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Case # G1090473
Date of Accident: 04/10/2014
District Office: NYC
Employer: Engineers Country Club Inc
Carrier: Utica National Assurance Co
Carrier ID No.: W221758
Carrier Case No.: 0001560049
Date of Filing of Decision: 05/19/2017
Claimant's Attorney: Vecere & Travaglia, LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

* This decision also pertains to the following case(s): G1290368.

The Full Board, at its meeting on April 25, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed June 2, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether claimant sustained aortic insufficiency and dilation of the ascending aorta that was causally related to his employment.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim.

The Board Panel majority affirmed the WCLJ.

The dissenting Board Panel member would establish the claim for aortic insufficiency and dilation of the ascending aorta.

The claimant filed an application for Mandatory Full Board Review on July 1, 2016, requesting that the claim be established for aortic insufficiency and dilation consistent with the decision of the dissenting Board Panel member.

The carrier filed a rebuttal on July 26, 2016, arguing that claimant's physical injuries do "not bring this claim outside of the exclusionary language of Section 2(7)," and that the medical evidence of causal relationship is insufficient to establish this claim

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

FACTS

The claimant, an executive chef, filed a C-3 (Employee Claim) on June 19, 2014, alleging that at 8:30 p.m. on April 10, 2014, while at home after finishing his work shift, he experienced dizziness, light headedness and nausea, and sought medical treatment. The carrier controverted the claim.

Claimant was admitted to Winthrop University Hospital on April 11, 2014, and discharged on April 14, 2014. The hospital records contain a history written upon intake which states that claimant had prior history of hypertension and chronic migraines; he was bending down to throw out garbage when he began to feel "dizzy and with a sensation of room spinning;" claimant's wife had stated that the claimant had not been feeling well for the past few days and was more tired than usual; the intake history indicated that claimant denied having similar episodes in the past (document #235508361, p. 64). However, the discharge summary noted that claimant "has had similar episode in the past" (id. at p. 42). The final diagnoses upon discharge were "chest pain; unspecified migraine without mention of intractable migraine, without mention of status migrainosus; essential hypertension, unspecified benign or malignant; psoriasis; aortic ectasia, unspecified site" (id.).

After his discharge from the hospital claimant saw a cardiologist, Dr. Sharma, on April 18, 2014. In her report, Dr. Sharma diagnosed claimant with controlled hypertension, an enlarged thoracic aorta, aortic regurgitation and premature coronary artery disease (family history). In an October 24, 2014, report, Dr. Sharma noted that due to "his strenuous work schedule that also involved heavy lifting, [claimant] went on and is currently on disability." Dr. Sharma did not offer an opinion whether any of claimant's conditions were causally related to his employment in either report.

Claimant was examined by the carrier's consultant, Dr. Friedman, on January 12, 2015. In his IME-4 (Independent Examiner's Report of Independent Medical Examination), Dr. Friedman noted that according to claimant, his job as an executive chef at a country club had, at some point, become "physically and mentally problematic for him." Due to inadequate staffing, claimant "was required to be responsible for all jobs on the maintenance of the food department." Dr. Friedman recorded a history of claimant experiencing dizziness, chest discomfort and nausea while at home on April 4, 2014, after working all day. Claimant "laid down on the floor," and then sought medical attention, and was hospitalized for four days. He returned to work for several months after his hospitalization in April 2014, "but decided to stop working because of the stress of the job and the responsibility that he had was persistent causing more stress." With respect to causal relationship, Dr. Friedman wrote:

A prolonged history of hypertension is most likely responsible for his dilated ascending aorta associated with mitral valvular insufficiency. In part his stressful work activities may have over the years increased his hypertension, thereby contributing to dilation of the aorta as well as loss of integrity of the aortic valve resulting in mild to moderate aortic regurgitation.

Stressful work activity over a period of years may have increased underlying idiopathic hypertension resulting in progressive changes in his heart and great vessels resulting in aortic insufficiency and dilation of the ascending aorta.

