Case # G0163303
Date of Accident: 08/04/2009
District Office: Hauppauge
Employer: King Kullen Grocery Company
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: KKG/09-0001251
Date of Filing of Decision: 10/10/2012
Claimant's Attorney: Frank A. Cetero, Esq.
Panel: Robert E. Beloten

The Full Board, at its meeting held on September 11, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on January 3, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the decedent's death was causally related to her employment.

In a reserved decision filed on April 28, 2011, the Workers' Compensation Law Judge (WCLJ) disallowed the claim for a work-related death.

In a Memorandum of Decision filed January 3, 2012, the Board Panel majority reversed the WCLJ, and established the claim for causally related death on August 4, 2009.

The dissenting Board Panel member would have affirmed the WCLJ and disallowed the claim.

The carrier filed an application for Mandatory Full Board Review on January 26, 2012.

No rebuttal was filed by the claimant.

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

FACTS

On August 27, 2009, the employer filed a C-2 to report the decedent's death on August 4, 2009. The employer reported that the decedent worked as a part-time cashier for the employer and had reported for work on August 4, 2009. She just started her shift on the cash register when she began to have chest pain. A couple of minutes later, she complained of blurred vision, and then she passed out. An ambulance was called and a customer administered CPR until the ambulance came. The decedent was taken to the hospital and she died.

On September 8, 2009, the carrier filed a C-7 and objected to the claim arguing that the decedent's death was not causally related to her employment, and that there was no accident arising out of and in the course of employment.

On December 18, 2009, the Board received a copy of the death certificate. The manner of death is noted as "pending investigation." Subsequently, the Board received a copy of the report of the decedent's autopsy signed by the deputy medical examiner, and dated December 16, 2009, according to which the cause of decedent's death was "hypertensive and atherosclerotic cardiovascular disease." The report listed diagnoses of hypertensive and atherosclerotic cardiovascular disease: biventricular hypertrophy with apical fibrosis in both ventricles and patchy fibrosis, microscopically focally still organizing, in the left ventricle free wall; no grossly significant atherosclerosis in the epicardial coronary arteries; dilatation of ascending and arch aspects of aorta with mild to moderate aortic atherosclerosis; acute chest pain followed by collapse (historical); extensive vigorous cardiopulmonary resuscitation attempts; acute aortic dissection; and mild bilateral vascular nephrosclerosis.

On September 23, 2010, the claimant (decedent's spouse) filed an RFA-1 to request a hearing to consider the establishment of the claim. Attached to the RFA-1 is a narrative report from Dr. Ploss, the claimant's consulting physician, who conducted a records review and noted that the decedent's job required her to pack groceries, and lift them to give to the customers. The decedent stood behind the counter to perform her work duties. Dr. Ploss noted that the decedent's physician's name is unknown "but apparently [she had been] taking anti-hypertensive medication." However, she had never complained of chest discomfort and had a negative ECG in the recent past. Dr. Ploss noted the autopsy report which confirmed that the decedent had a "pre-existing enlarged heart with biventricular hypertrophy secondary to atherosclerotic hypertensive heart disease." However, according to Dr. Ploss, the lifting and carrying of bags and groceries resulted in a "tear in her atherosclerotic thoracic aorta [and the] sudden tear and dissection caused by a dissecting aortic aneurysm was the immediate cause of her demise." Dr. Ploss opined that the decedent's "job activities that she was performing on 8/14/2009 [sic - 8/4/09] were the direct cause of her fatal dissecting aortic aneurysm."

Dr. Wein, the carrier's consulting physician, submitted an IME-4 report dated December 9, 2010, based on a review of decedent's medical records, and found "no causal relationship between the decedent's work and her sudden cardiac arrest. The episode could have occurred at any time, or at any place and does not appear to be work-related."

At the hearing held on March 4, 2011, the employer's bookkeeper testified that the decedent's job duties included ringing up groceries, bagging them, putting the bags in the carts, returning unpurchased items to the shelves at the end of the night and cleaning the registers. The bookkeeper testified that the decedent would stand the entire time she worked as a cashier. She testified that the decedent told her that earlier in the day on August 4, 2009, she had been running errands with her daughter. The decedent reported that she was not feeling well approximately 15 to 20 minutes into her shift on August 4, 2009. She testified that she saw the decedent almost every day and that the decedent did not complain of any physical ailments in the days preceding her death.

