In the Matter of the Claim ofLYUBOV KAPLAN,Appellant,vNEW YORK CITY TRANSIT MEMORANDUM AND ORDERAUTHORITY,Respondent.WORKERS’ COMPENSATION BOARD,Respondent.________________________________Calendar Date: May 3, 2018Before: McCarthy, J.P., Devine, Clark, Aarons and Pritzker, JJ.__________Grey & Grey, LLP, Farmingdale (Sanjai Doobay of counsel),for appellant.Jones Jones LLC, New York City (David S. Secemski ofcounsel), for New York City Transit Authority, respondent.__________McCarthy, J.P.Appeal from a decision of the Workers’ Compensation Board,filed February 23, 2017, which ruled that decedent’s death didnot arise out of and in the course of his employment and deniedclaimant’s claim for workers’ compensation death benefits.On July 11, 2015, claimant’s husband (hereinafterdecedent), who was employed to perform equipment maintenance forthe employer, collapsed in the locker room at work. Decedent waslater pronounced dead at the hospital, and the emergency roomrecords attributed his death to sudden cardiac arrest secondaryto cardiovascular disease due to old age. Claimant applied forworkers’ compensation death benefits and, following hearings, aWorkers’ Compensation Law Judge established the claim, findingthat the employer’s proof did not rebut the presumption ofcompensability in Workers’ Compensation Law § 21. The Workers’Compensation Board reversed, concluding that, even if thepresumption applies, it was rebutted and claimant had notsubmitted a medical opinion to support a finding that decedent’sdeath was causally-related to his employment. Claimant appeals.To be compensable under the Workers’ Compensation Law, anaccidental injury must arise both out of and in the course ofemployment (see Workers’ Compensation Law §§ 2 [7]; 10 [1]).While a presumption of compensability arises where an unwitnessedor unexplained death occurs during the course of employment (seeWorkers’ Compensation Law § 21 [1]), relieving claimant of theobligation to submit prima facie medical evidence of a causalrelationship, that presumption “may be rebutted if substantialevidence demonstrates that the death was not work related”(Matter of Lavigne v Hannaford Bros Co., 153 AD3d 1067, 1068[2017] [internal quotation marks and citation omitted]; seeMatter of Rasiej v Syska Hennesy Group Inc., 145 AD3d 1332, 1332[2016]).Like any administrative agency, the Board must renderdecisions based on the evidence contained in the recordpertaining to the particular case before it. Here, the Boardrelied on medical records apparently contained in the case filefor a separate claim filed by decedent based on a November 2014fall at work. Although the record in the present case indicatesthat George Brief — a physician who conducted a review ofdecedent’s medical records on behalf of the employer and issued areport — reviewed a one-page document containing hospitaldischarge instructions related to decedent’s treatment inNovember 2014, that one page is the only medical record from 2014that is included in the current record. Despite the absence inthis record of any other medical records related to the priorincident, the Board relied heavily upon medical records containedin the case file for the 2014 claim (compare 12 NYCRR 300.18 [b],[c], [e] [referring to the Board's "case file" when addressingthe proper content of a record on appeal]). The employer did notrequest that the Board rely on those 2014 records, nor did itadhere to the procedure for introducing additional evidence intothe administrative appeal that was not before the Workers’Compensation Law Judge (see 12 NYCRR 300.13 [b] [1] [iii]). TheBoard’s rule provides that, if that procedure is not followed,the Board “will not” consider such new evidence (12 NYCRR 300.13[b] [1] [iii]; see Matter of Casale v St. Catherine of Siena Med.Ctr., 156 AD3d 1070, 1071-1072 [2017]).Claimant was prejudiced because she was not on notice –until she received the Board decision — that the Board would relyon documents from another case file. The employer argues thatthe referenced medical reports cannot be objectionable becausethey accurately reflect the treatment rendered, but we cannotverify that without reviewing those reports. The employerfurther argues that no response to the medical records wouldchange the strength of either side’s argument, but thatproposition is mere speculation. Either party may have chosen tosubmit additional medical records reflecting on decedent’smedical treatment from November 2014 until his death in July 2015had the parties been on notice that this period of treatmentwould be at issue.Furthermore, we cannot assume that the Board would havereached the same decision had it not considered the medicalrecords from the other case file. The Board referred to morethan one of those medical records, indicated that it consideredat least 27 pages and quoted at length from one 2014 documentthat it found to be “most telling with respect to the cause ofthe decedent’s death.” In one specific finding, the Board statedthat any presumption of compensability was rebutted by Brief’smedical opinion and the medical evidence in the case fileassociated with the other claim. Because the Board improperlyrelied upon documents outside the record, which are also notbefore this Court for our review, we reverse.Devine, Clark, Aarons and Pritzker, JJ., concur.ORDERED that the decision is reversed, without costs, andmatter remitted to the Workers’ Compensation Board for furtherproceedings not inconsistent with this Court’s decision.ENTER:Robert D. MaybergerClerk of the Court
