with the testimony of decedent's supervisor, it appears that the summary did not convey a complete account of decedent's likely activities immediately prior to his death, such as the dumping of mower bags full of grass clippings and the manner in which the "dew whip" might have been used, as testified to in detail by claimant's supervisor. Thus, Dr. Sumner's assertion that there "is no evidence or suggestion that [decedent] was doing anything very strenuous" prior to his death is not accurate, and undermines his conclusion that decedent's heart attack was not related to his employment. Dr. Sumner's report, therefore, is insufficient to rebut the presumption created by WCL § 21.
However, the death certificate lists the decedent's cause of death as occlusive coronary artery disease with coronary artery thrombosis due to hypertensive and atherosclerotic cardiovascular disease. The death certificate alone is sufficient to rebut the presumption created by WCL § 21, thus shifting the burden to claimant to produce medical evidence that decedent's death was caused in part by his employment (see Matter of Schwartz v Hebrew Academy of Five Towns, 39 AD3d 1134, , lv denied 9 NY3d 807 ). To date, claimant has failed to provide any medical evidence of causal relationship.
Therefore, at the present time, there is insufficient evidence in the record to establish this claim for death benefits.
ACCORDINGLY, the WCLJ decision filed on October 6, 2010, is RESCINDED without prejudice and the case is hereby returned to the trial calendar with a direction that claimant submit medical evidence of causal relationship between decedent's heart attack and his employment within sixty (60) days.