                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 9, 2015                      520120
________________________________

In the Matter of the Claim of
   TIFFANY HILL-CHAPMAN, as
   Administrator of the Estate
   of GERALD CHAPMAN, Deceased,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

EARLYBIRD DELIVERY SYSTEMS,
   LLC, et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   May 26, 2015

Before:   Lahtinen, J.P., McCarthy, Rose and Clark, JJ.

                             __________


      Malapero & Prisco, LLP, New York City (David H. Allweiss of
counsel), for appellants.

      Eric T. Schneiderman, Attorney General, New York City
(Steven Segall of counsel), for Workers' Compensation Board,
respondent.

                             __________


Lahtinen, J.P.

      Appeal from a decision of the Workers' Compensation Board,
filed January 27, 2014, which ruled that decedent's death arose
out of and in the course of his employment.

      Gerald Chapman (hereinafter decedent) collapsed and died
while working as a dispatcher for the employer on December 25,
                              -2-                520120

2011. After his death, claimant, as administrator of his estate,
filed a claim for death benefits on behalf of decedent's two
minor children. Following a hearing, a Workers' Compensation Law
Judge established the claim. Upon review, the Workers'
Compensation Board affirmed, finding that the employer and its
workers' compensation carrier (hereinafter collectively referred
to as the employer) had failed to rebut the presumption contained
in Workers' Compensation Law § 21. The employer now appeals.

      Security videotape taken of the dispatch office on the
night of decedent's death shows him sitting at his work station
in apparent discomfort before eventually collapsing on the floor.
His body was found several hours later, and an autopsy determined
that decedent died from a pulmonary embolism due to deep venous
thrombosis of the lower extremities with an unknown cause.

      "Unexplained or unwitnessed accidents which occur in the
course of employment are presumed, pursuant to Workers'
Compensation Law § 21 (1), to arise out of such employment"
(Matter of Estate of Moody v Quality Structures, Inc., 117 AD3d
1212, 1212 [2014], lv dismissed 24 NY3d 990 [2014] [internal
quotation marks and citations omitted]; see Matter of Stevenson v
Yellow Roadway Corp., 114 AD3d 1057, 1058 [2014]). The employer
may rebut the presumption by providing "substantial evidence to
the contrary" (Workers' Compensation Law § 21; see Matter of
Babson v Finch Pruyn & Co. Inc., 25 AD3d 936, 937 [2006]).

      The employer presented the independent medical report of
Vinay Das, an internal medicine specialist, who opined that
venous thrombosis of the lower extremities can be an inherited
condition or acquired and, although he identified several
acquired causes for this condition, he could not determine the
cause of decedent's fatal embolism or whether it was related to
his work. In light of the fact that the cause of decedent's
embolism was unexplained, the Board properly evoked the
presumption of compensability (see Matter of Estate of Moody v
Quality Structures, Inc., 117 AD3d at 1213; Matter of Thompson v
Genesee County Sheriff's Dept., 43 AD3d 1252, 1253 [2007]). We
reject the employer's contention that the Board erred in denying
its request to cross-examine the medical examiner who performed
the autopsy. Both the medical examiner and Das concluded that
                              -3-                  520120

decedent died from a fatal embolism of unknown cause and, "[i]n
the absence of a viable difference in the expert opinions
expressed in the medical reports, no prejudice accrues as a
result of the denial of the right to cross-examine a medical
expert" (Matter of Bryan v Borg-Warner Automotive, 293 AD2d 856,
857 [2002]; see Matter of Robideau v Van Rensselaer Manor, 56
AD3d 866, 867 [2008]).

      The employer also argues that it was improperly denied an
opportunity to obtain decedent's medical records. We note that
the Board did not resolve or even acknowledge this issue in its
decision, despite it being raised in the employer's application
for review. Therefore, the matter must be remitted in order for
the Board to address this issue (see Matter of Tucker v Fort
Hudson Nursing Home, 65 AD3d 1442, 1442 [2009]).

     McCarthy, Rose and Clark, JJ., concur.



      ORDERED that the decision is reversed, without costs, and
matter remitted to the Workers' Compensation Board for further
proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
