GEORGE WERSAL, Employee, by PHYLLIS WERSAL, Petitioner, v. SCHWICKERT ROOFING, INC., SELF-INSURED/BERKLEY RISK ADM=RS, Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 30, 2003
CAUSATION - HEART CONDITION. Substantial evidence supports the determination of the compensation judge that the employee=s physical activity at work was a substantial contributing factor in causing and/or precipitating the employee=s heart attack and death.
Determined by Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Danny P. Kelly.
Attorneys: Timothy Pramas and Edward Q. Cassidy, Felhaber, Larson, Fenlon & Vogt, St. Paul, MN, for Appellant. Russell G. Sundquist, Sundquist & Associates, St. Paul, MN, for Respondent.
DAVID A. STOFFERAHN, Judge
The self-insured employer appeals from the determination of the compensation judge that the employee=s work activities were a substantial contributing factor in causing his heart attack and death. We affirm.
The employee, George Wersal, died on July 12, 1998, as a result of a heart attack which he suffered on July 10, 1998. The employee=s widow, Phyllis Wersal, subsequently filed a claim petition for dependency benefits, claiming that the employee=s heart attack and death arose out of his employment with Schwickert Roofing.
The employee had worked as a plumber for over 40 years and was employed as a working foreman in that capacity by Schwickert Roofing on July 10, 1998. On that date, the employee and two other coworkers were involved in a project of installing a cooling tower on the roof of the post office in Mankato. The roof was flat, had been cleared of gravel and was covered with black plastic. Access to the work site was by a ladder which was bolted to the wall. Since the ladder was completely vertical, going up the ladder required pulling oneself up with arms overhead. Tools and parts were brought to the rooftop either by carrying them up the ladder or by hoisting them up by a rope. If tools or equipment were being carried up the ladder, the employee would have to use one arm to carry and one arm to help pull himself up. The cooling tower, which weighed 1,000 pounds, was placed on the roof by a crane. The employee and his coworkers used a pipe as a lever to move the cooler so that bolt holes would line up.
The official maximum temperature on that date was 85 degrees. A supervisor testified that, on the roof, working on a black surface in the sun, the temperature was in the 90 to 95 degree range. A coworker testified that the temperature was close to 100 degrees where the employee was working. There was also agreement that the weather was very humid. The employee=s widow testified that the employee typically wore safety boots, long pants, long-sleeved shirts and a hard hat on the job. She testified that by the end of the workday his clothing was soaked through because of sweat.
The employee=s workday on July 10 began at about 7:00 a.m. A coworker estimated that the employee was up and down the ladder on that date at least 20 times. The employee had just come up the ladder and was handing items to a coworker when he had the onset of chest pains at about 4:30 p.m.
The employee was taken by ambulance to Immanuel-St. Joseph=s Hospital in Mankato. The employee was brought to the emergency room where he was found to be unconscious and in ventricular fibrillation. He was diagnosed as post cardiac arrest. A recommendation was made that the employee should be transferred to a tertiary care center for possible angioplasty, and the employee was transferred by helicopter to Abbott Northwestern Hospital on July 10. At Abbott Northwestern Hospital, the employee came under the care of Dr. Marc Pritzker. Treatment was unsuccessful and the employee died on July 12, 1998.
At the time of his death, the employee was 60 years old, having been born on September 14, 1937. He was approximately six feet tall and his weight at Abbott Northwestern on July 11 was 93 kilograms or 204.6 pounds. The employee had a positive family history for heart disease, with two brothers who had sustained heart attacks and a father who died from heart disease at age 72. The employee had smoked cigars at one time but quit in about 1985. In February 1978, the employee was diagnosed as having high blood pressure, and was placed on medication at that time. After a medication change in 1996, the employee=s blood pressure was controlled. The employee was also diagnosed as having high cholesterol and he was placed on medication for that condition at the end of 1997.
