Matter of Kilcullen v. AFCO/Avports Management LLC , 30 N.Y.S.3d 375 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 21, 2016 520118
________________________________
In the Matter of the Claim of
RITA KILCULLEN,
Respondent,
v
AFCO/AVPORTS MANAGEMENT LLC MEMORANDUM AND ORDER
et al.,
Appellants.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: March 25, 2016
Before: McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.
__________
Walsh and Hacker, Albany (Peter J. Walsh of counsel), for
appellants.
The Law Firm of Alex C. Dell, Albany (George P. Ferro of
counsel), for Rita Kilcullen, respondent.
Eric T. Schneiderman, Attorney General, New York City
(Steven Segall of counsel), for Workers' Compensation Board,
respondent.
__________
Clark, J.
Appeal from a decision of the Workers' Compensation Board,
filed March 26, 2014, which ruled that the death of claimant's
husband was causally related to his employment and awarded
workers' compensation benefits.
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On December 14, 2010, claimant's husband (hereinafter
decedent) was employed as a process operator assigned to Albany
International Airport's glycol facility, which, among other
things, produces the glycol necessary for deicing the aircraft
and filtering the glycol from runoff water in the airport's
drainage system. During his shift that day, decedent sustained a
myocardial infarction and collapsed while assisting his
coworker's response to a frozen fluidization valve in the
facility's treatment system that, if not fixed promptly, could
have impacted the proper functioning of the facility's treatment
system. Having suffered brain damage from the myocardial
infarction, decedent never regained consciousness following his
collapse and died on December 21, 2010. Thereafter, claimant,
decedent's spouse, filed a claim for workers' compensation
benefits and a claim for death benefits, each of which the
employer and its workers' compensation carrier (hereinafter
collectively referred to as the employer) controverted.
Following hearings, a Workers' Compensation Law Judge found that
decedent's work activities contributed to the myocardial
infarction and that decedent's resulting death arose out of and
in the course of his employment. On administrative review, the
Workers' Compensation Board agreed with these findings, and the
employer now appeals.
We affirm. Initially, we note that the Board's
determination of a causal relationship was not based upon the
presumption contained within Workers' Compensation Law § 21 (1),
but upon the medical evidence and testimony from the hearing
therein (see Matter of Roberts v Waldbaum's, 98 AD3d 1211, 1211
[2012]; Matter of Tompkins v Sunrise Heating Fuels, 271 AD2d 888,
888 [2000]; cf. Matter of Thompson v Genesee County Sheriff's
Dept., 43 AD3d 1252, 1253 [2007]). "In reviewing a Board
decision concerning the medical question of causality, we will
look to the record to determine whether, read as a totality, it
contains substantial and adequate opinion evidence to support the
Board's finding" (Matter of Gallo v Village of Bronxville Police
Dept., 120 AD3d 849, 850 [2014] [internal quotation marks and
citation omitted]). "A heart injury precipitated by work-related
physical strain is compensable, even if a pre-existing pathology
may have been a contributing factor and the physical exertion was
no more severe than that regularly encountered by the claimant"
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(id. [internal quotation marks and citations omitted]; see Matter
of McCormick v Green Bus Lines, 29 NY2d 246, 248 [1971]; Matter
of O'Donnell v Town of Moriah, 58 AD2d 702, 702 [1977]).
Here, the testimony and evidence in the record demonstrates
that shortly before decedent collapsed, he was instructed to add
insulation in an attempt to fix the frozen valve and, to do so,
traveled outside at night across snow-covered ground in freezing
temperatures to locate and retrieve additional insulation from a
storage structure located at least 500 feet away. In addition,
Thomas Martin, the lead process operator, explained in his
testimony that if decedent and his colleague were unable to
quickly fix the frozen valve that evening, the glycol treatment
facility at the airport would have "shut[] down." Based upon the
foregoing, Raymond Basri, a doctor specializing in internal
medicine with 25 years of experience in diagnostic cardiology who
reviewed decedent's medical records, opined that decedent's work
activities immediately prior to his collapse, in combination with
the environmental conditions at that time and the physical and
emotional stress associated with having to assist with the timely
repair of the frozen valve, were significant contributing factors
to decedent's acute myocardial infarction and resulting death.
While the cardiologist who reviewed decedent's medical
records on behalf of the employer was unable to causally relate
decedent's myocardial infarction to decedent's employment, given
that decedent's medical history included certain preexisting
conditions and risk factors for his heart disease, the Board was
free to resolve this conflicting medical testimony in claimant's
favor (see Matter of Roberts v Waldbaum's, 98 AD3d at 1211;
Matter of Tompkins v Sunrise Heating Fuels, 271 AD2d at 888-889).
In so doing, we also note the view expressed by the Court of
Appeals that "[t]he rule as to what is strenuous work is not
readily to be generalized to fit all men [or women] and all cases
alike. All men [and women] suffer some adverse physical
deterioration from the wear and tear of life; but one man [or
woman] with inadequate cardiac reserve who continues nevertheless
in employment may find the performance of physical work too
strenuous for him [or her] at a particular time and under
particular conditions when the same work would not adversely
affect other men [or women] under any conditions; or even that
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particular man [or woman] at other times under the similar
physical conditions" (Matter of McCormick v Green Bus Lines, 29
NY2d at 248). Accordingly, despite evidence in the record that
might support a contrary result, we find that substantial
evidence in the record supports the Board's determination that
decedent's myocardial infarction was causally related to his
employment (see id. at 248-249; Matter of Roberts v Waldbaum's,
98 AD3d at 1212; Matter of Tompkins v Sunrise Heating Fuels, 271
AD2d at 888; Matter of Losso v Tesco Traffic Servs., 248 AD2d
812, 813 [1998]).
McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.
ORDERED that the decision is affirmed, with costs to
claimant.
ENTER:
Robert D. Mayberger
Clerk of the Court