DALE SOLEM, Employee/Appellant, v. COLLEGE OF ST. SCHOLASTICA, SELF-INSURED, adm'd by BERKLEY ADM'RS, Employer/Cross-Appellant, and BLUE CROSS/BLUE SHIELD OF MINN. and DULUTH BLDG. TRADES HEALTH & WELFARE FUND, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 27, 2000

 

HEADNOTES

 

ARISING OUT OF & IN THE COURSE OF - SPECIAL HAZARD; CAUSATION - HEART CONDITION.  Where the compensation judge found that the extraordinary stress that caused the employee=s heart attack Aarose out of the employer complying with its statutory duties under the Kari Koskinen law@ and made no findings suggesting that it was the stresses or rigors of the employee=s job duties or the employee=s specific relationship with the employer that contributed to the employee=s heart attack, the compensation judge=s implicit finding that the employee=s stress arose out of his work was reversed, and the judge=s denial of benefits based on construction of a statute outside Minnesota Statutes ' 176 was affirmed.

 

Affirmed in part and reversed in part.

 

Determined by Pederson, J., Rykken, J., and Wheeler, C.J.

Compensation Judge:  Donald C. Erickson

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge=s conclusion that the employer has no liability to the employee or the intervenors for the employee=s heart attack as a consequence of the employer=s compliance with the Kari Koskinen Manager Background Check Act.^[1]  The employer cross-appeals from the judge=s implicit finding that the employee=s stress related to the application of the Kari Koskinen law arose out of and in the course and scope of employment.  We reverse the implicit finding that the employee=s stress arose out of his work and on that basis affirm the judge=s denial of benefits.^[2]

 

BACKGROUND

 

Dale Solem [the employee] began working for the College of St. Scholastica [the employer] in March of 1987.  On October 2, 1996, the employee was working for the employer as an Energy Technician in its Facilities Department.  He was fifty years old at that time and was earning a weekly wage of $643.60.  The employee=s job duties included the operation and maintenance of heating, ventilation, and air conditioning control systems.  The employee estimated that perhaps three percent of his time was spent working in the residence or dormitory rooms of college students.

 

In 1995, the Minnesota state legislature passed a law titled the AKari Koskinen Manager Background Check Act.@  This legislation was evidently passed in response to the conviction of an apartment manager with a prior felony record, for murdering a tenant of an apartment building he managed.  The law requires Aowners,@ including colleges and universities, to conduct criminal background checks on Amanagers@ whom they employBindividuals who have the means, within the scope of their duties, to enter tenants= dwelling units.  If the criminal background check reveals that the manager has been convicted of a Abackground check crime@ as defined by the statute, the owner is required to terminate the manager=s employment.  Minn. Stat. ' 299C.69 (a).^[3]  An owner may continue to employ a manager hired before July 1, 1995, if the background check crime was committed before July 1, 1995.  However, to do so, the owner must notify all tenants and prospective tenants whose dwelling units would be accessible to the manager of the crime of which the manager has been convicted.  See Minn. Stat. ' 299C.69 (c).

 

Prior to his employment by the employer, the employee had been convicted in 1973 and 1980 of two felonies defined as background check crimes under section 299C.67, subd. 2(a).  Despite the age of these two convictions, the Koskinen law clearly required either termination of the employee=s employment or notification of all tenants and prospective tenants of the crimes for which the employee had been convicted.

 

Sometime during the summer of 1996, the employee recalled reading a newspaper article about the Kari Koskinen law.  In mid September of that year, the employee Aheard through the grapevine@ at work that the employer was going to be conducting criminal background checks and that termination from employment would be the result for those with certain criminal convictions.  At about this same time, the employee started having chest pains in the morning.  Because of these symptoms, the employee scheduled an appointment with his family physician, Dr. G. David Spoelhof, for October 1, 1996.

