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Workers' Compensation Board

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Case # G1130492
Date of Accident: 08/28/2014
District Office: NYC
Employer: Kel Tech Construction
Carrier: ACE American Insurance Co.
Carrier ID No.: W019004
Carrier Case No.: C494C4068746
Date of Filing of Decision: 05/19/2017
Claimant's Attorney: Fusco, Brandenstein & Rada PC
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

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 October 5, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether this claim should be established for a work-related stroke.

The Workers' Compensation Law Judge (WCLJ) established the claim for a work-related stroke.

The Board Panel majority reversed the WCLJ decision and disallowed the claim.

The dissenting Board Panel member would affirm the WCLJ.

The claimant filed an application for Mandatory Full Board Review on October 31, 2016, arguing that substantial evidence supports establishing this claim for a work-related stroke because the work claimant performed on August 28, 2014, contributed to the onset of the stroke because it caused the blood clot to move.

The carrier filed a rebuttal on November 29, 2016, asserting that there is insufficient medical evidence of causal relationship to support establishing the claim for a work-related stroke.

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

FACTS

This is a controverted claim for an alleged work-related stroke occurring on August 28, 2014. The record was developed by way of the claimant's lay testimony and the medical testimony of Dr. Ploss, Dr. Stubgen and Dr. Stauber.

The claimant testified at a hearing on December 4, 2015, that he was working for the employer on August 28, 2014, as a brick layer through the brick layer's union. He had only been with this employer for a few months, but had worked as a brick layer since 1983. The job site he was on at the time of the stroke was a school renovation, which had him laying bricks and coping. Coping stones are large and weigh anywhere from two hundred to five hundred pounds, which requires three people to lift. He and two co-workers moved these stones forty to fifty feet.

On August 28, 2014, the claimant started the work day at 3:30 P.M. and they lifted between ten to thirteen stones before the half hour dinner break at 7:30 P.M. The break area was down four flights of stairs from the work area. When work resumed the power was out, so his foreman threatened to kick him off the job if he did not get the electric to turn on, which he did by flipping some switches in the breaker box. The claimant's supervisor had a history of trying to fire the claimant and making racial innuendos about Americans not being able to work as well as his own countrymen. The claimant did not recall what happened after he flipped some switches, but he lost consciousness and woke up in the hospital.

The Flushing Hospital Medical Center Report of claimant's admission on August 28, 2014, states that claimant "presented to the hospital with complaints of left sided weakness. Last evening patient was speaking with wife on phone at which time he collapsed. Patient states that he remembers talking to his wife regarding some electrical work he was doing at his job. After which time he woke up and a number of people surrounding him."

On cross-examination the claimant confirmed that he never had a stroke before August 28, 2014, nor did he have any tremors, shakes or dizziness before the stroke. The claimant admitted that he has been a half a pack a day smoker for twenty years.

Dr. Ploss examined the claimant on December 11, 2014, and July 2, 2015, at the claimant's request. Dr. Ploss was deposed on October 21, 2015, and testified that he took a history that the claimant was a pack a day smoker since the age of sixteen, and had no prior history of hypertension, diabetes, cardiovascular or pulmonary disease. The claimant worked as a brick layer since 1983, and had to help carry stones weighing up to five hundred pounds. Dr. Ploss testified that on August 28, 2014, the claimant was under stress because of his supervisor's verbal abuse and confrontations, and while he was fixing the lighting for the worksite he had a stroke. The doctor diagnosed the claimant with stroke that was causally related to his work because it happened on the job while he was performing heavy physical work and had a confrontation with his foreman. The doctor admitted that the claimant's smoking is a risk factor for having this type of stroke.

On cross-examination, Dr. Ploss confirmed that the claimant had placed twelve to fifteen coping stones before the stroke occurred. The doctor admitted that the claimant had hyperlipidemia, which was being treated with lipoderm and aspirin. The doctor was unaware of the claimant's cholesterol levels before the hospitalization on August 28, 2014. The doctor testified that the claimant reported dizziness to the emergency room in the few days before the August 28, 2014, stroke, but the claimant had no recollection of this being the case.

