State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 2, 2016 521584 

________________________________

In the Matter of the Claim of

CHRISTOPHER HARTIGAN,

Respondent,

v

ALBANY COUNTY SHERIFF'S MEMORANDUM AND ORDER

DEPARTMENT et al.,

Appellants.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: April 29, 2016

Before: McCarthy, J.P., Egan Jr., Rose and Aarons, JJ.

__________

Walsh & Hacker, Albany (Peter J. Walsh of counsel), for

appellants.

The Law Firm of Alex Dell, Albany (Nicholas A. Fusco of

counsel), for Christopher Hartigan, respondent.

__________

Rose, J.

Appeal from a decision of the Workers' Compensation Board,

filed December 3, 2014, which ruled that claimant sustained an

accidental injury arising out of and in the course of his

employment.
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Claimant, a correction officer, filed a claim for workers'

compensation benefits asserting that he suffered a work-related

myocardial infarction on the morning of April 4, 2013. Following

a hearing, a Workers' Compensation Law Judge found that claimant

had sustained a work-related injury and awarded him benefits. 

The self-insured employer and its third-party administrator

(hereinafter collectively referred to as the employer) filed an

application for review and the Workers' Compensation Board upheld

the decision of the Workers' Compensation Law Judge. The

employer now appeals. 

Initially, we need not consider the applicability of

Workers' Compensation Law § 21 inasmuch as the Board's finding of

causal relationship was not based upon the presumption contained

therein but, instead, upon the medical evidence and testimony

adduced at the underlying hearing (see Matter of Roberts v

Waldbaum's, 98 AD3d 1211, 1211-1212 [2012]; Matter of Tompkins v

Sunrise Heating Fuels, 271 AD2d 888, 888 [2000]). Turning to the

merits, it was claimant's burden to establish by competent

medical evidence that the myocardial infarction he sustained was

causally related to his employment (see Matter of Venditti v

D'Annunzio & Sons, 128 AD3d 1303, 1304 [2015]; Matter of Anderson

v New York City Dept. of Design & Constr., 121 AD3d 1146, 1147

[2014]). Where medical proof is relied upon to demonstrate such

a causal relationship, it must signify a probability of the

underlying cause that is supported by a rational basis and not be

based upon a general expression of possibility (see Matter of

Lichten v New York City Tr. Auth., 132 AD3d 1219, 1219-1220

[2015]).

Here, claimant testified that, on the morning in question,

after delivering two heavy food carts from the correctional

facility's kitchen to certain cell tiers, he experienced chest

pain, began to sweat profusely and had difficulty breathing. 

After claimant's second visit to his employer's medical

department due to these symptoms, a colleague drove him to a

hospital where he was later diagnosed as having sustained a
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myocardial infarction at some time on that day. Although two

cardiologists testified that claimant had multiple risk factors,

including obesity, high blood pressure, hyperlipidemia, diabetes

and a family history of heart disease, neither one offered an

opinion as to whether claimant's specific activities at work that

morning were a cause of his myocardial infarction. After

conducting an independent medical examination of claimant, the

employer's medical expert opined that claimant's myocardial

infarction was not caused by work-related physical activity and,

instead, was suffered hours later after he underwent a stress

test at the hospital. This expert's opinion as to the timing of

the infarction was based in part on a "bump" in cardiac enzymes

shown in a blood test performed after the stress test.

To counter this opinion as to causal relationship, claimant

relies on the testimony of his treating cardiologist. Due to his

unfamiliarity with claimant's work activities on the morning in

question, claimant's cardiologist initially declined to offer an

opinion as to whether his myocardial infarction was causally

related to his employment. In response to a hypothetical posing

the type of physical activity that claimant had engaged in that

morning, the cardiologist stated only that, based on claimant's

risk factors, any stress or physical exertion could have caused

the myocardial infarction. Later, when asked to clarify this

opinion, he stated, "I don't know how was (sic) [claimant's] work

situation or what happened that particular day, but stress . . .

can be [an] aggravating factor in the presence of risk factors." 

While the Board is entitled to resolve conflicting medical

opinions, there must be "medical opinion evidence regarding the

probability of a causal relationship supported by a rational

basis; a general expression of possibility will not suffice"

(Matter of Dizenzo v Henderson & Johnson, 114 AD3d 1014, 1014

[2014]; see Matter of Zehr v Jefferson Rehabilitation Ctr., 17

AD3d 811, 813 [2005]). Here, because the testimony of claimant's

treating cardiologist expressed merely the possibility that the

physical activities in which claimant engaged could have caused

his myocardial infarction, such testimony falls short of the
-4- 521584 

required degree of medical proof. As a result, the Board's

determination based upon that testimony lacked a rational basis

and was not supported by substantial evidence (see Matter of

Norton v North Syracuse Cent. School Dist., 59 AD3d 890, 891

[2009]; Matter of Zehr v Jefferson Rehabilitation Ctr., 17 AD3d

at 813).

McCarthy, J.P., Egan Jr. and Aarons, JJ., concur.

ORDERED that the decision is reversed, without costs, and

matter remitted to the Workers' Compensation Board for further

proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court