Dr. Wein testified by deposition on March 14, 2011, that based on the autopsy report, the decedent died of an acute aortic dissection, which is a ruptured aorta. The cause of the ruptured aorta was longstanding hypertension and cardiovascular disease. The decedent's death was not work-related because "[a]n acute aortic dissection is a very abrupt sudden event that usually occurs from longstanding disease of the aorta. Basically, the vessel, itself, becomes so diseased from the long disease process, and it just ultimately breaks" (Deposition Transcript, Dr. Wein, 3/14/11, pp. 8-9). Dr. Wein conceded that "if [a] person has longstanding [high] blood pressure and does anything strenuous, it may be the final act to tip it over" (id. at 10-11). Dr. Wein further conceded that activity, such as standing for between 30 minutes and an hour ringing up groceries, could have elevated the decedent's blood pressure, and that anything that raises the blood pressure can precipitate the final event.

Dr. Ploss testified by deposition on March 23, 2011, that the decedent's acute aortic aneurysm was causally related to the decedent's job activities. "Her sudden elevation of blood pressure, standing on her feet, lifting up packages, which caused increased pressure within the aorta, which caused a tear in the intima, which caused a dissection, and her eventual death" (Deposition Transcript, Dr. Ploss, 3/23/11, pg.12). According to Dr. Ploss, once the aorta ruptured, the decedent would have instantaneously felt severe pain, and it would have been a matter of minutes - rather than hours - before the decedent went into cardiac arrest. Dr. Ploss believes that the aorta rupture occurred due to work-related activities because the decedent was asymptomatic when she arrived at work, and someone with a ruptured aorta would clearly have exhibited symptoms. Dr. Ploss further explained that if the ruptured aorta had been triggered by activities prior to the decedent's scheduled shift, she would have been physically unable to even report to work. Dr. Ploss conceded that he based his history of events on August 4, 2009, on information he received from the decedent's mother. Dr. Ploss further conceded he did not know in what activities the decedent was involved prior to arriving at work on August 4, 2009.

The parties submitted written summations and in a reserved decision filed on April 28, 2011, the WCLJ disallowed the claim for causally related death, finding insufficient evidence "that the decedent's work activities on the day of her death in any way contributed to her cardiac arrest and demise." The WCLJ credited the opinion of Dr. Wein, "that the cardiac arrest episode - particularly the aortic aneurysm - 'could have occurred at any time, or at any place, and does not appear to be work-related.'"

LEGAL ANALYSIS

In its application for Mandatory Full Board Review filed on January 26, 2012, the carrier requests that the Board Panel majority decision be reversed, and that the WCLJ's decision to disallow the claim be reinstated. The carrier argues that the decedent's death is not causally related to her employment because there is no medical evidence to show that the decedent's work activities contributed to her cardiac arrest and demise.

Workers' Compensation Law (WCL) § 21(1) states that "it shall be presumed in the absence of substantial evidence to the contrary [t]hat the claim comes within the provision of this chapter."

"[The] presumption [of compensability] may be rebutted by the employer with substantial evidence to the contrary (see Matter of Boni-Phillips v Oliver, 56 AD3d 1073 [2008]). Moreover…rebuttal of the presumption does not require that the employer submit irrefutable proof excluding every other explanation as to potential causes of death (see Matter of Hanna v Able Body Labor, 62 AD3d 1200 [2009]). If the employer does rebut the presumption, the burden of proving that a death is causally related to the employment shifts back to claimant (see Matter of Petrocelli v Sewanhaka Cent. School Dist., 54 AD3d 1143 [2008])" (Matter of Puig v New York Armenian Home, Inc., 65 AD3d 1444 [2009]).

Here, the decedent's unexplained collapse at work gave rise to a presumption that her death arose out of her employment. However, the carrier presented the opinion of Dr. Wein that the cause of death was due to preexisting coronary artery disease and was not causally related to employment. The Full Board finds that this evidence rebuts the presumption of compensability, and shifts the burden to the claimant to come forward with evidence of causal relationship.

Here, Dr. Ploss testified that the decedent's work activities as a cashier, which would require her to stand on her feet and lift up packages, caused increased pressure within the aorta. However, Dr. Wein testified that the decedent's death was not work-related because the cause of the ruptured aorta was longstanding hypertension and cardiovascular disease.

In this case, Dr. Ploss credibly testified that the decedent's work activities were sufficient to precipitate the aortic rupture and subsequent death. While Dr. Wein did not agree that there was a causal relationship between the decedent's work activities and her death, Dr. Wein conceded during his testimony that "if [a] person has longstanding [high] blood pressure and does anything strenuous, it may be the final act to tip it over" (Deposition Transcript, Dr. Wein, 3/14/11, pp. 10-11).

Therefore, the Full Board finds that, based on the evidence of causal relationship submitted by the claimant, the preponderance of the evidence in the record supports a finding that the decedent's death was causally related to her work.

CONCLUSION

Accordingly, the WCLJ reserved decision filed April 28, 2011, is REVERSED. The case is established for a causally related death on August 4, 2009. No further action is planned by the Board at this time.