The Full Board, at its meeting on May 21, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on August 27, 2012.
The issues presented for Mandatory Full Board Review are:
The Workers' Compensation Law Judge (WCLJ) found that the claimant's stroke arose out of and in the course of his employment, and that the medical evidence in the record supported a finding of temporary total disability.
The Board Panel majority found that the WCLJ properly found that the claimant's stroke, which he suffered while at work, arose out of and in the course of his employment. The Board Panel majority further found that the record contained credible medical evidence warranting awards from February 23, 2011, forward.
The dissenting Board Panel member would find that the claimant's stroke did not arise out of and in the course of his employment.
In its application for Mandatory Full Board Review, the carrier argues that the claimant failed to produce medical evidence which would substantiate that the claimant's injury was caused by the claimant's employment. The carrier notes that the medical evidence produced in this case reveals that the claimant had multiple preexisting medical conditions that are acknowledged to increase the likelihood of suffering a stroke, and argues that the medical opinion of claimant's treating physician, Dr. Herbst, should not be deemed credible because Dr. Herbst is a personal friend of the claimant. The carrier also argues that the claimant failed to produce medical evidence of a disability subsequent to the February 23, 2011.
In his rebuttal, the claimant argues that the Board Panel majority opinion should be affirmed because the claimant has produced medical evidence which supports a finding that the stress that claimant was experiencing in the course of his employment contributed to the stroke.
Upon review, the Full Board votes to adopt the following findings and conclusions.
In medical reports from the Burke Rehabilitation Hospital dated April 11, 2011, and April 12, 2011, the claimant was diagnosed with "mild to moderate cognitive-communication impairment."
In a C-4 (Doctor's Initial Report) dated May 31, 2011, the claimant's attending physician, Dr. Herbst, indicated that the claimant suffered a stroke as a result of the high level of stress associated with the claimant's job. Dr. Herbst indicated that claimant had a temporary total disability, and that the condition was "likely permanent."
During a deposition on July 21, 2011, Dr. Herbst testified in accordance with his medical reports. Dr. Herbst testified that he began to see the claimant on May 27, 2008, and noted that the claimant had preexisting hypertension, diabetes, psoriasis and mild chronic lung disease. The doctor also indicated that the claimant suffered from preexisting atrial fibrillation, which was discovered on January 11, 2010. Dr. Herbst testified that stress in combination with an atrial fibrillation results in an increased risk of stroke or bleed (Deposition, Dr. Herbst, 7/21/11, pg. 19). Dr. Herbst further opined that stress was "really a big player" with respect to the occurrence of claimant's stroke (id. at 20). According to Dr. Herbst, stress contributed to claimant's stroke by causing a rise in his pulse rate, his blood pressure to go up, and the catecholamine levels in his blood to increase (id.). Dr. Herbst testified that "Many of us are born with weakness in our arterial walls, but what actually makes it break is the rise in blood pressure, the rise in pulse and the rise in stress level. Stress never helps" (id.). On cross-examination, Dr. Herbst acknowledged that the claimant's preexisting conditions of hypertension, diabetes, and atrial fibrillation all were risk factors for a stroke. However, while these preexisting ailments may have contributed to the stroke, it was his opinion that the high level of stress that the claimant experienced in the course of his employment as general manager of an auto body shop was a major contributing factor that helped to precipitate the stroke.
In a Practitioners Report of Independent Medical Examination (IME-4) dated July 26, 2011, the carrier's consultant, Dr. Feuer, concluded that the claimant's stroke resulted from his underlying atrial fibrillation, and that he could not establish causal relationship between the claimant's stroke and his employment because he was unable to identify any work-related activity that would have contributed to the claimant's stroke. Dr. Feuer based his conclusion on the fact that the claimant was sitting at his desk at the time of the stroke and that the claimant enjoyed his job. With respect to the claimant's level of disability, Dr. Feuer stated that the claimant "demonstrates a total temporary neurological disability on the basis of his left hemisphere."
At a hearing on August 31, 2011, the claimant testified that he worked as the general manager of the employer, an auto body shop, for fifteen years. The claimant testified that the shop was busy and that his responsibilities included writing estimates, selling services to customers, calling in claims to insurance companies, preparing itemized damage reports, negotiating claims with insurance appraisers, ordering parts and managing/supervising staff. According to the claimant, the owner of the shop no longer took an active role in the business and that, as a result, the claimant was responsible for many of the management obligations. The claimant testified that he is a perfectionist who is very intense in his approach to work and that the job is stressful. The claimant stated that he worked from 8:30 a.m. to between 6:00 and 6:30 p.m., sometimes later. According to the claimant, he usually didn't take a lunch break; instead, he ate lunch at his desk while he worked. The claimant characterized his employment as "very intense." The claimant indicated that on the date of the stroke he had been busy all day, and that during the afternoon he was confronted by an "irate customer" (Hearing Minutes 8/31/11, pg. 12). The claimant testified that in the fifteen years that he had been working as general manager of the shop he had never encountered a customer as disruptive and pressing as the customer he encountered on February 23, 2011. The claimant further testified that the encounter left him so agitated that after he finished removing the license plate from the customer's car, he flung the license plate into the street. According to the claimant, he believes that he began having symptoms of the stroke while he was removing the license plate from the customer's car. The claimant testified that after he finished removing the license plate, he returned to his office where he sat down at his desk. According to the claimant, it was while he was seated at his desk that he had the stroke. On cross-examination, the claimant acknowledged that he had preexisting hypertension and atrial fibrillation, and that he was taking the medication Coumadin (an anticoagulant) at the time of the stroke.