The patient had pre-existing conditions of prolonged multifactorial blood pressure elevation. It resulted in progressive aortic dilation affecting the aortic valve competency. He became orthostatic with a sudden drop or elevation of blood pressure resulting in his fall at home.

In a letter dated March 2, 2015, claimant's treating cardiologist, Dr. Smith, and Dr. Smith's physician's assistant, Patrycja Charkow, wrote that,

[Claimant] has a past medical history of hypertension with left ventricular hypertrophy, enlarged thoracic/ascending aorta, mild to moderate aortic regurgitation, dilated cardiomyopathy with ejection fraction of 55-60%, grade I diastolic dysfunction, migraines, family history of premature coronary artery disease, and former tobacco use.

Dr. Smith and P.A. Charkow went on to state that "[w]e believe that his past stressful work of executive chef could have contributed to the severity of his hypertension and possibly aortic enlargement. All of the above diagnoses including genetics, age, and environment may contribute to this disorder."

The claimant testified at a hearing on June 12, 2015, that he began working for the employer, a country club, in 1974 and had been executive chef since 1981 or 1982. As executive chef he was responsible for all food preparation, including purchasing and hiring and firing of staff. He did most of the butchering and helped with the cooking.

The employer's general manager testified at the hearing on August 27, 2015, that he had been in that position for over four years. He was the claimant's supervisor. He did not recall claimant complaining that he was under too much stress. The general manager testified that claimant had a stressful position, but "it was not anymore stressful than anywhere else" (p. 6). When asked whether, at any time, the claimant's job became more stressful, the witness responded the claimant had "lost two of his key employees without warning...and we had hard time filling those positions," but that type of thing happened all the time (p. 6-7). According to the general manager, claimant had a physical, hands-on job that required him to do heavy lifting. The employer was much busier from mid-May until mid-September than the rest of the year, and closed for two months in the winter. The claimant did not have set work hours and would need to work until the tasks he was responsible for were completed. The general manager testified that claimant returned to work for approximately two weeks following his hospitalization in April 2014 before resigning because he was no longer able to physically do his job, which required him to lift in excess of his 10-15 pound lifting restriction.

The WCLJ disallowed the claim in a decision filed September 1, 2015.

The claimant requested administrative review.

LEGAL ANALYSIS

Accident/Stress No Greater Than

"While the rule in cases of mental injury caused by work-related stress is that the stress must be greater than that which usually occurs in the normal work environment, 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" (Matter of Loftus v New York News, 279 AD2d 657 [2001] [citations omitted]).

This claim is premised on the theory that stressful work conditions increased claimant's underlying hypertension, which then in turn caused aortic insufficiency and dilation of the ascending aorta. It is not a claim for mental injuries caused by work stress. Therefore, claimant was not required to show that the stress he experienced was greater than that which usually occurs in the normal work environment.

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]).

Here, the carrier's consultant, Dr. Friedman, stated in his report that claimant's "stressful work activities may have over the years increased his hypertension, thereby contributing to dilation of the aorta as well as loss of integrity of the aortic valve resulting in mild to moderate aortic regurgitation," and that "[s]tressful work activity over a period of years may have increased underlying idiopathic hypertension resulting in progressive changes in his heart and great vessels resulting in aortic insufficiency and dilation of the ascending aorta" [emphasis added].

Claimant's treating cardiologist, Dr. Smith, wrote that claimant's "past stressful work of executive chef could have contributed to the severity of his hypertension and possibly aortic enlargement" [emphasis added].

The opinions of Dr. Friedman and Dr. Smith fail to signify a probable causal link between claimant's work and his aortic enlargement. Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the medical evidence in the record is too speculative to support the establishment of this claim (see Matter of Qualls v Bronx Dist. Attorney's Off., 146 AD3d 1213 [2017]).

CONCLUSION

ACCORDINGLY, the WCLJ decision filed September 1, 2015, is AFFIRMED. This claim is disallowed. No further action is planned by the Board at this time.