The Full Board, at its meeting held on February 26, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on March 26, 2012.
The issue presented for Mandatory Full Board Review is whether there is sufficient evidence to find that the claimant had an accident arising out of and in the course of her employment.
The Workers' Compensation Law Judge (WCLJ) disallowed the claim, finding that the accident did not arise out of and in the course of the claimant's employment.
The Board Panel majority affirmed the WCLJ's decision.
The dissenting Board Panel member would have found that the claimant's accident arose out of and in the course of employment.
In their application for Mandatory Full Board Review filed on April 10, 2012, the attorney for the claimant argues that the claim should be found to be compensable. The claimant argues that the WCLJ and the Board Panel majority erroneously "failed to recognize that hitting the wall before falling to the ground constituted a risk incident to the claimant's employment."
In a rebuttal filed with the Board on May 7, 2012, the carrier argues that the Board Panel majority decision is supported by substantial evidence. The carrier notes that while Workers' Compensation Law (WCL) § 21 provides a presumption of compensability, the presumption may be rebutted by substantial evidence to the contrary. The carrier argues that the Board Panel majority correctly found that the evidence in this record successfully rebuts the presumption.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This case involves a controverted claim regarding an alleged January 4, 2010, work accident.
On February 19, 2010, the claimant filed a C-3 form to report that she was injured on January 4, 2010, while working as a mental health aide. The claimant reported that the injury occurred as she was walking out of the ladies room. She explained that she hit her head on the wall, and fell to the floor, injuring her neck and back.
It is undisputed that the claimant was pregnant at the time of the accident.
Dr. Hedrych, the claimant's physician, testified on August 17, 2010, that he first examined the claimant on January 11, 2010. He diagnosed the claimant with causally related post-concussion syndrome, cervical spine derangement, cervical radiculopathy and/ or cervical myelopathy, dorsal spine sprain/strain, and lumbosacral spine derangement with lumbar radiculopathy. Dr. Hedrych further testified that "the chances are that it was her pregnancy and the effects of her pregnancy…She had just I believe gotten up and was exiting the bathroom, and probably this was the basis of what's known as vasovagal reaction with blood pooling in the lower extremities to a greater degree given the pregnancy."
Dr. Wilson, the carrier's consulting physician, examined the claimant on April 15, 2010. Dr. Wilson testified on September 13, 2010, that he found no causally related orthopedic disability because there was no work injury. He suspects that the claimant passed out due to her pregnancy. On cross-examination, Dr. Wilson testified that the claimant's work activities, given her pregnancy, would not cause the claimant to pass out. He testified that her fall was because of her pregnancy.
At the hearing held on October 7, 2010, the claimant, a mental health therapy aide, testified that, while coming out of the bathroom at work, she fell to the floor, hitting her head on a wall in the process. She lost consciousness. When she awoke, a co-worker and EMS personnel were around her. She does not know what caused her to fall. She was taken to Harlem Hospital. She was six months pregnant at the time of the incident. On cross-examination, she testified that she did not remember if she felt dizzy prior to the fall. She did not trip over anything. She denied that she was told by a co-worker that she looked poorly and should go home prior to her fall. She found out that she had an iron deficiency during her pregnancy and was taking prenatal vitamins.
A co-worker of the claimant testified on October 7, 2010, that, about an hour prior to the claimant's fall, a ward nurse called the nursing office to inform them that the claimant was throwing up and feeling sick. The co-worker asked the ward nurse to speak to the claimant and ask her if she wanted to go home, or to her doctor, but the claimant said no. The co-worker did not see the claimant on that date prior to her fall. The co-worker did not witness the fall.
The morning shift nurse testified on October 7, 2010, that she saw the claimant prior to her fall on the accident date. The claimant came in after 7:30 and was not well. She was pale and complaining of not feeling well. They tried to keep a cool fan on her and advised her to go home. The morning shift nurse did not witness the fall.
At the conclusion of the hearing on October 7, 2010, the parties provided oral summations, and the WCLJ made a decision to disallow the claim.
In a decision filed on October 13, 2010, the WCLJ found no accident arising out of and in the course of employment because the claimant blacked out and fell at work due to a condition not connected to her work activity. The WCLJ distinguished the claim from such precedents as Matter of Connelly v Samaritan Hospital, 259 NY 137 (1932) because in this case, there was no "special hazard" involved.
"'[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 ; 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 )" (Matter of Keevins v Farmingdale UFSD, 304 AD2d 1013 ).
Where, as here, the claimant's fall is precipitated by a reason personal to the employee, the Board must then consider whether the claimant's fall was impeded by the work environment. If the Board determines that the claimant's fall was unimpeded by the work environment, the claim is not compensable (Matter of Dasaro v Ford Motor Co., 280 App Div 266 ). In Dasaro, the claimant was injured at work after he suffered an epileptic seizure and fell. The Court agreed with the Board's decision to disallow the claim, finding that "the ground below is a universal and normal boundary on one side of life. In any epileptic fit anywhere the ground or a floor would end the fall" (id.).
However, a claimant is entitled to compensation for accidental injuries from "any risk incident to the employment, whether that risk be great or small, usual or extraordinary" (Matter of Connelly v Samaritan Hosp., 259 NY 137 ). In Connelly, claimant struck her head and chest on a table when a cardiac condition caused her to fall at work. The Court set forth the test as follows:
"If, except for the employment, the fall though due to a cause not related to the employment, would not have carried the consequences it did, then causal connection is established between injury and employment, and the accidental injury arose out of the employment. The employment has subjected the workman to a special danger which in fact resulted in injury" (id.).
Therefore, any interference with a fall, whether by a fellow employee (Matter of Upper East Side Surgical LLC, 2010 NY Wrk Comp G0006365), by objects such as a table (Connelly, 259 NY 137 ), or by the employer's building itself (Matter of Johnson City School District, 2010 NY Wrk Comp G0083845), should be considered a risk incident to employment, and therefore compensable.
Here, the claimant suffered a vasovagal reaction due to her pregnancy, causing her to pass out and fall as she exited the bathroom at work. While falling, claimant struck her head on a wall, which caused a concussion and spine injuries. The wall was part of claimant's working environment, and was a factor in claimant's injury. The injury is therefore covered by the principle established by Connelly. In the "combination of circumstances out of which the accidental injury arose", the wall's interference with claimant's fall was one of the "co-operating causes which produced the injury" (id.).
Therefore, the Full Board finds that the claimant had an accident arising out of and in the course of her employment.
ACCORDINGLY, the WCLJ decision filed October 13, 2010, is RESCINDED, and the case is restored for further development of the record of the remaining issues. The claimant had an accident arising out of and in the course of her employment. The case is herein referred to the hearing calendar for the completion of the record. The case is continued.