On appeal from the Department of Labor, Division of Workers' Compensation.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Alvarez.
In this workers' compensation case, appellant, William Cartwright, appeals from a judgment dismissing his petition. The judge of compensation found that the cerebral vascular accident (CVA) appellant suffered did not occur in the course of his employment or arise out of the employment. Appellant argues that he sustained his burden of proving that the CVA he suffered occurred in the course of his employment and arose out of the employment and that the contrary decision of the judge of compensation was not supported by the evidence. We reject appellant's argument and affirm.
Appellant was employed by Lucent Technologies (Lucent) as a watch engineer. His job responsibilities required him to perform maintenance inspections and to shut down and reenergize systems when needed. He worked at Lucent's Murray Hill facility.
Appellant was scheduled to begin his work shift on March 5, 2002 at 8:00 a.m. Records revealed that he clocked in at 6:23 a.m. He went to a locker room facility, where he was apparently preparing to take a shower or had just taken a shower. He never performed his assigned duties that day and was not seen in the workplace. The next morning a co-worker discovered appellant laying on the floor near a radiator in the shower area. Lucent's in-house physician was called to the scene. She observed slurred speech, left-sided facial droop and left-sided paralysis. She believed appellant had suffered a stroke. He was taken to a hospital, and the diagnosis was that he suffered a right-sided CVA.
When appellant fell, he landed on a radiator, which caused significant burns to various parts of his body. He may have also bumped his head on the radiator. However, appellant's claim petition was for the disability resulting from the CVA. He provided no medical evidence establishing any disability resulting from the burns. Therefore, the compensability of appellant's claim turned on whether the CVA was work related.
At the time of this incident, appellant was sixty-one years old. He had smoked two packs of cigarettes per day for thirty years. He suffered from hypertension and hypocholesterolemia, and he was obese. The day before he suffered the CVA, he experienced some symptoms, namely left arm weakness. He did not do anything about it or report it to anyone because he thought it would go away, which it did.
Appellant produced as his medical expert, Dr. Steven Klein. Klein testified on March 22, 2007. He assumed that the CVA occurred in Lucent's boiler room. He explained that the extremely high temperatures in the boiler room placed significant stress on appellant's heart, which in turn caused the CVA. He acknowledged that the CVA occurred first, and then appellant fell. Indeed, appellant's brother testified in the trial that appellant told him "he had a stroke and fell."
In a subsequent trial session, Lucent produced evidence clearly establishing that appellant did not work in the boiler room, he had not been in the boiler room, and the CVA occurred in a completely separate location, namely the locker room. Lucent produced the medical testimony of Dr. William S. Kritzberg. Kritzberg opined that appellant's predisposing conditions were the cause of his CVA, and that appellant's employment was not a causative factor.
Appellant then recalled Klein for further testimony. Confronted with irrefutable evidence that appellant had never been in the boiler room, Klein now suggested a new causation theory. He testified that appellant fell and bumped his head on the radiator, and that the head trauma caused the CVA. He also suggested that the heat from the radiator would have produced heat shock, which causes the heart to pump much harder, and which would have also contributed to the CVA. Under this theory, of course, Klein acknowledged that the entire theory of the incident was reversed, namely that appellant fell first, and then suffered the CVA.
The judge of compensation found that appellant never worked in the boiler room and had not been in the boiler room at any time leading up to this incident. The judge of compensation reviewed, analyzed and evaluated the credibility of the competing medical experts. He found Kritzberg credible and Klein incredible. Based on Kritzberg's expert opinion, the judge of compensation found that the CVA was not work related. He explained it this way:
The Court rejects the testimony of Dr. Kl[ein] since his original testimony was based upon the fallacy of the petitioner working in a boiler room and suffering a stroke as a result of ...