Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

McKeever v. Penney


October 18, 2010


On appeal from the Department of Labor, Division of Workers' Compensation, Claim Petition No. 2005-1151.

Per curiam.


Argued September 13, 2010

Before Judges Lisa and Alvarez.

Thomas McKeever's employee's claim petition was dismissed by the Division of Workers' Compensation because he did not establish causation for his disability under the standards applicable to work-related "cardiovascular or cerebral vascular" events, N.J.S.A. 34:15-7.2. He appeals, and we affirm.

Petitioner's employment with respondent J.C. Penney commenced in 1989. At the time of the incident at issue, petitioner was employed as a loss prevention internal officer at a store located in New York. He had previously performed computer research from the Jersey City store and still did personal banking from that location.

Petitioner happened to be in the Jersey City store on May 21, 2004, when he saw a customer behaving in a suspicious manner. He followed the customer, eventually breaking into a run as the customer grabbed some merchandise and fled the store. Petitioner, after running approximately fifty yards, experienced a "bright in my eyes" and a sensation of "floating." His recollection was that he walked to a nearby bank and returned to the store manager's office. Petitioner's mother was called to pick him up, and she drove him home. He was taken by ambulance that evening to Clara Maas Hospital, and was treated and released without a diagnosis.

Late in the evening of May 23, 2004, two days later, petitioner returned to the hospital. He was diagnosed as having suffered an acute stroke or strokes. He was hospitalized for two weeks and treated inpatient at a rehabilitation facility for several weeks thereafter.

At the time, petitioner was thirty-six years old, physically active and healthy. He now wears a brace on his right leg, has no sensation of hot or cold on the right side of his body, has problems sleeping and with short-term memory, walks with a cane, and is unable to work.

The central issue at the workers' compensation hearing, and on appeal, is whether petitioner met his burden of proof pursuant to N.J.S.A. 34:15-7.2. That statute provides that claims for compensation due to injuries resulting from cardiovascular or cerebral vascular causes must be proven: by a preponderance of the credible evidence that the injury . . . 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.

Material degree means an appreciable degree or a degree substantially greater than de minimis. [N.J.S.A. 34:15-7.2.]

Petitioner's expert, Dr. Peter Crain, is a diplomate of the American Board of Psychiatry and Neurology, but is board certified only in psychiatry. Crain had ten years of experience in treating neurologic disorders early in his career but has specialized in psychiatric treatment since 1993.

Crain attributed petitioner's stroke to "hemodynamic insufficiency" resulting from the blood "shunting . . . away from some areas of the brain" as he ran after the suspected shoplifter. In other words, Crain attributed the cerebral vascular incident to a compromised blood supply to the brain as a result of the physical and emotional exertion of the chase. His opinion was based on his review of petitioner's medical records, including MRI readings, and the infrequency of strokes occurring in patients as young as petitioner. He also opined that as a result of this incident petitioner was 100% disabled.

Respondent's expert, Dr. Charles Effron, a Board Certified neurologist, testified that to a reasonable degree of medical certainty, the chase after the shoplifter and the subsequent stroke were unrelated. He initially believed the stroke resulted from a condition known as "hypercoagulable state," but discarded that opinion after further study of petitioner's medical records the night before, and morning of, the workers' compensation hearing. Effron estimated petitioner's disability to be fifteen percent neurologic in nature, albeit unrelated to this incident.

Effron emphatically rejected Crain's hemodynamic insufficiency theory of causation. He testified in essence:

[t]he idea that the brain is gonna shunt blood two days later, from the posterior circulation to the anterior circulation, there's no basis for that. There's no basis for that in the history, and there's no basis for that in any pathophysiology in the anatomy of the brain and circulation. That wouldn't happen. Doesn't happen. Didn't happen.

As the trial court stated, Effron "explained that there is auto-regulation within the brain itself" which would prevent the flow of blood away from the brain. This flow of blood away from the brain was essential to Crain's theory of causation.

Crain's explanation, Effron said, was only possible if petitioner had some congenital abnormality of the blood vessels or suffered significant chronic blood pressure difficulties, and, if that were the case, petitioner would have previously encountered difficulties during exercise. In other words, Effron testified that Crain's theory of causation was invalid because the brain of a man running a short distance, a man of petitioner's young age and good health, would not have lost blood to the extent a cerebral vascular event would result.

Effron attempted to testify as to his second theory of causation, developed immediately prior to his day in court. But because he had not prepared a timely supplemental report, the workers' compensation judge barred Effron's testimony on that issue; he was limited to the contents of his initial report. It is undisputed that Effron complied with the court's order on direct examination, merely proffering the reasons that he did not consider Crain's theory to be valid, and reiterating that in his opinion there was no connection between the chase and the stroke.

