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Court Affirms Award For Stroke Related To Unusually Stressful Work Conditions

By on January 12, 2012 in Claims with 2 Comments

Euliet Smith worked for Home Instead Senior Care as a caregiver for an elderly woman.  Smith said she cooked, cleaned, bathed and dressed the woman and was on duty 24 hours per day, seven days a week with every other weekend off.  She said it was the most stressful job she ever had.

Petitioner also testified that her client sometimes acted in a crazy manner.  She would run into the street or run outside when Smith was using the bathroom.  She described her client as almost like a baby. She said her client woke every hour or hour and a half.  The client would awaken and then attempt to do sewing, feed the cat or the birds or do gardening.  She further said that she complained about her work conditions to her employer but the employer did nothing.  Notably, the employer presented no lay testimony to counter the allegations petitioner made in court.

Events came to a head on July 30, 2008.  While Smith was sound asleep, the client woke up at 2:00 a.m. and “rushed” into Smith’s room and let out a very loud scream. Smith suddenly woke and found herself shivering and shaking.  It took her half an hour before she felt well enough to respond to the client’s needs.  She gave the client some milk and they both went back to bed. 

Around 5:30 a.m. on the same morning Smith awoke again and felt that something was pulling on her face.  Her speech was “dreary.”  She found herself drooling and could barely speak.  She called her employer and asked for someone to relieve her so she could go to the hospital. When no one came, she called a relief worker who worked on alternate weekends. Smith finally got to the ER and was diagnosed  as having suffered a stroke.  She was discharged from the stroke unit on August 5, 2008.

The issue in this case at trial did not concern the diagnosis, as the stroke was conceded.  The issue focused on whether the stroke was “idiopathic” or not work related.  To that extent, the case involved a battle between experts.  Petitioner produced Dr. Leon Waller, a board certified internist who has treated stroke patients for over 30 years.  He said that there was no other apparent cause for the stroke:  hypertension or smoking for instance. 

According to Dr. Waller, sudden fright can increase blood pressure leading to “vascular spasm” and “intracranial hemorrhage.”  The incident when the client screamed in the middle of the night likely caused a sudden spike in her blood pressure, which in turn caused an intracranial hemorrhage. 

Respondent produced Dr. Steven  Lomazow, a board certified neurologist who specializes in treating headaches but also has treated stroke patients.  He concluded that the stroke was idiopathic, meaning that there was no known cause.  He disagreed with Dr. Waller and stated that waking up in fright would not cause a stroke.  Finally, he said that there was nothing peculiar in her job which would make a stroke more likely.

The judge of compensation asked Dr. Lomazow whether a person could get excited, experience a rise in blood pressure and suffer a stroke.  The respondent’s expert answered that this was possible but not what happened in this case. The judge of compensation found petitioner’s expert to be more credible and was impressed by the “suddenness and nature of petitioner’s awakening” and its likely link to surging blood pressure.  The judge awarded 10% permanent partial disability for numbness in petitioner’s left thumb.  Most of her symptoms had apparently resolved by the date of the award.

Respondent appealed and argued petitioner’s expert was not qualified.  The Appellate Division disagreed and noted that Dr. Waller had treated many stroke patients.  The court also said it was not fatal to his testimony that Dr. Waller did not cite medical treatises in support of his position.  It noted that neither did respondent’s expert cite to any treatises. The court also observed that Dr. Lomazow admitted that Dr. Waller’s explanation was possible, even if it was not likely.  One point that the court discredited was Dr. Lomazow’s statement that petitioner’s workload was normal.  The court said that respondent’s doctor disregarded “the extended, horrendously stressful work experience she described in her testimony, which was clearly ‘in excess of the wear and tear of her daily living.’” 

There are a number of points to consider in this case.  Above all, it is almost always necessary to rebut strong factual testimony when that testimony goes to the heart of the case. This case was about work stress, and petitioner described extremely stressful work conditions.  No witness testified for respondent.  Second, when medical expertise is critical, scientific studies are extremely helpful.  The failure of respondent’s expert to rely on scientific studies undercut respondent’s argument that there was no scientific support for the theory of petitioner’s expert.

This case can be found at Smith v. Home Instead Senior Care, A-3173-10T3 (App. Div. January 11, 2011).

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About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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There Are 2 Brilliant Comments

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  1. Good Morning John,

    Interesting case. Where was this case heard? Who was the ALJ?

    Thanks,
    Regina

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