In a Notice of Decision dated September 6, 2011, the WCLJ established the claim for a work-related stroke based on the claimant's testimony regarding the stress that he was experiencing at work, and the testimony of Dr. Herbst that the claimant's work-related stress contributed to the stroke. The WCLJ set the claimant's average weekly wage at $700.00 and directed the payment of awards to the claimant from February 24, 2011, to September 1, 2011, and continuing at the rate of $466.67 per week.
The carrier filed an application for administrative review arguing the medical evidence established that the claimant had multiple preexisting conditions that were acknowledged risk factors for a stroke and that there was insufficient evidence that the claimant's employment was a cause of the claimant's condition. The carrier also argued that there was insufficient medical evidence of a disability dating back to February 23, 2011.
"To 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 )."
"It is claimant's burden to establish a causal relationship between his employment and his disability by producing 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 ). A disability caused by the "combined effect" of a work-related and non-work-related condition is sufficient to establish causal relation (Matter of Van Patten v Quandt's Wholesale Distribs., 198 AD2d 539 ).
"[A] viable claim in the event of a heart attack or stroke may be based on work-related stress" (Matter of Loftus v New York News, 279 AD2d 657 ). For a claim to be compensable, work stress need only be a contributing cause of the heart attack or stroke, and the existence of other non-work-related contributing causes will not defeat the claim (see Matter of Joslyn v. Oneida County Sheriff's Dept., 267 AD2d 891 ). Unlike a claim for solely mental injuries resulting from work stress, benefits may be 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 (Loftus v New York News, 279 AD2d 657 ). As the Full Board recently noted, "in order to find that work-related stress played a part in a claimant's heart attack or a stroke, there must be sufficient evidence of actual work-related stress and a medical opinion giving causation" (Matter of Health and Hospital Corp., 2011 NY Wrk. Comp. 00648758).
The credible, uncontradicted testimony of the claimant establishes that the claimant's job as general manager of an auto body shop caused the claimant to experience regular and prolonged stress, and that the claimant was confronted with a particularly stressful situation immediately preceding the stroke that he suffered at work on February 23, 2011. In addition, the medical opinion provided by Dr. Herbst on the issue of causation is supported by a rational basis and signifies a probability that the stress that the claimant was experiencing at work contributed to the claimant's stroke. Specifically, Dr. Herbst testified that the claimant had a preexisting atrial fibrillation, which when combined with stress results in an increased risk of stroke or bleed. Dr. Herbst opined that stress was a major contributing factor with respect to the occurrence of claimant's stroke, explaining that stress specifically contributed to the claimant's stroke by causing a rise in his pulse rate, his blood pressure to go up, and the catecholamine levels in his blood to increase.
The carrier argues that the medical evidence provided by Dr. Herbst should not be deemed credible because he is "personal friends" with the claimant; however, the mere fact that Dr. Herbst is on friendly terms with his patient and has his car serviced at the claimant's shop does not warrant characterizing the relationship as a "personal friendship." There is no evidence in the record of any contact between Dr. Herbst and the claimant outside of their professional/business relationships that would call Dr. Herbst's objectivity into question. Dr. Herbst is licensed to practice medicine and is authorized by the Board to treat injured workers. The carrier's claim, without providing evidence which supports a finding of bias on the part of Dr. Herbst, is not enough to call the doctor's objectivity into question.
The Full Board finds, based upon a preponderance of the evidence, that the claimant's stroke, which he suffered while at work, arose out of and in the course of his employment.
Proof of Subsequent Disability
The record contains numerous medical records which conclude that the claimant had a disability subsequent to February 23, 2011. The Burke Rehabilitation Hospital, which treated the claimant from March 3, 2011, to April 12, 2011, on both an inpatient and outpatient basis, diagnosed the claimant as having a "mild to moderate cognitive-communication impairment" in medical records dated April 11, 2011, and April 12, 2011. In addition, the claimant's attending physician, Dr. Herbst, submitted a C-4 dated May 31, 2011, found that claimant had a temporary total disability, and suggested that the condition was "likely permanent." Finally, Dr. Feuer, in his IME report dated July 20, 2011, stated that the claimant "demonstrates a total temporary neurological disability on the basis of his left hemisphere."
The Full Board finds, based upon a preponderance of the evidence, that the credible medical evidence in the record supports a benefit award from February 23, 2011, to September 1, 2011, and continuing at the rate of $466.67 per week.
ACCORDINGLY, the WCLJ decision filed on September 6, 2011, is AFFIRMED in its entirety. No further action is planned by the Board at this time.