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Matter of Issayou v Issayuou Inc.

Supreme Court of New York, Appellate Division, Third Department

 July 25, 2019, Decided ; July 25, 2019, Entered

528107

Opinion

 [**617]  [*1277] Rumsey, J. Appeal from a decision of the Workers' Compensation Board, filed August 14, 2018, which ruled that claimant did not sustain a causally-related injury and denied her claim for workers' compensation benefits.

 [**618] Claimant sustained a myocardial infarction and collapsed on March 25, 2016 while cleaning brushes at the hair salon that she had owned and operated for 17 years, and she received emergency medical care. It was later determined that claimant had advanced, triple vessel, obstructive coronary artery disease, and she underwent several procedures, including angioplasties and the placement of multiple stents in her obstructed arteries. In June 2017, claimant filed a claim for workers' compensation benefits, asserting that interactions with customers on March 25, 2016 caused her heart attack and consequential depression and anxiety. The employer and its workers' compensation carrier [***2]  (hereinafter collectively referred to as the carrier) controverted the claim. Following hearings at which conflicting medical testimony was offered, a Workers' Compensation Law Judge disallowed the claim, finding that claimant's heart attack did not arise out of and in the course of her employment. The Workers' Compensation Board agreed, and claimant appeals.

We affirm. ] "Whether a compensable accident has occurred is a question of fact to be resolved by the Board and its determination will not be disturbed when supported by substantial evidence" (Matter of Buccinna v Pembroke Cent. Sch. Dist., 165 AD3d 1369, 1370, 85 NYS3d 260 [2018] [internal quotation marks and citations omitted]). ] "Although Workers' Compensation Law § 21 (1) provides a presumption that an accident that occurs in the course of employment also arises out of that employment, the statutory presumption cannot be used to establish that an accident [****2]  occurred in the first instance, and it does not wholly relieve a claimant of the burden of demonstrating that the accident occurred in the course of, and arose out of, his or her employment" (Matter of Ferrari v Darcon Constr. Inc., 170 AD3d 1392, 1393, 95 NYS3d 480 [2019] [citations omitted]). Claimant bore the burden of establishing, by competent medical evidence, that a causal connection existed between her heart attack and other [*1278]  medical conditions and her employment (see [***3]  Matter of Granville v Town of Hamburg, 136 AD3d 1254, 1255, 25 NYS3d 746 [2016]).

Claimant testified that, after she opened the salon around 9:00 a.m. on March 25, 2016, an older woman came to the entrance of the salon and asked—in a tone that claimant characterized as "bad" or "mean"—something like, "Are you still [working] here?" and the woman then left. About 10 to 15 minutes later, claimant agreed to perform hair services for a walk-in customer, and the services took an extra 30 minutes to complete for the customer, who claimant described as "difficult" and "nasty." While claimant was working on her hair, the customer asked claimant if she practiced a particular religion and, when claimant said no, the customer said that if she had known that, she would not have come to the salon; after the work was completed, the customer ultimately left without paying for the service. Claimant then washed some brushes and, about 10 to 15 minutes later, she began experiencing chest pain and shortness of breath, later determined to have been a heart attack, called 911 and has not returned to work. In support of her claim, claimant submitted the report of Lester Ploss, an internal medicine physician, who examined her and reviewed her medical records. Ploss issued a report [***4]  acknowledging that claimant had preexisting, asymptomatic coronary artery disease and concluded that the two incidents that occurred at work on March 25, 2016—which he characterized as "very emotional events"—contributed to her heart attack and cardiac problems. Although Ploss conceded that claimant had 99% occlusion or blockage in one artery [**619]  and "significant" occlusion in another artery that were not related to her work, he opined that there was a "direct relationship" between her heart attack and the incidents in the salon.

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174 A.D.3d 1277 *; 105 N.Y.S.3d 616 **; 2019 N.Y. App. Div. LEXIS 5814 ***; 2019 NY Slip Op 05834 ****; 2019 WL 3326259

 [****1]  In the Matter of the Claim of Carmen Issayou, Appellant, v Issayuou Inc. et al., Respondents. Workers' Compensation Board, Respondent.

Subsequent History: Leave to appeal denied by Matter of Claim of Carmen Issayou v Issayuou Inc, 2020 N.Y. LEXIS 88 (N.Y., Feb. 13, 2020)

CORE TERMS

claimant, heart attack, customer, stress, artery, salon

Workers' Compensation & SSDI, Administrative Proceedings, Hearings & Review, Judicial Review, Standards of Review, Substantial Evidence, Business & Corporate Compliance, Workers' Compensation & SSDI, Compensability, Course of Employment, Arising Out of Employment, Inferences & Presumptions, Evidence, Burdens of Proof, Arising Out of Employment, Causation, Witnesses, Injuries, Psychological Injuries