Cathleen Renner died of a pulmonary embolism on September 25, 2007.  Renner’s dependents filed a workers' compensation claim alleging that she literally “worked herself to death” by sitting in a chair at home and working on an assigned project from “the evening” of September 24, 2007 until sometime in the morning of September 25, 2007.  According to the claimant’s paid expert, Renner died of blood clots which formed by “sitting for an extended period of time.”  The case was actually reviewed by the Appellate Division twice: the first decision of the workers’ compensation judge - finding that the decedent had sustained a comepnsable injury and awarding benefits to the survivors based on a  “occupational injuries” theory of causation - was reversed by the appeals panel because the judge applied the wrong standard.  The Appellate court ruled that the claimants had to meet a higher burden of proof imposed by New Jersey’s Section 7.2, which applies in heart attack and cardiovascular cases (N.J.S.A. 34:15-7.2).
 
On remand, the law judge decided the case again -  this time finding that the claimant’s inactivity was a material cause of her pulmonary embolism and ascribing that injury and ultimately the death to the employment.
 
As the decedent was 47 years old and likely subject to the maximum rate in effect for statutory year 2007.  Her husband will be paid $1,317,049 should he live to his life expectancy. 
 
Under the New Jersey Workers’ Compensation Act there is a higher burden for a claimant to meet in cases involving cardiovascular injury (such as pulmonary embolism).  A claimant must show that that “the injury or death was produced by the work effort or strain involving a substantial condition, event or happening in excess of the wear and tear of the claimant's daily living and in reasonable medical probability caused in a material degree the cardiovascular or cerebral vascular injury or death resulting therefrom.”  See N.J.S.A. 34:15-7.2.  In plain English, the claimant has the burden to show, by a preponderance of the evidence, that the work effort which caused the condition was somehow more strenuous than the activities of daily living.  This is because the drafters of the statute envisioned that the “cardiovascular” events brought before the Division of Worker’s Compensation would be heart attacks and strokes - which can be brought on by stress and strain.
 
For some unponderable reason, the defense counsel in the Renner case conceded that the issue in that case was “whether Cathleen's lack of movement at work was more severe than her lack of movement in her daily living” -essentially, applying the “reverse” of the excess wear and tear factor required by the Act.  Why on earth did defense counsel agree to this? Under the Act, the burden was on the claimant to show that the work activity produced the condition.  Why did defense agree to a weaker position - having to prove that the claimant’s activities of daily living were more strenuous than her work activities?  Considering the fact that the subject of that inquiry - Cathleen Renner - was dead - how exactly was defense counsel intending on proving her activities of daily living?  Through the testimony of her dependents?  
 
Well, Renner’s  dependents certainly testified in the case, but given their own financial interest in the outcome, could not reasonably be expected to help the defense by volunteering information about Renner’s personal life.  In fact, Renner’s husband testified that in her personal life, his wife was “never sitting on the  couch with me.  She was always up and out, you know, running with the kids and taking them wherever they needed to be. . .  always running.  Always running.” 
 
The case is also amazing because there is a lack of verifiable (objective) proofs that the decedent was actually working for any of the time period she was allegedly immobile.
 
According to the facts as accepted by the workers’ compensation court, she “began working at home on the evening of September 24, 2007.”  No specific time is noted anywhere.  There is no statement as to what she was actually doing - Facebook?  Twitter? Farmville?  Work?   Instead, there is a reference to an email sent to a coworker at 12:26AM.  No discussion is provided as to what that email was about.
 
The next piece of information comes from the decedent’s son, who stated he woke at 7AM on September 25th, 2007 and saw his mother at her desk in her home office.  Her husband was not home to observe any of the alleged “work.”  The son did not testify that she worked through the night - only that she was at her desk in the morning.  There appears to have been no evidence of what actual work she was doing - no computer log files, documents, or network login information.  Even the decedent’s supervisor testified that she had plenty of work to do but did not confirm she was working overnight.  
 
