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McKeever v. Penney

October 18, 2010

THOMAS MCKEEVER, PETITIONER-APPELLANT,
v.
J.C. PENNEY, RESPONDENT-RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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. ...


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