The Full Board, at its meeting on January 15, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on April 12, 2012.
The issue presented for Mandatory Full Board Review is whether decedent's death arose out of or in the course of her employment.
In a decision filed on November 2, 2010, the Workers' Compensation Law Judge (WCLJ) found that there was no prima facie medical evidence of a causally related death and directed the claimant to produce such evidence.
The Board Panel majority reversed the WCLJ's decision and established the claim for a work-related death.
The dissenting Board Panel member would find that the group self-insured trust (GSIT) adequately rebutted the presumption of compensability contained in Workers' Compensation Law (WCL) § 21(1).
On May 10, 2012, the GSIT filed an application for Mandatory Full Board Review, arguing that it adequately rebutted the presumption contained in WCL § 21(1).
On May 25, 2012, the claimant filed a rebuttal, asserting that that GSIT failed to produce substantial evidence to the contrary to rebut the presumption afforded claimants by WCL § 21(1).
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant filed a C-62 (Claim for Compensation in a Death Case), on May 26, 2010, indicating that on March 10, 2010, the decedent, then a 63 year old child care worker, had a heart attack at work during a training demonstration.
On June 2, 2010, the GSIT filed a C-7 (Notice that Right to Compensation is Controverted) controverting the claim. The GSIT described the injury as "the claimant fell to the floor causing death." The GSIT listed six employer witnesses who had information supporting the issues raised in the C-7.
The GSIT's pre-hearing conference statement filed on June 2, 2010, describes the accident as "the claimant, a child care worker, was training the staff in the gym and fell resulting in her death."
On June 4, 2010, the GSIT filed a C-2 (Employer's Report of Work-Related Accident/Occupational Disease) indicating that the decedent was taken via ambulance to St. Luke's Hospital. It further indicates that witness statements were taken from two employer witnesses who observed the accident. However, the witness statements do not appear in the Board file.
A St. Luke's Emergency Department record dated March 10, 2010, indicates that the decedent was brought to the emergency room via ambulance in cardiac arrest and was pronounced dead. The report contained a history that decedent had "worked double shift, had training session at facility today, when she told co-workers that she felt dizzy and collapsed." The report was electronically signed by Dr. Leifer, an emergency medicine physician.
The Certificate of Death dated March 15, 2010, was filed with the Board on May 25, 2010, and does not list a specific cause of death. In the certification portion of the certificate, electronically signed by Dr. Leifer, it states: "I certify that death occurred, at the time, date and place indicated and that to the best of my knowledge traumatic injury or poisoning DID NOT play any part in causing death, and that death did not occur in any unusual manner and was due entirely to NATURAL CAUSES…" No autopsy report appears in the Board file.
Dr. Leifer testified by deposition on October 12, 2010, that the decedent was dead on arrival at the hospital on March 10, 2010. The doctor performed a very brief examination. The cause of death was provided by the ambulance as ventricular fibrillation. The doctor did not know what caused the ventricular fibrillation. He further testified that some things that might cause ventricular fibrillation are electrolyte abnormalities, myocardial ischemia, and exsanguination (bleeding to death).
No other witnesses testified.
In a Notice of Decision filed on November 2, 2010, the WCLJ found that based upon the testimony of Dr. Leifer, there is no prima facie evidence of a causally related death. The WCLJ directed the claimant to produce prima facie medical evidence of a causally related death and closed the case.
"[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's fatal heart attack occurred while she was working. The employer listed several witnesses in its form C-7. However, none of them were produced to testify. The form C-2 indicated that witness statements existed. However, these statements were not produced either. Due to the absence of this evidence, the decedent's death is unexplained. Accordingly, the claimant is entitled to the statutory presumption set forth in WCL § 21(1) that the decedent's death arose out of her employment. The burden is on the carrier to rebut the presumption with substantial evidence to the contrary.
The GSIT relies on Matter of Hanna v Able Body Labor (26 AD3d 1200 ), to support its position that the certificate of death herein adequately rebutted the presumption provided by WCL § 21. However the facts in Hanna (26 AD3d 1200 ) are clearly distinguishable from the facts herein in that the certificate of death and the autopsy report in Hanna listed the cause of death as "cardiac arrhythmia due to atherosclerotic coronary artery disease." Here, the death certificate is silent as to the decedent's specific cause of death and there is no autopsy report in the file. Dr. Leifert testified that the decedent's manner of death was ventricular fibrillation, but did not know what caused the decedent to experience the ventricular fibrillation.
The GSIT offered no other evidence, medical or otherwise, to suggest that the decedent's death was caused by something unrelated to her work (see Matter of Koenig v State Insurance Fund, 4 AD3d 671 ).
Based upon a review of the record and the preponderance of the credible evidence, the Full Board finds that the GSIT failed to adequately rebut the presumption afforded claimant pursuant to WCL § 21(1).
Accordingly, the WCLJ decision filed on November 2, 2011, is REVERSED, and the following finding is hereby made: claimant is afforded the presumption of compensability contained in WCL § 21(1); the GSIT failed to rebut such presumption; and as a result thereof, the claim is established for a work-related death. The case is continued for proper awards.