Case # G0252799
Date of Accident: 01/26/2010
District Office: NYC
Employer: Elizabeth Rosenstiel Kabler
Carrier: Federal Insurance Company
Carrier ID No.: W080006
Carrier Case No.:
Date of Filing of Decision: 01/10/2013
Claimant's Attorney: Alan M. Cass & Associates
Panel: Robert E. Beloten

The Full Board, at its meeting on November 14, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on January 6, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant's accident arose out of the course of employment.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim, finding that claimant's injury was idiopathic.

The Board Panel majority reversed and established this claim.

The dissenting Board Panel member would restore the case to the trial calendar for further development of the record regarding medical evidence.

On February 2, 2012, the carrier filed an application for Mandatory Full Board Review, arguing that the record contains sufficient evidence to support a finding that the accident was solely caused by alcohol intoxication and thus non-compensable. Alternatively, the carrier requests that the case be restored to the trial calendar for further development of the record regarding medical evidence.

No rebuttal was filed.

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

FACTS

A C-3 (Employee Claim) was filed by the claimant, then a 67 year-old personal assistant, on April 1, 2010, wherein she alleged that she sustained injuries while working on January 26, 2010, when she tripped over a handbag and fell. The carrier controverted the claim on the grounds that the claimant's fall was idiopathic. The carrier specifically disputed the allegation that she tripped over a handbag, causing her fall.

At the hearing held on December 13, 2010, the claimant testified that she worked as a personal assistant to the employer. On January 26, 2010, the claimant and her employer were at a store at approximately 12:00 p.m. While her employer was in the dressing room, the claimant accidentally tripped over the strap of her handbag, causing her to fall to the floor. She injured her right ankle during this fall. The claimant stated that the incident was not witnessed. She got herself to a chair, where she sat for nearly ten minutes because she felt shaky. The employer called to the claimant to get her handbag. The claimant testified that she felt dizzy and weak as she stood up. Her right ankle twisted, causing her to fall to the floor. She was taken by ambulance to a hospital. The claimant acknowledged that she consumed two glasses of wine at approximately 1:00 a.m. and ate a banana for breakfast. She denied being intoxicated when the accident occurred. The claimant stated that she is on medication for high blood pressure and that she took her medication on the morning of the accident.

At the hearing on February 8, 2011, the claimant's employer testified that on December 12, 2009, she had hired the claimant to be her personal assistant. On the morning of January 26, 2010, the claimant accompanied her to a doctor's appointment, before going to a store for a dress alteration. The employer was in a dressing room trying on a dress when, while conversing with the claimant about the dress, she noticed that the claimant's speech was slowing down, the claimant began to slur her words. Claimant's legs then gave out; she fainted and landed on her buttocks. The claimant went in and out of consciousness, and then became incontinent. The employer called the claimant's daughter-in-law and notified her of what happened and that an ambulance had been called. The claimant was not engaged in any activity when she fell. Trying on the dress took approximately three to five minutes, and the claimant was within sight of the employer the entire time. At no time did the employer ask the claimant to take her handbag, and she did not observe the claimant trip over the strap of her own handbag. The employer testified that the claimant stated that she had not taken her high blood pressure medication on the morning of the accident. In addition, the employer testified that during the short time that the claimant worked for her, the claimant was abnormally slow in completing her tasks and sometimes her speech was impaired.

An employee of the store where the claimant fainted also testified at the hearing held on February 8, 2011. The store employee testified that the claimant had come into his store earlier in the morning to drop off, for alteration, a dress that belonged to the employer. Later that day, the employer came to the store to try on the dress accompanied by the claimant. The store employee was near the employer and the claimant during the time they were in the store. The store employee stated that he did not observe the claimant trip over a handbag. He recalled the employer yelling that the claimant was fainting. In response to this, he turned around to see the claimant black out and fall to the ground. He called 911 and assisted the claimant until the paramedics arrived.