The employee=s medical records were evaluated on behalf of the employer by Dr. Scott Goldsmith, a cardiologist at Hennepin County Medical Center. Dr. Goldsmith testified by deposition. His conclusion was that the employee=s work activity was not a significant contributing cause of his death. Dr. Goldsmith focused on the existence of coronary risk factors in the employee=s case and on his understanding that there was not anything extraordinary about the employee=s work activities on the date when his heart attack occurred. Dr. Goldsmith also questioned any connection between physical stress and heart attacks, noting that, in his opinion, Aheavy physical exercise has been shown to be beneficial for coronary artery patients.@
The employee=s medical records were also reviewed by Dr. James Sturm, identified as a general surgeon, cardiovascular surgeon and board-certified emergency medicine physician. In his report of June 28, 2002, Dr. Sturm concluded, after reviewing the records and after considering a hypothetical prepared by the attorney for the employee=s widow, that the employee=s work activity was a substantial contributing factor in Acausing or precipitating his heart attack which resulted in his death.@
A report was also generated by Dr. Marc Pritzker, the employee=s treating doctor at the time of his death. Dr. Pritzker concluded the employee=s work was Aa substantial contributing and/or precipitating factor in the events which resulted in his death.@ Of particular importance to Dr. Pritzker were the elevated temperature and humidity in which the employee worked on July 10, the arm exercise involved in ladder climbing, and electrolyte imbalances caused by profuse sweating. Dr. Pritzker attached a number of medical references in support of his opinion.
The claim petition for dependency benefits was heard by Compensation Judge Danny Kelly on March 13, 2003 and the record closed on May 16, 2003. In Findings and Order of July 3, 2003, the compensation judge concluded that the petitioner had established by a preponderance of the evidence that the employee=s heart attack and death arose out of his employment, and the judge awarded benefits to the dependents. The employer appeals the causation determination and the award of benefits.
In his findings, the compensation judge outlined the work activities of the employee on July 10, 1998, and reviewed the employee=s medical history of risk factors. He specifically adopted the opinion of Dr. Pritzker that the work activity in Aadverse climatic conditions@ was a substantial contributing factor in causing or precipitating the employee=s heart attack and death. On appeal, the employer contends that the compensation judge erred in accepting Dr. Pritzker=s opinion, arguing that Dr. Pritzker=s opinion lacked adequate foundation. We disagree.
In his report, Dr. Pritzker stated AMr. Wersal was participating in what would be considered heavy physical exertion in adverse climatic conditions (an air temperature of 90 plus degrees, high humidity, and an estimated surface temperature in his environment of 100-110 degrees). Also as specified, his work necessitated repeated climbing a >sailor=s ladder= which required the use of his arms in a repetitive fashion.@ While there was no actual measurement of the air temperature in the area where the employee was working, Dr. Pritzker=s assumptions as to the elevated temperature, high humidity, and repetitive use of his arms was consistent with testimony provided at the hearing. The employer argues that the maximum temperature on July 10, 1998, was officially only 85 degrees. We believe it to be reasonable for the compensation judge to accept the testimony of the employee=s coworker and his supervisor that the temperature working on a flat black roof in the sun was elevated beyond that point. We find no foundational lack in Dr. Pritzker=s opinion.
The employer argues on appeal as it did at hearing that there was nothing extraordinary about the employee=s physical exertion on July 10, 1998. On that basis, it contends the claim of the employee=s dependents should have been denied. When it is claimed that an employee=s physical stress on the job has in substantial part caused or precipitated a heart attack, it is not necessary to establish that the work activity be unusual or extraordinary. A heart attack is causally related to employment if is established that the work activity was a substantial contributing factor in causing or precipitating the heart attack. Stibbs v. Northwest Airlines, 277 Minn. 248, 152 N.W.2d 318, 24 W.C.D. 233 (1967); Carlson v. Sallars Constr., 42 W.C.D. 358 (W.C.C.A. 1989); Coffin v. Supervalu, Inc., slip op. (W.C.C.A. July 11, 1997). Essentially, the position of the employer is that the compensation judge should have found the opinion of Dr. Goldsmith to be more convincing than the opinion of Dr. Pritzker. We have said repeatedly that the choice between competing medical opinions is for the compensation judge to make. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Smith v. Quebecor Printing, Inc., 63 W.C.D. 566 (W.C.C.A. 2003). Finding that the opinion of Dr. Pritzker has adequate foundation and provides substantial evidence in support of the compensation judge=s decision, we affirm. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).
 The employer also appealed the compensation judge=s determination of the employee=s weekly wage on the date of injury but did not brief the issue. The appeal on that issue is considered waived. Minn. R. 9800.0900, subp. 1.