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Heart attack held not compensable

36 year-old Thomas McKeever was employed by J.C. Penney as a security guard. On his day off, McKeever happened to be walking through a different J.C. Penney (not the one he worked in) when he observed a customer acting suspiciously. The claimant started following the customer.
Eventually the customer saw the claimant following him and fled the store. The claimant chased after him, breaking into a run. After running about 50 yards, the claimant was out of breath and seeing stars so he broke off the pursuit.
After doing some personal banking, the claimant returned to the store and complained about being out of breath. An ambulance was called, the claimant was taken to the emergency room. He was released without a diagnosis.
Two days later the claimant returned to the hospital and was diagnosed as having had an acute stroke or strokes. The claimant now alleges he has no sensation on the right side of his body,has problems remebering things, and needs a cane to walk. He filed a New Jersey claim petition alleging that the 50-yard pursuit of the possible shoplifter through a J.C. Penney store (but not the store he actually worked in) on his day off caused him to have a compensable cardiovascular event.
The issue before the workers’ compensation court was whether the petitioner met his bred of proof under the New Jersey Workers’ Compensation Act. The law requires that any claim for cardiovascular event (heart attack, angina attack, stroke, etc) must be proven by a showing that the precipitating event that allegedly caused the cardiac incident was the result of a strain in excess of the wear and tear of the activities of daily living. This effectively shifts the burden of proof to the claimant to make a prima facie showing – and in this case, the expert doctors each had an opinion as to whether the running event caused the stroke two days later.
The expert doctors hired by each side gave predictably conflicting opinions at the trial. The Judge of Compensation found that the claimant’s expert was not as credible as the employer’s expert, and the case was dismissed.
On appeal, the reviewing court found that the Judge of Compensation’s reliance on the defense expert was well-placed as the employer’s expert was better qualified. The employer’s doctors was a board-certified neurologist while the claimant’s expert was a psychiatrist.
Of note: an interesting aside in this case was that the respondent;s expert came up with a new alternate theory of causation on the eve of trial – but the Judge of Compensation refused to allow the expert to testify about the new theory because the defense expert had not provided a supplemental report to claimant’s counsel prior to trial. On the stand the defense expert did not testify about his new theory of causation. However, claimant’s counsel “opened the door” into this alternate theory of causation by asking the employer’s expert to explain “how the stroke occurred.” In response, the employer’s expert testified based on his new alternate theory. The Judge of Compensation was able to rely upon this previously-barred testimony!
The Take-away: Never ask an opposing expert to explain their opinion – it opens the door for the opposing expert to expand upon their earlier opinions and maybe introduce a new theory of causation for you to combat at trial!
Case: Thomas McKeever v. J.C. Penney, A-0992-09T1 (N.J. App. Div. Decided Oct. 18, 2010). Unpublished.

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