When asked on cross-examination, however, to explain the reason the stroke occurred, Effron opined that it resulted from a vertebral artery dissection, his second theory of causation. He explained that vertebral artery dissection is "one of the more common causes" of strokes in younger individuals. When vertebral artery dissection occurs, the lining of the vertebral artery pulls away from the side wall. In some individuals there is a genetic predisposition, although in other instances the dissection results from direct trauma.

When asked if this dissection could not have been the product of petitioner's chase, Effron said "can I say it's not related to the running after a thief? Absolutely that's nothing to do with it. There's no -- . . . running is, you know, running after somebody, the description of the activity here is not a risk factor for dissection."

In her decision, the workers' compensation judge gave substantial credence to Effron's opinion. As she expressed it, Effron's status as a board certified neurologist with greater "training and experience" regarding cerebral vascular accidents, entitled his opinion to greater weight. The judge also noted that Effron was far more familiar than was Crain with the details of the incident, and of the health status of petitioner at the time it occurred.

The scope of our review is limited to "whether the findings of the [j]udge of [c]ompensation could reasonably have been reached on sufficient credible evidence present in the whole record, after giving due weight to his expertise and his opportunity of hearing and seeing the witnesses." Kozinsky v. Edison Prods. Co., 222 N.J. Super. 530, 537 (App. Div. 1988); see Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). That standard is highly deferential. Ibid. We do not independently assess the evidence as if we were a court of first instance. Sager v. O.A. Peterson Const., Co., 182 N.J. 156, 164 (2004) (citing to State v. Locurto, 157 N.J. 463, 471 (1999)). A trial judge's findings are binding "when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Furthermore, it is the petitioner who bears the burden of proof in justifying an award of compensation, and he must meet that burden by a preponderance of the evidence. See N.J.S.A. 34:15-7.2.

Moreover, a court's factfinding prerogatives include assessing the weight to accord to an expert's opinion, and the discretion to choose between competing opinions. See State v. M.J.K., 369 N.J. Super. 532, 549-52 (App. Div. 2004), appeal dismissed, 187 N.J. 74 (2005).


Petitioner first contends that the court's greater reliance upon Effron's testimony was reversible error because that expert's theory of causation was not provided until the morning of the hearing. But it is undisputed that Effron's opinion as expressed in his written report covered more ground than causation. It included, in pertinent part, the conclusion that, to a reasonable degree of medical certainty, there was no causal relationship between the stroke and the chase.

The report, obviously, could not have included Effron's determination that the stroke was caused by a vertebral artery dissection because he did not formulate that opinion until the night prior to, or the morning of, the hearing. Despite this omission, however, once petitioner's attorney opened the door to the testimony by asking Effron to explain his theory of causation in cross-examination, the judge was entitled to include the response in formulating her decision. Once the door was opened, it was permissible for the court to rely upon that testimony just as it did with all the other evidence. See Gaido v. Weiser, 227 N.J. Super. 175, 187-89 (App. Div. 1988), aff'd, 115 N.J. 310 (1989). Therefore the judge did not err by including that testimony in her analysis.


Petitioner next contends that the decision could not have been reasonably reached by the court on the credible testimony in the record; that it would not lead a reasonably cautious mind to a given conclusion. See Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 72 (App. Div. 1989) (quoting Ciuba v. Irvington Varnish & Insulator Co., 27 N.J. 127, 139 (1958)). Petitioner suggests instead that the credible evidence leads inescapably to his theory that the cerebral vascular accident was caused by the physical or emotional strain of chasing after the would-be thief within the intendment of N.J.S.A. 34:15-7.2.

Crain testified at length and in detail as to his opinion connecting the chase and the stroke. The court's decision, however, to discount his theory because he was not as well qualified as Effron, or as familiar with the circumstances under consideration, is not an abuse of discretion.

As the court said: "Effron's testimony and explanation [was] most credible and convincing . . . ." He "is a board certified neurologist with extensive training and experience studying and treating stroke victims." Crain's opinion, in contrast, "simply makes no sense given the paramount role of the brain," it was "not persuasive in light of [petitioner's] activity level prior to the incident."

And we believe that to be the crux of the matter. Our review of a judge of compensation's decision is highly deferential. We only decide whether there was sufficient credible evidence from which the judge could have reasonably made her findings. See Kozinsky, supra, 222 N.J. Super. at 537; Close, supra, 44 N.J. at 599.

Given the difference in the experts' qualifications and experience, as well as their familiarity with petitioner's circumstances, the judge of compensation reasonably exercised her discretion in giving greater credence to Effron's opinion over Crain's opinion. Therefore, she had sufficient, credible evidence upon which she could have reasonably based her decision to dismiss the claim. Absent causation, there is obviously no basis for an award. Petitioner simply did not meet his burden of proof by a preponderance of the evidence.


Petitioner also contends that he is entitled to benefits under the New Jersey Workers' Compensation Act because he suffered a compensable injury that arose in the course of employment. We do not reach that issue in light of the above discussion.



© 1992-2010 VersusLaw Inc.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.