April 03, 2015 BY John Blackmon
Strokes And Heart Attacks: Burden Of Proof And Medical Inquiry
On March 25, 2015 the Georgia Court of Appeals issued a decision in the case of an alleged work-related stroke. Save-A-Lot Food Stores v. Amos, Ga. Ct. App. No. A14A1633 (3/25/15). The employee, James Amos, was an assistant grocery store manager for Save-A-Lot. On August 5, 2015, and after unloading pallets of meat, Amos claimed that he “found himself miscounting items, losing his balance and becoming confused.” He began to suffer from a severe headache and had weakness on the left side of his body. His wife came to the store and took him to the hospital where he was admitted for three days.
Amos filed a workers’ compensation claim alleging that he had suffered a stroke at work and, as a result, was totally disabled. He contended it was due to stress that came on after an unfavorable performance review days before the incident, which reportedly left him in fear of losing his job. As part of his case, Amos obtained a medical opinion in the form of a narrative report from his family doctor who stated that there in fact had been a stroke and that job stress was a contributing factor.
Extensive discovery was done, which included the deposition of the family physician. Not only was there no documentation in her records of any job stress, but she had signed a disability form stating that her patient’s condition was not work-related. As it turned out, the narrative report that she executed for use in evidence was authored by Amos’ legal counsel after a meeting with her.
Evidence revealed that Amos had a lengthy history of tobacco use in the past and that he may have been using e-cigarettes around the time of the incident. He also suffered from mood disorder and depression, dyslipidemia, hypertension and poorly controlled diabetes. Finally, there was evidence of at least one stroke in his family history.
Films from brain studies done after the alleged incident were obtained and reviewed by two neurologists, one of whom was the medical director at a stroke center. Although both were of the opinion that there had been no stroke, neither one could say what really happened to Amos on the date of the incident. While that question was never definitively answered, records from the hospital revealed that upon admission, Amos’ blood sugar was extremely high.
The case went to a hearing before an administrative law judge (ALJ) with Amos continuing to claim that he suffered a stroke. The ALJ ruled that he failed to meet his burden of proof, specifically finding that there was no competent or credible evidence of a stroke. In explaining his decision, he also discussed the fact that in stroke and heart attack claims, O.C.G.A. § 34-9-1(4) required the individual to tender medical evidence on causation in order to prevail, something that was not required with other injuries. The ALJ described this as a “heightened standard of proof.” The Appellate Division affirmed the ALJ, but struck the “heightened standard of proof” language, noting that the burden of proof was a preponderance of the evidence. The Superior Court of Bibb County reversed on the grounds that in its decision, the Appellate Division referenced the wrong paragraph of the ALJ’s award when deleting the “heightened standard” language. It ordered a new hearing to make sure the proper burden of proof was applied. The Georgia Court of Appeals disagreed, holding that it was quite clear that the State Board applied the proper burden of proof in a stroke case. The court went on to say that as far as the ALJ’s award, it “was not a reference to a standard of proof higher than preponderance of the evidence, but was merely a way of expressing the additional evidentiary requirement of medical evidence in such cases.”
Three things can be gleaned from this decision. The first is that while the burden of proof in a stroke or heart attack claim is a preponderance of the evidence, it is heightened because medical evidence is required on the issue of causation. There is no requirement for a causation opinion in other injuries.
The second is that any medical opinion should have some legs. The opinion from the family practitioner was not only unsupported by her own records, but it was contradicted by what she previously certified to a disability carrier. Unlike the two neurologists, the family practitioner had never even seen any of the MRI films or CT scans. The ALJ ultimately found that the most persuasive opinion came from the stroke expert, who was also a professor at Emory University School of Medicine. When questioned at the hearing by Amos’ counsel about stress being a causative factor of a stroke, this neurologist testified that the best that could be said is that it “might” be a contributing factor. He went on to explain that stress paled in comparison to the other risk factors, almost all of which Amos had. However, and this said, the neurologist testified that the MRI and CT scan testing showed no evidence of any cerebral infarct. There had been no stroke.
The third is the medical investigation that must be done in this type of case. Risk factors include family history, tobacco use, diabetes, elevated cholesterol, high blood pressure, irregular heartbeat, obesity, excessive alcohol use and certain medications. It is imperative that you obtain all of the individual’s medical records, particularly those from his or her primary care physician. In cases like these – which present significant exposure – it is well worth it to do in depth discovery simply because any opinion on causation will rest squarely on what you are able to give your expert.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley