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Case # G0321457
Date of Accident: 06/26/2010
District Office: NYC
Employer: Garb Services Corp
Carrier: Hereford Insurance Company
Carrier ID No.: W106884
Carrier Case No.: OR300662
Date of Filing of Decision: 07/26/2013
Claimant's Attorney: Caruso, Spillane, Leighton, Contrastano, Ulaner & Savi, PC
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on July 16, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on October 26, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether claimant's subarachnoid hemorrhage secondary to an aneurysm was causally related to his employment.

The Workers' Compensation Law Judge (WCLJ) found that the claimant had a work-related injury involving a subarachnoid hemorrhage secondary to aneurysm.

The Board Panel majority affirmed the WCLJ's decision.

The dissenting Board Panel member found that the Workers' Compensation Law § 21 presumptions were overcome by the carrier, and that the claimant did not suffer an accident arising out of and in the course of his employment.

On November 26, 2012, the carrier filed an application for Mandatory Full Board Review, arguing that the claimant did not sustain an accident arising out of and in the course of his employment.

No rebuttal was filed.

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

FACTS

This is a controverted claim for a subarachnoid hemorrhage secondary to an aneurysm, resulting from a motor vehicle accident which occurred on June 26, 2010, when the taxi that the claimant was driving was rear-ended by another vehicle.

A Police Accident Report (MVA report) dated June 27, 2010, notes that the other driver involved in the accident stated that the claimant "abruptly hit his brakes" causing the other driver to hit the rear of the claimant's vehicle.

A FDNY Pre-hospital Care Report form dated June 26, 2010, indicates that the claimant was unresponsive when the paramedics arrived and that the passenger in the claimant's taxi stated that the claimant pulled the taxi over, got out of the taxi, fell to the floor and looked like he was having a seizure. The report makes no mention of a motor vehicle accident.

A C-4 (Doctor's Initial Report) completed by Bellevue Hospital states the following under Section "E," "History": "patient alleges that he was driving a cab and pulled over, got out of the cab and fell to the ground." The report makes no mention of a motor vehicle accident.

A medical report from Bellevue Hospital, dated July 26, 2010, indicates that the claimant was admitted on June 26, 2010, and discharged on July 28, 2010. The report further indicates that the claimant was admitted for cognitive and functional deficits due to a subarachnoid hemorrhage and aneurysm rupture. The report states that the claimant was unable to recollect the events leading up to his hospitalization reliably. The report further stated that the claimant initially presented to Woodhull Hospital with a report of seizures after he got out of the cab that he was driving. The report makes no mention of a motor vehicle accident.

At a hearing on January 26, 2011, the claimant testified that on June 26, 2010, he was driving his taxi when he was rear-ended by another vehicle. The claimant indicated that he hurt his head in the accident and that he believes he was taken to the hospital by ambulance. The claimant also stated that his employer was notified the same day that he had an accident. The claimant stated that prior to this motor vehicle accident he did not have any injuries to his head. On cross-examination the claimant stated that he did not have a passenger in his taxi at the time of the accident, and later confirmed that he did not remember that he had a passenger in his car at the time of the accident. Claimant further acknowledged that he did not recall if he struck his head as a result of the collision.

In a medical narrative dated October 7, 2010, the claimant's treating physician, Dr. Huish, states that "the etiology of the patient's issue is somewhat unclear." In a medical narrative dated November 12, 2010, Dr. Huish notes that the claimant "apparently had a work-related car accident and had an aneurysm rupture." In a C-4 dated December 7, 2010, Dr. Huish finds that the motor vehicle accident was the competent medical cause of the claimant's injury.

In a Report of Independent Medical Examination (IME), dated January 24, 2011, the carrier's consultant, Dr. Desrouleaux, noted that the claimant reported that he was rear-ended while driving a taxi and that he injured his head as a result. However, Dr. Desrouleaux further noted that the medical records indicate that the claimant fell ill while driving, pulled over and had a seizure, and that the claimant sustained a brain aneurysm. Dr. Desrouleaux diagnosed the claimant as "status post head injury secondary to seizure causing brain aneurism," and noted that "there is evidence of a temporary mild disability."

During a deposition on June 9, 2011, Dr. Huish, testified in accordance with his medical reports. Dr. Huish noted that the claimant told him that he had no specific recollection of the accident. The doctor stated that, in his opinion and based on the records that he reviewed from Bellevue Hospital and the MVA report:

it appears it was the accident that was the competent producing cause of the events that followed, which would include the rupture of an aneurysm, which in all likelihood the patient had prior to being involved in the accident, that was aggravated or injured at the time of the collision. That would be the most likely scenario based on the records that I reviewed.

Dr. Huish further testified that prior to an aneurysm rupturing, a person may experience headaches, dizziness or generally not feel well if the aneurysm is leaking. The doctor also testified that once an aneurysm ruptures, a person may experience loss of consciousness or seizures. Dr. Huish testified that trauma to the head or a rise in blood pressure could cause an aneurysm to rupture. Dr. Huish indicated that the claimant has a 50% disability and restricted him from driving, heavy lifting, carrying, pushing and pulling. On cross-examination, Dr. Huish conceded that ruptured aneurysms can occur spontaneously, without trauma, and that the claimant initially had a "poor recollection of events."

During a deposition on June 2, 2011, Dr. Desrouleaux, testified in accordance with his IME report. Dr. Desrouleaux indicated that based on the records he reviewed he determined that the claimant was driving a car, became ill, pulled the car over and had a seizure, during which he may have lost consciousness. The doctor indicated that the claimant has sustained some brain damage due to the ruptured aneurysm. However, Dr. Desrouleaux indicated that the claimant's aneurysm pre-existed the motor vehicle accident. Dr. Desrouleaux opined that the rupture of the claimant's aneurysm was not caused by the motor vehicle accident. Dr. Desrouleaux noted that there was no evidence in the record of a cerebral contusion, and stated that "a trauma to the brain can cause an aneurysm to rupture, but you are going to have severe damage of the tissue of the brain around the site of the aneurysm for that aneurysm to rupture" (Desrouleaux Deposition, 6/2/11, pg. 11). On cross-examination, Dr. Desrouleaux testified that if an aneurysm rupture is not spontaneous, the two main factors that typically cause an aneurysm to rupture are an increase in blood pressure or a severe head injury.

In a Notice of Decision filed on July 20, 2011, the WCLJ found that the claimant had a work-related injury involving a subarachnoid hemorrhage secondary to aneurysm.

LEGAL ANALYSIS

Accident

"'[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 [1985]; 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 [1980])" (Matter of Keevins v Farmingdale UFSD, 304 AD2d 1013 [2003]).

An accident arises out of employment if the injury flows as a natural consequence of the employee's duties (Matter of Lemon v New York City Tr. Auth., 72 NY2d 324 [1988]). An accident occurs during the course of employment if the employee was doing the work for which he is employed (id.). The Board has wide latitude in determining whether an accidental injury occurred (Matter of Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129 [1994]).

In the present case, the record contains a MVA report, which was completed by a responding police officer and documents the occurrence of an accident. In addition, the MVA report documents that a statement was taken from the driver of the vehicle which rear-ended the taxi that the claimant was driving. Specifically, the accident report notes that the other driver involved stated that the claimant "abruptly hit his brakes" causing the other driver to hit the rear of the claimant's vehicle. Accordingly, a preponderance of the evidence in the record supports a finding that the claimant sustained an accident arising out of and in the course of his employment.

Causal Relationship

"It [i]s claimant's burden to establish a causal relationship between his employment and his disability by competent medical evidence (see Matter of Sale v Helmsley-Spear, Inc., 6 AD3d 999 [2004]; Matter of Keeley v Jamestown City School Dist., 295 AD2d 876 [2002]). To this end, a medical opinion on the issue of causation must signify 'a probability as to the underlying cause' of the claimant's injury which is supported by a rational basis (Matter of Paradise v Goulds Pump, 13 AD3d 764 [2004]; see Matter of Van Patten v Quandt's Wholesale Distribs., 198 AD2d 539 [1993]).'[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship' (Matter of Ayala v DRE Maintenance Corp., 238 AD2d 674 [1997], affd 90 NY2d 914 [1997]; see Matter of Zehr v Jefferson Rehab. Ctr., 17 AD3d 811 [2005])" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 [2008]).

With respect to causal relationship, Dr. Huish credibly testified that based on his review of the medical records from Bellevue Hospital and the MVA report, the motor vehicle accident "appears" to be "the competent producing cause of the events that followed, including the rupture of claimant's aneurysm." Dr. Huish testified that in addition to a spontaneous rupture, trauma to the head or a rise in blood pressure could cause an aneurysm to rupture.

Dr. Desrouleaux opined that in order for the accident to have caused the rupture of the claimant's aneurysm there should have also been evidence of a cerebral contusion. Dr. Desrouleaux concluded that the rupture of the claimant's aneurysm was not caused by the claimant's accident because there was no mention of a cerebral contusion in the claimant's medical records; however, during his deposition, Dr. Desrouleaux did acknowledge that in addition to head trauma, a rise in blood pressure could cause an aneurysm to rupture. Hence, Dr. Desrouleaux opinion is not inconsistent with Dr. Huish's opinion, that the car accident caused claimant's aneurysm to rupture.

Therefore, the Full Board finds, based upon a preponderance of the evidence, that the claimant had a work-related injury involving a subarachnoid hemorrhage secondary to aneurysm.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on July 20, 2011, is AFFIRMED. No further action is planned by the Board at this time