The Full Board, at its meeting held on June 18, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on September 6, 2012.
The issue presented for Mandatory Full Board Review is whether the claimant's stroke on August 22, 2007, was due to occupational stress.
In a decision filed on January 17, 2012, the Workers' Compensation Law Judge (WCLJ) disallowed the claim.
In a Memorandum of Decision filed on September 6, 2012, the Board Panel majority reversed and established a claim for a work-related stroke.
The dissenting Board Panel member would have found that the WCLJ's decision should be affirmed and the claim should be disallowed because there is insufficient credible evidence to find that the claimant's stroke was caused by occupational stress.
In its application for Mandatory Full Board Review, filed with the Board on October 5, 2012, the carrier requests that the WCLJ's decision be reinstated because the record lacks substantial medical evidence demonstrating a causal relationship between the claimant's alleged occupational stress and his stroke.
In a rebuttal, filed with the Board on November 1, 2012, attorneys for the claimant request that the majority opinion be upheld.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant filed a C-3 (Employee Claim) on March 21, 2008, seeking workers' compensation benefits based on a stroke he suffered at his home on August 22, 2007. The carrier controverted the claim.
In a letter to claimant's original attorney dated January 11, 2009, Dr. Corbett, a neurologist who treated claimant in the hospital following his stroke, stated that he recollected claimant "mentioning some stress with his supervisors," but had "no clear recollection of specific incidences, persons, or nature of the stress or the degree of stress he was claiming." Dr. Corbett indicated that, in his opinion, claimant experienced a "small stroke" from which he was expected to make a good recovery, and noted the "probability of exaggeration of symptoms" by the claimant. Dr. Corbett opined that "whatever stress [claimant] experienced at work did not precipitate or cause the probable stroke that he experienced."
In a letter to claimant's new attorneys dated July 20, 2011, claimant's treating physician, Dr. Giuliano, stated that claimant,
reported "a lot of stress at work" particularly with his supervisor and tension at work was significantly worse just prior to his stroke. It is well known that stress may be an important contributing factor in increasing certain Cardiovascular Risk Factors such as Blood Pressure, Heart Rate, Elevated Glucose, Gastric Acid Secretion, Headaches, Cholesterol Levels, etc.
Unfortunately, certain individuals are affected and respond much differently than others to stress whether it be in one's workplace or other areas of their life. Based on [claimant's] report it is my belief that the unusually excessive, work related stress was probably a precipitating factor in [claimant's] stroke. (Document #184935135.)
Claimant was examined by the self-insured employer's (SIE's) consultant, Dr. Barron, on October 18, 2011. In his report, Dr. Barron stated that in his opinion, claimant "has a cerebrovascular disease secondary to hypertension and hypercholesterolemia and as a result of that condition and the lacunar infarcts derived from it," he is permanently totally disabled. Dr. Barron went on to state that "causal relationship of the cerebral disease is hypertension-hypercholesterolemia. I see no relationship to 'injury' per se." Claimant waived the opportunity to depose Dr. Barron.
The claimant testified at a hearing on October 26, 2011, that he worked as a maintenance mechanic. At the conclusion of his shift on August 15, 2007, the claimant was informed by his supervisor that on the following day, August 16, 2007, he was being sent with a co-worker, another maintenance mechanic, on an assignment. The claimant explained to his supervisor that he had not been on speaking terms with the co-worker for almost two weeks and that he did not feel comfortable working with him on this assignment. Claimant's supervisor informed him that he would have to work with the co-worker on the following day.
The following morning, claimant's supervisor informed the claimant and his co-worker that they needed to go to the assigned job site. The claimant again verbalized his concerns about working with his co-worker. The supervisor then sent both the claimant and the co-worker home for the day.
Prior to leaving, the claimant asked his supervisor if he could wait to get his pay check. Claimant's supervisor did not respond to that, but instead stated to the claimant several times "why don't you retire". The claimant stated that he needed to work and the supervisor ordered the claimant out of his office. The supervisor then threatened to call the Sheriff.
The claimant did not report to work on August 17th, but instead called in sick because he was upset and stressed by the prior day's events. The claimant returned to work on Monday, August 20th and reported to the work assignment from the prior week with his co-worker. Sometime during the next two days, the co-worker informed the claimant that he did not go home on August 16th as directed by their supervisor, but rather stayed at work. Claimant testified that upon receiving this information, he became upset again.