The decedent next verifiable activity was to email a coworker at 9AM to state she was not feeling well.   Her final act was to email a document to someone at AT&T at 10:30AM.  Shortly after, she called for an ambulance and was taken to the hospital.  She succumbed to pulmonary embolism.
 
According to the National Heart Lung and Blood Institute(NHLBI) risk factors for pulmonary embolism include: prolonged immobility, obesity, and medications that affect blood clotting times, especially birth control pills.
 
Cathleen Renner was classified as “morbidly obese” at 300 pounds and on birth control medications at the time of death.  Both of these conditions are considered leading risk factors for developing a pulmonary embolism.
 
The Appellate Division affirmed  the opinion of the Judge of Compensation that Renner’s death was related to “prolonged inactivity” due to work and therefore compensable.  
 
The lack of evidence regarding work described in the opinion is disheartening.  The defense should have challenged the lack of a verifiable timeline and lack of documented proofs to show Renner was even working the alleged “overnight” marathon work session claimed.    
 
The fact that no one seems to have asked the simple question: what was it about the work that prevented the decedent from getting up every hour or so, and walking around for thirty seconds?  She certainly didn’t have a supervisor hovering over her shoulder, forcing her to sit perfectly still for hours on end.
 
This case is emblematic of the lengths courts will go to find questionable claims compensable. 
 
The defense in this case agreed to a “made up” legal standard to the case that shifted the burden of proof from the claimant to the employer.  This hurt the employer.  The Workers’ Compensation Act requires that in vascular cases the claimant must show a heightened exertion - something beyond the activity of daily living.  For some reason the employer agreed that if the claimant could show less exertion than daily living, the claimant should prevail.  That is ridiculous.
 
Next, the defense should have presented facts showing exactly what the decedent was doing for the unknown time period.  Server logs, network logins, and the decedent’s own computer should have been submitted into evidence.  The record as discussed in the Appellate decision is scant.  
 
Finally, the fact that the claimant was morbidly obese and on medication that affected the clotting characteristics of her blood - known risk factors for embolisms -  should have been used more effectively.  Instead, causation in this case turned on whether Cathleen's “lack of movement at work was more severe than her lack of movement in her daily living” which is an absurd standard not found in the Workers' Compensation Act.
 
The case is not appealable as of right to the New Jersey Supreme Court as there was no dissenting opinion.  The employer may seek to appeal, and if they do we will update you as to the outcome.

Case: James P. Renner v AT&T,  A-2393-10T (App. Div. Decided June 27, 2011).  Link to full decision.

The 54 year-old worker in this case was employed in a brick factory. He described his factory job as "not stressful" and enjoyable. Sometimes, when a machine would break, the workers would have to work overtime doing manual jobs to keep production going.
On March 11, 2006 the employee had to work overtime. He did strenuous work in a hot environment. While working, he complained to a co-worker of feeling unwell. At the suggestion of the co-worker, the claimant went home early.
The next day the claimant went to the emergency room and was diagnosed as having had a heart attack. A cardiac cauterization was ordered, and the employee died 11 days later.
The claimant's widow filed a dependency claim petition, alleging that his death resulted from the strenuous condition and the heart attack. Both sides selected experts. Claimant's expert (Dr. Malcolm Hermele) opined that the heart attack occurred on the day the claimant worked overtime, ad the work effort materially contributed to the attack.
Respondent's expert opined that the claimant had a long standing unstable angina. According to the employer's expert, unstable angina is characterized by chest pain that develops with activity and subsides with rest.
After hearing the testimony of both doctors, the Judge of Compensation found that the work effort caused the cardiac event. Although the employer's expert testify that the claimant had unstable angina and that the heart attack would have occurred even if the employee had not worked overtime, the Judge found that the heavy labor occasioned by the overtime work materially contributed to the heart attack.
This case demonstrates that where your defense expert opines the 'cardiac event would have curried anyway' that is not enough to prevail when the claimant can show (1) increased work effort and (2) that the cardiac event occurred while working.
Case: Carol Reading v. Glen Gery Shale and Brick Company, A-1525-09T3 (N.J. App. Div. Decided Oct. 22, 2010). Note: I couldn't find a link to the final decision online - just the Appellate Division's notice the decision was issued. Contact me to request a copy of the decision.