Dr. Brown testified on December 22, 2010, that he began treating the claimant for a back injury on August 27, 2010. The claimant provided him with a history that she had injured herself atwork on January 26, 2010. The claimant related that she tripped on the strap of a handbag, when she was called to be by her employer's side. Dr. Brown did not receive any other history and was not aware that the claimant might have fallen twice on January 26, 2010. Dr. Brown was not aware that the claimant might have been intoxicated on January 26, 2010. He stated that he is not sufficiently qualified to discuss the effects of intoxication or the causes of syncope. Dr. Brown diagnosed the claimant with a causally related L4 compression fracture based on the history that he received.

Dr. Cassano testified on January 11, 2011, that she has been the claimant's primary care physician since February 2002. She recalled that the claimant was treated on February 2, 2010 for pain. The claimant advised the doctor that she had been drinking and taking aspirin. The doctor received a history that the claimant fell at work, without receiving any further information. Dr. Cassano acknowledged that the claimant's blood alcohol content, as recorded by the hospital, would show that the claimant was intoxicated at the time of the accident. The claimant came into Dr. Cassano's office on February 2, 2010, with complaints of low back pain and groin pain. The claimant had no complaints about any other part of the body. Dr. Cassano had been treating the claimant for hypertension. Dr. Cassano testified that the claimant had a syncopal episode on August 4, 2009 that required hospitalization at Bellevue, where she was diagnosed to have had a vasovagal attack (neurocardiogenic syncope) due to a fluctuation in her blood pressure.

The carrier's consultant, Dr. Brisman, examined the claimant on December 6, 2010. Cross-examination of Dr. Brisman was not requested. In his report dated December 8, 2010, from the independent medical examination, Dr. Brisman stated that the events of January 26, 2010 were the probable cause of some of the claimant's present complaints regarding low back pain and twinges associated with certain movements. Dr. Brisman also attributed her condition to a number of conditions that were present prior to the claimant's accident, including a preexisting right ankle problem that probably contributed to her imbalance and falls. The events of January 26, 2010 were described to the doctor by the claimant as tripping over the strap of a handbag and then falling again due to a weak ankle. Nowhere in Dr. Brisman's does it state that the claimant experienced a syncopal episode. Dr. Brisman's report lists the medical records that he reviewed. That list does not contain the hospital records from Lenox Hospital.

The records from Lenox Hill Hospital (filed with the Board on December 13, 2010) for treatment rendered on January 26, 2010 show that the claimant was transported to the hospital by ambulance after passing out at work. The claimant was noted to have been intoxicated on alcohol. A blood alcohol content test taken at approximately 1:30 p.m. showed 233.9 milligrams of alcohol per deciliter (.234 bac). The triage assessment was that the claimant was noted to be awake, alert, oriented, and cooperative with an anxious affect. An hour later, the claimant was noted to be calm and speaking coherently. It was noted in the records that claimant came to the emergency room due to an "episode of syncope and fainted in a store. […] Pt denies drinking." The claimant was quoted as stating "I did not eat breakfast this morning and I very stressed with work. This has only happened to me once before in July." The progress notes indicate that the claimant reported no back pain and was not in any acute distress. The diagnosis from the emergency department doctor was "Syncope, Alcohol (ETOH) abuse, and Hypotension."

By a decision filed on February 11, 2011, the WCLJ found that the injury was the result of an idiopathic fall that did not arise out of the course of employment and disallowed the claim.

LEGAL ANALYSIS

Claimant testified that she tripped over the strap of a handbag at work. However, this history does not appear in the record until it was recorded on the C-3 form. Neither the emergency room personnel, nor Dr. Cassano, recorded a history that included tripping on a handbag strap. Further, the employer and the store employee testified that they were able to observe the claimant the whole time that the employer was in the dressing room and that they did not see the claimant trip over a handbag strap. Accordingly, the preponderance of the credible evidence in the record supports a finding that claimant did not fall as the result of tripping over the strap of a handbag and more likely that the claimant fell because she fainted. Moreover, there is no indication that the claimant twisted her ankle as she described in her testimony.

Here, it is undisputed that claimant fell due to a syncopal episode and such episode occurred while she was working. WCL § 21(1) creates a presumption in favor of the claimant that the accident arose out of the course of employment as the accident was unexplainable. The carrier, however, has an opportunity to rebut such a presumption with medical or other evidence. To overcome this presumption, the carrier must produce evidence that shows the syncopal episode was due to unrelated factors (Matter of Cartwright v Onondaga News Agency, 283 AD2d 837 [2001]; Matter of Grimaldi v ShopRite Big Y, 90 AD2d [1982]).