The claimant reported to work on August 22nd and stayed at work even after he developed a headache. When he returned home that evening, the claimant still had a headache and his wife stated that he did not look well. Later that evening, the claimant began to vomit and was unable to stand up without assistance from his wife and daughter. The claimant was then taken to the hospital. During his hospital stay, his physician, Dr. Giuliano, informed him that he had suffered a stroke.
Dr. Giuliano testified by deposition on November 8, 2011. He stated that he has been the claimant's primary care physician since September of 1999. Dr. Giuliano testified that the claimant provided him with a history of what had occurred at his place of employment prior to August 22, 2007. Dr. Giuliano also testified that the claimant's attorney sent him a letter dated June 15, 2011, setting forth the workplace events that lead to the claimant's stroke on August 22, 2007. Dr. Giuliano sent a letter in response to claimant's attorney, dated July 20, 2011, in which he indicated that work stress was probably a precipitating factor in claimant's stroke. Dr. Giuliano testified that the letter accurately reflected his opinion on the causal relationship of claimant's stroke. Dr. Giuliano also testified that the history of events provided by the claimant was consistent with those set forth in the June 15, 2011, letter from claimant's attorney. Dr. Giuliano testified that he based his opinion on causal relationship on the "constant repetitive stressful environment" that the claimant told him that he encountered when he went to work (Deposition, Dr. Giuliano, 11/8/11, p. 15). Dr. Giuliano was not asked in his testimony to relate the specific stressors claimant experienced at work. Dr. Giuliano testified that the claimant suffered from risk factors known to contribute to a stroke: he was overweight, and his HDL was low before the stroke and even lower after the stroke despite taking Lipitor.
In a reserved decision filed on January 17, 2012, the WCLJ disallowed the claim on the grounds that she was "not convinced Dr. Giuliano was aware of the specific stress the claimant experienced in August 2007." The WCLJ commented that "if the doctor was aware, he failed to sufficiently articulate it either in writing or while being deposed."
"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 ; Matter of Keeley v Jamestown City School Dist., 295 AD2d 876 ). 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 ; see Matter of Van Patten v Quandt's Wholesale Distribs.,198 AD2d 539 ).'[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 , affd 90 NY2d 914 ; see Matter of Zehr v Jefferson Rehab. Ctr., 17 AD3d 811 )" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 ).
It has been held that, "a viable claim in the event of a heart attack or stroke may be based on work-related stress (see Matter of Joslyn v Oneida County Sheriff's Dept., 267 AD2d 891, 892-893 , Matter of Price v. KGM Plastic Indus., 192 AD2d 995 ); even where the medical event occurs outside of normal work hours (see Matter of Kroeger v New York State Workers' Compensation Bd., 222 AD2d 912 , lv denied 88 NY2d 801). While the rule in cases of metal injury caused by work-related stress is that the stress must be greater than that which usually occurs in the normal work environment (see Matter of Keane v New York State Elec. & Gas Co. 272 AD2d 802 ), benefits have nonetheless been awarded upon evidence that a heart attack or stroke was caused by work-related stress without a specific finding that the stress was greater than that which usually occurs in the normal work environment (see Matter of Black v Metropolitan Tobacco, 71 NY2d 989 )" Matter of Loftus v New York News, 279 AD2d 657 .
In the present case, the claimant' primary physician, Dr. Giuliano, stated in his July 20, 2011, correspondence "that the unusually excessive, work-related stress was probably a precipitating factor in [the claimant's] stroke." He testified during his deposition that the claimant provided him with a history of what had occurred at the claimant's place of employment prior to August 22, 2007. In addition, the claimant's attorney wrote a letter to Dr. Giuliano on June 15, 2011, setting forth the workplace events that lead to the claimant's stroke on August 22, 2007. Dr. Giuliano testified that he based his opinion on the "constant repetitive stressful environment" that the claimant told him that he encountered when he went to work (deposition, Dr. Giuliano, 11/08/11, p. 15).
Dr. Corbett stated in his letter of January 11, 2009, that the stress that the claimant experienced at work did not cause his stroke; however, he stated that he did not record in his written reports any specifics of the stressors the claimant was experiencing at work. In addition, Dr. Barron did not discuss in his report what role, if any, claimant's work stress played in causing his stroke
While conflicting evidence on the issue of causal relationship has been submitted, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant's stroke was caused, at least in part, by work-related stress.
ACCORDINGLY, the WCLJ reserved decision filed on January 17, 2012, is REVERSED. The claim is established for a causally related stroke on August 22, 2007. The case is restored to the hearing calendar to address all outstanding issues, including determination of average weekly wage, proper awards if any, and an attorney fee.