36 year-old Thomas McKeever was employed by J.C. Penney as a security guard. On his day off, McKeever happened to be walking through a different J.C. Penney (not the one he worked in) when he observed a customer acting suspiciously. The claimant started following the customer.
Eventually the customer saw the claimant following him and fled the store. The claimant chased after him, breaking into a run. After running about 50 yards, the claimant was out of breath and seeing stars so he broke off the pursuit.
After doing some personal banking, the claimant returned to the store and complained about being out of breath. An ambulance was called, the claimant was taken to the emergency room. He was released without a diagnosis.
Two days later the claimant returned to the hospital and was diagnosed as having had an acute stroke or strokes. The claimant now alleges he has no sensation on the right side of his body,has problems remebering things, and needs a cane to walk. He filed a New Jersey claim petition alleging that the 50-yard pursuit of the possible shoplifter through a J.C. Penney store (but not the store he actually worked in) on his day off caused him to have a compensable cardiovascular event.
The issue before the workers' compensation court was whether the petitioner met his bred of proof under the New Jersey Workers' Compensation Act. The law requires that any claim for cardiovascular event (heart attack, angina attack, stroke, etc) must be proven by a showing that the precipitating event that allegedly caused the cardiac incident was the result of a strain in excess of the wear and tear of the activities of daily living. This effectively shifts the burden of proof to the claimant to make a prima facie showing - and in this case, the expert doctors each had an opinion as to whether the running event caused the stroke two days later.
The expert doctors hired by each side gave predictably conflicting opinions at the trial. The Judge of Compensation found that the claimant's expert was not as credible as the employer's expert, and the case was dismissed.
On appeal, the reviewing court found that the Judge of Compensation's reliance on the defense expert was well-placed as the employer's expert was better qualified. The employer's doctors was a board-certified neurologist while the claimant's expert was a psychiatrist.
Of note: an interesting aside in this case was that the respondent;s expert came up with a new alternate theory of causation on the eve of trial - but the Judge of Compensation refused to allow the expert to testify about the new theory because the defense expert had not provided a supplemental report to claimant's counsel prior to trial. On the stand the defense expert did not testify about his new theory of causation. However, claimant's counsel "opened the door" into this alternate theory of causation by asking the employer's expert to explain "how the stroke occurred." In response, the employer's expert testified based on his new alternate theory. The Judge of Compensation was able to rely upon this previously-barred testimony!
The Take-away: Never ask an opposing expert to explain their opinion - it opens the door for the opposing expert to expand upon their earlier opinions and maybe introduce a new theory of causation for you to combat at trial!
Case: Thomas McKeever v. J.C. Penney, A-0992-09T1 (N.J. App. Div. Decided Oct. 18, 2010). Unpublished.

In 2006 David Poulton worked for Martec Industries in Rochester, New York, as a laborer. Poulton had a history of low back claims, and had filed workers comp claims in 1998 and 2000. When he visited his treating physician in June 2006, he had the same old complaint: his back hurt, as it had virtually every day since his first injury in 1998. He told his doctor that he re-injured his back at work the prior day while lifting materials.

At the 1998 appointment Poulton told his doctor he wanted to quit working.

The doctor disabled him from work citing "old injuries and his continued decline." The doctor characterized the situation as involving "episodic increases in pain" that had troubled Poulton for several years. The doctor, in fact, had been encouraging Poulton to stop working prior to this particular visit. Poulton testified that he "had this type of pain even before [he] started working at Martec" and, in fact, had felt the same type of intense pain in the "same area of the body, same area of the back" as recently as one month before the June 7, 2006 incident. Furthermore, claimant's supervisor testified that claimant regularly complained of back pain and that, before June 2006, claimant stated that he might stop working and seek permanent disability benefits as a result of a back injury sustained at his former job.

An independent medical exam determined that Poulton suffered from degenerative disc disease and that his disability was caused primarily by preexisting problems.

So is this a new injury, as reported by Poulton, or simply the recurrence of an old one?

Ruling
The Workers' Compensation Board ruled in Poulton's favor, determining that the lifting incident at Martec aggravated the pre-existing condition. However, this ruling was reversed by the appellate division of the NY supreme court, which found no evidence of a new injury and remanded the case for further consideration.
The Appellate Court said "Considering the foregoing and viewing the record as a whole, we conclude that the Board's finding that claimant sustained a new injury on June 7, 2006 is not supported by substantial evidence." In other words - Poulton had a pre-existing degenerative condition.

Poulton is likely to go back into workers' compensation court, and this time will bring in the insurance company from 1998.

The future for Poulton.
The interesting thing about this decision - finding that there was no "new" injury - is that Poulton may end up with an award against the prior insurer but his lost time wages and scheduled loss of use award will be based on what he earned in 1998, as opposed to 2010. This will likely result in a much lower potential recovery.

Case: Pulton v. Martec, 2010 NY Slip Op 06035, N.Y. App. Div. 3rd Dep't, decided July 7, 2010.

Appeals of decisions in New Jersey Workers' Compensation cases are made directly to the Appellate Division. The 'scope of review' by the appellate Division is "the same as that on appeal in any non-jury case, that is, whether the findings made could reasonably have been reached on sufficient credible eveidnece present in the record, considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965), quoting State v. Johnson, 42 N.J. 146, 162 (1964). Thus, the findings of fcact made by a judge of compensation "are entitled to substantial deference." Ramos v. M & F Fashions, Inc., 154 N.J. 583, 294 (1998).

But how does the appeals Court review cases where there was a significant split - a disagreement - between the doctors who testified in the workers' compensation case? How does the Appellate Divison review a case where the Comp Judge agrees with one side's doctors over the other? Read More...

A recent case (discussed in this post) explores the difficulties of defending claims where treatment for a subsequent condition (in this case, HIV/AIDS) worsens an established disability. Does the employer's liability increase? Read More...

This entry discusses a recent Appellate decision where the court found that subsequent employment DID aggravate a prior comp injury. Contrast this decision with Zrno, another recently decided case on 'subsequent' injury.
The petitioner in Singeltary v. WaWa, A-5723-07T3, App. Div. decided April 23, 2009 (published version not available as I blog this) worked in a convenience store for 20 years. In 1992 and 2001 she was injured in work-related slip-and-falls involving her cervical spine. At the time of the incidents, AIG was the carrier. In 2002, WaWa became self-insured for workers' compensation purposes in New Jersey. In 2006 the claimant was told she needed a cervical fusion surgery.

The question was: Who was to pay? AIG or WaWa?
Read More...

This entry discusses a recent Appellate decision where the court found that subsequent employment did NOT aggravate a prior comp injury. Contrast this decision with Singletary, another recently decided case on 'subsequent' injury.

In Zrno v. Wegmans (A-4025-07T1)(App. Div. decided April 27, 2009, published version not available as I blog this) the employer (Wegmans) appealed the Order of the presiding workers' comp judge finding that the claimant's current occupational disability was the result of his employment at Wegmans, rather than an aggravation of a prior wc injury. The prior injury was compensated by the prior employer (Wakefern Food Corp.).

The claim petition did not allege that the claimant had actually sustained an injury while employed at Wegmans. Read More...

Here are the ingredients:

a. One totally disabled claimant;
b. Nine different employers; and
c. A Workers Comp Judge who didn't apply the law correctly.

Result: Appeal and reversal.

Read More...