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Case # G0299005
Date of Accident: 12/29/2010
District Office: Albany
Employer: Campbell Group Associates
Carrier: New Jersey Manufacturers
Carrier ID No.: W156004
Carrier Case No.: W2011-501490
Date of Filing of Decision: 11/01/2013
Claimant's Attorney: Ouimette, Goldstein & Andrews LLP
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on September 17, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on January 31, 2013.

ISSUE

The issue presented for Mandatory Full Board Review is whether the presumption of compensability under Workers' Compensation Law (WCL) § 21 has been sufficiently rebutted.

The Workers' Compensation Law Judge (WCLJ) found that the carrier did not sufficiently rebut the presumption of compensability under WCL § 21 and established this claim for death benefits.

The Board Panel majority rescinded the WCLJ's decision, finding that the carrier submitted sufficient evidence to rebut the statutory presumption of WCL § 21; that the record contains insufficient evidence that the decedent's death arose out of and in the course of employment; and that the claimant now bears the burden of proof, through the production of competent medical evidence, to support the claim that the decedent's death was work related.

The dissenting Board Panel member would have affirmed the WCLJ's decision.

On February 11, 2013, the claimant filed an application for Mandatory Full Board Review, arguing that the carrier failed to sufficiently rebut the presumption of compensability under WCL § 21.

On February 27, 2013, the carrier filed a rebuttal, arguing that the decision of the Board Panel majority should be affirmed.

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

FACTS

This is a controverted claim for injury resulting in death.

On December 29, 2010, the decedent reported to work in good health and with no physical complaints. He was driving between client locations as part of his work duties when he pulled off the road and then collapsed. There were no eyewitnesses to the incident. The decedent was found deceased in his company car during working hours.

The WCLJ found that the decedent had a dependent child under the Workers' Compensation Law.

In an Autopsy Report dated April 26, 2011, Dr. Bristol concluded that the cause of the decedent's death was "Cardiomegaly with old Myocardial Infarct. Collapsed while driving." The doctor indicated that the cause of death was "natural."

The death certificate contained in the Board file lists the cause of the decedent's death as "Cardiomegaly with old Myocardial Infarct. Collapsed while driving."

In a letter dated August 15, 2011, the carrier's consultant, Dr. Cantor, indicated that he had reviewed the records that were sent to him, including an autopsy report, a certificate of death, a police report, and a letter from an employee at Campbell Freightliner of Orange County. Dr. Cantor concluded that there was no evidence to support finding any causal relationship between the decedent's employment and his death.

During a deposition on December 6, 2011, Dr. Bristol testified in accordance with his autopsy report. Specifically, Dr. Bristol testified that he performed an autopsy of the decedent on December 30, 2010, and that he reported his findings in his autopsy report. The doctor further testified that the cause of the decedent's death was cardiomegaly with old myocardial infarct. According to Dr. Bristol, he based his determination as to the cause of death on the weight of the decedent's heart and the structure of the decedent's heart. Specifically, the doctor indicated that the decedent had a heavy heart at 520 grams, that the arteries of the heart were blocked, that the structure of the heart revealed an old heart attack, and that the walls of the heart were thick (ventricular hypertrophy). Dr. Bristol testified that cardiomegaly is enlargement of the heart and that an enlarged, heavy heart can be a cause of death in and of itself. Dr. Bristol noted that in the decedent's case there is an addition of an old heart attack. Dr. Bristol stated that there was no evidence of a new heart attack.

During a deposition on December 9, 2011, Dr. Cantor testified that as part of his independent medical examination (IME) he was not asked to comment on the cause of the decedent's death. According to Dr. Cantor, he was only asked to determine if the decedent's death was causally related to his employment. Dr. Cantor stated that with respect to the cause of the decedent's death he would defer to the medical examiner. With respect to causal relationship, Dr. Cantor opined that he saw no evidence of causal relationship from the records that he reviewed. Dr. Cantor further indicated that he saw no evidence that the claimant's old myocardial infraction was causally related.

In a reserved decision filed on February 1, 2012, the WCLJ found that the carrier did not sufficiently rebut the presumption of compensability under WCL § 21 and established the claim.

LEGAL ANALYSIS

"It is well settled that there is a presumption of compensability when an unwitnessed or unexplained death occurs during the course of one's employment (see Workers' Compensation Law § 21[1]; Matter of Marcus v City of Troy, 39 AD3d 912 [2007]; Matter of Salley v New York City Police Dept., 38 AD3d 1150 [2007]). This presumption may be rebutted, however, by substantial evidence to the contrary (see Workers' Compensation Law § 21; Matter of Pinto v Southport Correctional Facility, 19 AD3d 948 [2005]). Moreover, rebuttal of the presumption 'does not require irrefutable proof excluding all . . . conclusions other than that offered by the employer that the accidental injury was not work related' (id. at 950 n). Once the presumption is rebutted, a claimant then has the burden of establishing a causally related death (see Matter of Marcus v City of Troy, 39 AD3d at 913)" (Matter of Petrocelli v Sewanhaka Cent. School Dist., 54 AD3d 1143 [2008]).

While it is true that in many instances, a carrier or employer will produce the contrasting report and testimony of a medical consultant (see Matter of Ruper v Transport Sys. of Western N.Y., 58 AD3d 930 [2009]; Matter of MacDonald v Penske Logistics, 34 AD3d 967 [2006]), such a report and/or testimony is not necessary in the case where the death certificate, itself, provides the evidence that rebuts the presumption (see Matter of Hanna v Able Body Labor, 26 AD3d 1200 [2009]).

In the present case, an autopsy of the decedent was performed by Dr. Bristol. Based on his examination of the decedent, Dr. Bristol concluded that the decedent's death was "natural" and that the cause of the decedent's death was "Cardiomegaly with old Myocardial Infarct. Collapsed while driving." Consistent with Dr. Bristol's autopsy report, the death certificate lists the cause of the decedent's death as "Cardiomegaly with old Myocardial Infarct. Collapsed while driving." During a deposition on December 6, 2011, Dr. Bristol testified in accordance with his autopsy report. Specifically, Dr. Bristol credibly testified that the cause of the decedent's death was cardiomegaly with old myocardial infarct. During his testimony, Dr. Bristol specifically explained how he objectively reached his conclusion as to the cause of the decedent's death. Dr. Bristol's testimony with respect to the cause of the decedent's death was unequivocal and unwavering. Nothing in the record suggests that Dr. Bristol's opinion on cause of death was speculative or uncertain. In addition, rebuttal of the presumption does not require irrefutable proof excluding all conclusions other than the one being offered by the employer in this case. Therefore, the autopsy report, death certificate and Dr. Bristol's testimony represent sufficient evidence to rebut the presumption of compensability under WCL § 21.

With respect to causal relationship, Dr. Cantor credibly testified that he saw no evidence of causal relationship from the records that he reviewed, and concluded that the decedent's death was not causally related to the decedent's employment.

Therefore, the Full Board finds that the carrier submitted sufficient evidence to rebut the statutory presumption of WCL 21, and that the record contains insufficient evidence that the decedent's death arose out of and in the course of employment, is supported by a preponderance of the evidence in the record.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on February 1, 2012, is REVERSED. Claimant now bears the burden of proving that the decedent's death was work related. The case is continued.