State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 9, 2015 520120 

________________________________

In the Matter of the Claim of 

TIFFANY HILL-CHAPMAN, as 

Administrator of the Estate 

of GERALD CHAPMAN, Deceased,

Respondent,

v MEMORANDUM AND ORDER

EARLYBIRD DELIVERY SYSTEMS,

LLC, et al.,

Appellants.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: May 26, 2015

Before: Lahtinen, J.P., McCarthy, Rose and Clark, JJ.

__________

Malapero & Prisco, LLP, New York City (David H. Allweiss of

counsel), for appellants.

Eric T. Schneiderman, Attorney General, New York City

(Steven Segall of counsel), for Workers' Compensation Board,

respondent.

__________

Lahtinen, J.P.

Appeal from a decision of the Workers' Compensation Board,

filed January 27, 2014, which ruled that decedent's death arose

out of and in the course of his employment.

Gerald Chapman (hereinafter decedent) collapsed and died

while working as a dispatcher for the employer on December 25,
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2011. After his death, claimant, as administrator of his estate,

filed a claim for death benefits on behalf of decedent's two

minor children. Following a hearing, a Workers' Compensation Law

Judge established the claim. Upon review, the Workers'

Compensation Board affirmed, finding that the employer and its

workers' compensation carrier (hereinafter collectively referred

to as the employer) had failed to rebut the presumption contained

in Workers' Compensation Law § 21. The employer now appeals.

Security videotape taken of the dispatch office on the

night of decedent's death shows him sitting at his work station

in apparent discomfort before eventually collapsing on the floor. 

His body was found several hours later, and an autopsy determined

that decedent died from a pulmonary embolism due to deep venous

thrombosis of the lower extremities with an unknown cause. 

"Unexplained or unwitnessed accidents which occur in the

course of employment are presumed, pursuant to Workers'

Compensation Law § 21 (1), to arise out of such employment"

(Matter of Estate of Moody v Quality Structures, Inc., 117 AD3d

1212, 1212 [2014], lv dismissed 24 NY3d 990 [2014] [internal

quotation marks and citations omitted]; see Matter of Stevenson v

Yellow Roadway Corp., 114 AD3d 1057, 1058 [2014]). The employer

may rebut the presumption by providing "substantial evidence to

the contrary" (Workers' Compensation Law § 21; see Matter of

Babson v Finch Pruyn & Co. Inc., 25 AD3d 936, 937 [2006]). 

The employer presented the independent medical report of

Vinay Das, an internal medicine specialist, who opined that

venous thrombosis of the lower extremities can be an inherited

condition or acquired and, although he identified several

acquired causes for this condition, he could not determine the

cause of decedent's fatal embolism or whether it was related to

his work. In light of the fact that the cause of decedent's

embolism was unexplained, the Board properly evoked the

presumption of compensability (see Matter of Estate of Moody v

Quality Structures, Inc., 117 AD3d at 1213; Matter of Thompson v

Genesee County Sheriff's Dept., 43 AD3d 1252, 1253 [2007]). We

reject the employer's contention that the Board erred in denying

its request to cross-examine the medical examiner who performed

the autopsy. Both the medical examiner and Das concluded that
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decedent died from a fatal embolism of unknown cause and, "[i]n

the absence of a viable difference in the expert opinions

expressed in the medical reports, no prejudice accrues as a

result of the denial of the right to cross-examine a medical

expert" (Matter of Bryan v Borg-Warner Automotive, 293 AD2d 856,

857 [2002]; see Matter of Robideau v Van Rensselaer Manor, 56

AD3d 866, 867 [2008]). 

The employer also argues that it was improperly denied an

opportunity to obtain decedent's medical records. We note that

the Board did not resolve or even acknowledge this issue in its

decision, despite it being raised in the employer's application

for review. Therefore, the matter must be remitted in order for

the Board to address this issue (see Matter of Tucker v Fort

Hudson Nursing Home, 65 AD3d 1442, 1442 [2009]).

McCarthy, Rose and Clark, 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