Dr. Stubgen was deposed on December 1, 2015, and testified that he began treating the claimant on September 8, 2014, and received a history of the claimant having been admitted to Flushing Hospital Medical Center with acute onset left sided paralysis. He was aware that claimant worked as a bricklayer, but did not receive a detailed description of the work claimant was doing prior to his stroke. On examination, claimant presented with symptoms consistent with a stroke. The doctor testified that the heavy labor the claimant performed could be "contributory" to the stroke, but "would not be causative" (p. 9-10). Dr. Stubgen stated, "I wouldn't say anything caused the stroke. I would say, at worst, something that he did, physical exertion, can contribute to a stroke. I'm talking about dehydration. I'm talking about an open heart valve, a hole in the heart. But to directly correlate or draw a line between physical activities and a stroke, I think, would be incorrect" (p. 11-12).

Dr. Stauber was deposed on December 2, 2015, and testified that he examined the claimant for the carrier on October 28, 2015. Dr. Stauber took a history that the claimant had a stroke at work on August 28, 2014. The claimant lost consciousness and woke up in the hospital, where he was given treatment that dissolved the blood clot. The claimant reported having a facial drop, speech difficulties, and left arm and leg weakness. During the examination, the claimant had an antalgic gait, but he did not use an assistive device to ambulate. Additionally, the claimant had weakness at the left arm and left leg with a left foot drop. Dr. Stauber diagnosed the claimant with a right cerebral vascular accident with left hemiparesthesis. The doctor testified that an embolic stroke occurs when a blood clot travels to an artery in the brain. He was of the opinion that claimant suffered an embolic stroke because he was successfully treated with blood thinners. Smoking is a significant risk factor in strokes. Stress did not cause this stroke.

On cross-examination, Dr. Stauber admitted that the claimant had no prior history of diabetes, hypertension or any other cardiovascular disease. The doctor also admitted he had no history regarding the claimant's activities on August 28, 2014. However, Dr. Stauber explained that an internal blood clot cannot be caused by his work activity, so he did not need an accurate work history. However, while claimant's work did not create the blood clot, Dr. Stauber conceded that it was possible that physical activity can cause a blood clot to move.

The WCLJ, in a reserved decision filed January 27, 2016, established this claim for a work-related stroke.

LEGAL ANALYSIS

"'[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]).

In this case, the substantial evidence supports establishing this claim for a work-related stroke. The record reflects that the claimant was working at the time the stroke occurred and is entitled to the presumption that his stroke arose out of his employment (see WCL § 21[1]). Dr. Ploss testified that the stroke was causally related to claimant's work. Dr. Stubgen testified that the claimant's heavy work could have contributed to the occurrence of the stroke. The carrier's medical examiner, Dr. Stauber, testified that it was his opinion that claimant's stroke occurred when a blood clot travelled to an artery in claimant's brain. Dr. Stauber was clearly of the opinion that claimant's work activities could not, and did not, cause the creation of the clot. However, he conceded that physical activity could cause a clot to move and failed to offer an opinion concerning whether claimant's work activities caused a clot to move, resulting in his stroke. While Dr. Stauber's opinion that claimant's work duties could not cause an internal blood clot would be sufficient to rebut the WCL 21(1) presumption if this was a claim premised solely on the creation of a blood clot, the doctor's concession that physical activities could cause an internal clot to move, thus resulting in a stoke, so undermines his conclusion that claimant's work did not cause the stroke, that his opinion is not sufficient to rebut the presumption.

Moreover, putting the presumption aside, the preponderance of the evidence in the record supports a finding that claimant's work contributed to the stroke, making it compensable. Dr. Stauber conceded that physical activity could cause a clot to move. Dr. Stubgen testified that heavy labor could have contributed to the stroke. Dr. Ploss found that the stroke was causally related, relying largely on the timing of the event, which occurred immediately after claimant performed heavy physical labor and experienced severe emotional stress as the result of a confrontation with his foreman.

Therefore, the Full Board finds that the preponderance of the evidence supports a finding establishing this claim.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed January 27, 2016, is AFFIRMED. No further action is planned by the Board at this time.