The claimant's inaccurate and incomplete history of the incident has obscured the record. The carrier was not given a fair opportunity to evaluate the evidence as Dr. Brisman was given an inaccurate and incomplete history of the events of January 26, 2010. Dr. Brisman was unaware that the claimant had fainted; nor was Dr. Brisman privy to the hospital records from Lenox Hospital, in effect, the only medical records that describe the events of January 26, 2010, as a syncopal episode, because such report was not filed with Board until after Dr. Brisman examined the claimant. Accordingly, Dr. Brisman did not have an opportunity to comprehensively evaluate this claim so as to make a properly informed opinion with respect to causal relationship. The claimant's attending physicians were not in receipt of the Lenox Hospital report either. They based their opinions on causal relationship on an inaccurate history as well.

However, notwithstanding the inaccurate history provided by the clamant to her treating physicians and to the carrier's consultant, the need to return this case for further development of the record is unnecessary as there is substantial evidence in the record to support a finding that the claimant's syncopal episode was the result of alcohol intoxication.

WCL § 10(1) provides that "there shall be no liability for compensation…when the injury has been solely occasioned by intoxication from alcohol or a controlled substance of the injured employee while on duty." WCL § 21(4) creates a rebuttable presumption that "the injury did not result solely from the intoxication of the injured employee while on duty."

The contemporaneous medical records from Lenox Hospital clearly indicate that the claimant was intoxicated with a blood alcohol content of .234. The history in the Lenox Hospital report indicates that the claimant had a syncopal episode and fainting spell in a store. The hospital record described the claimant's present illness as "67 yo F to ER c/o syncope. pt was ETOH intox this am, was at work, and passed out. No cp no sob no abd. pain, c/o feeling intox. no other c/o." The diagnosis from the hospital was Syncope, Alcohol (ETOH) abuse, and Hypotension. In addition, the claimant's employer indicated that the claimant was slurring her words on the morning of the incident and had noticed on other occasions where the claimant's speech was impaired. Despite the claimant's testimony that she consumed just two glasses of wine at 1:00 a.m., the claimant admitted to the hospital personnel that she felt intoxicated. Moreover, both the employer and the store employee described the claimant's fall as a syncopal episode.

In Matter of Smith v LSI Lighting Services (291 AD2d 606 [2002], lv denied, 98 NY2d 603 [2002]), the Court upheld the Board where it found that the presumption in favor of the employee was overcome in that the employee's injury was solely due to his intoxication. There the employee suddenly started tilting to the side and fell three or four feet to the floor. There was one eyewitness to the fall. In addition to the evidence of the employee's blood alcohol content consisting of 0.218, the medical records included the report of a physician who examined the employee upon his admission to the hospital, and concluded that the employee was intoxicated. The medical records also included references to the claimant's recent history of alcohol abuse and the diagnosis of his condition included alcoholism. The Court indicated that there was ample evidence from which the Board could conclude that the claimant was intoxicated given the evidence of intoxication and the description of the fall provided by the eyewitness.

Similarly, here, as indicated above, the records from Lenox Hospital and the description of the fall given by both the claimant's employer and the store employee are reasonably sufficient for the Board to conclude that the claimant's fall occurred as a result of her intoxication. There is no evidence of any cause for the claimant's fall other than her intoxication and, moreover, the Board is not obligated to "expressly negate all the alternate hypotheses which might be considered as possible contributory factors" (Matter of Harvey v Allied Chem. Corp., 51 AD2d 1066 [1976], lv denied 39 NY2d 707 [1976]).

Based upon a review of the record and the preponderance of the credible evidence, the Full Board finds that the claimant's injury was solely occasioned by intoxication from alcohol of the claimant while on duty.

CONCLUSION

Accordingly, the WCLJ decision filed on February 11, 2011, is MODIFIED to find that the claim is barred by WCL § 10(1) as the claimant's injury was solely occasioned by intoxication from alcohol of the claimant while on duty. The claim is disallowed.