 

Just before leaving work for his scheduled appointment with Dr. Spoelhof on October 1, 1996, the employee noticed an envelope with the college logo on it in his mailbox at work.  Although he did not pick up the letter or review its contents, the employee assumed the envelope contained the consent form for the background check.  The employee reported to Dr. Spoelhof on that date that he had experienced anterior chest pain with numbness in his upper arm about four times during the morning hours over the past week.  He described the pain as lasting twenty minutes to one and one-half hours, with some mild associated shortness of breath.  On physical examination, the employee reported that he was Apain free,@ but an EKG was noted to be significantly abnormal, and Dr. Spoelhof diagnosed Aanginal chest pain at rest with ant[erior] T wave changes.@  After conferring with cardiologist Dr. Nancy Hassinger, Dr. Spoelhof recommended that the employee be admitted to the hospital for possible anticoagulant therapy and angiography, noting that Ahe runs the risk of having a heart attack which could be life-threatening.@  The employee refused hospitalization, preferring to go home to Aget some things together@ and planning to return to the hospital the next morning.  The employee was given nitroglycerine tablets and instructed to proceed to the emergency department at the hospital if any chest pain developed.

 

The following morning, October 2, 1996, the employee went to the emergency room at St. Mary=s Medical Center in Duluth after experiencing chest pain.  After an EKG, the employee was referred to Dr. Hassinger, who concluded that the employee Aapparently is having an acute anteroseptal myocardial infarction over the course of the last 24 hours.@  Coronary angiography was recommended and then performed later that day.  The angiography revealed a 70 to 80% stenosis of the left anterior descending coronary artery proximal to the origin of the diagonal branch.  The employee was discharged from the hospital on October 6, 1996, continuing to experience chest discomfort.  Subsequent to his discharge, the employee opened the envelope from the employer and found it to contain the background check consent form as expected.

 

The employee reported subsequent ongoing bouts of chest discomfort, and on October 11, 1996, he underwent an exercise Cardiolite scan.  This study showed a large anterior septal and apical ischemia.  Because of these findings, Dr. Michael Rich recommended that the employee undergo a repeat coronary angiography.  On October 14, 1996, the employee was treated by left angiography and placement of a stent in the proximal segment of the anterior descending coronary artery.

 

On November 10, 1996, the employee signed the employer=s consent to conduct the criminal background check.  In a letter dated December 10, 1996, the Bureau of Criminal Apprehension provided certification of the employee=s previous convictions, and on December 16, 1996, the employee was terminated from his position with the employer pursuant to the Kari Koskinen law.

 

On April 1, 1997, the employee telephoned Dr. Spoelhof to report symptoms of anterior chest pain with some radiation into both arms.  The employee reported that the symptoms were promptly relieved by nitroglycerine.  In May of 1997, the employee was once again seen by Dr. Rich, who readmitted the employee to St. Mary=s Medical Center for coronary angiography on May 19, 1997.  The angiography revealed no evidence of significant obstructive atherosclerotic disease.  Diagnosis at the time was of chest discomfort quite possibly secondary to gastrointestinal processes.

 

The employee underwent repair of a recurrent left inguinal hernia on November 18, 1997.  In a preoperative history and physical examination performed by Dr. Spoelhof on that same date, the employee reported occasional chest pains, which he attributed to his heart but which Aseem[ed] to come and go irrespective to activities.@  Dr. Spoelhof=s impression at that time was of coronary artery disease post Asmall anterior MI one year ago.@

 

On November 26, 1997, the employee=s attorney sent a detailed letter to Dr. Spoelhof, requesting the doctor=s opinions as to whether or not the employee=s work over time at the employer constituted a substantial aggravating factor in the development of the coronary arteriolosclerosis that resulted ultimately in his heart attack and as to whether the events that occurred or culminated on October 1, 1996,^[4] constituted a substantial aggravating factor in the myocardial infarction that overtly manifested itself the next morning.  On December 3, 1997, Dr. Spoelhof responded by stating, AI don=t think we can blame Mr. Solem=s employment for his coronary atherosclerosis@ and AI don=t think the stress of October 1, 1996 caused the myocardial infarction Mr. Solem suffered the morning of October 2, 1996.@

 

Following his receipt of Dr. Spoelhof=s report, the employee=s attorney forwarded the factual summary and medical records to pathologist Dr. Jesse Edwards for his review.  In a report dated February 9, 1998, Dr. Edwards stated, AIn my opinion, the emotional response of Dale Solem=s being faced with a review of his criminal records constituted a substantial cause of . . . his acute myocardial infarction on October 2, 1996.@

 

On March 13, 1998, the employee filed a claim petition, seeking compensation for a Astress related heart attack@ arising out of his employment with the employer on October 1 and 2, 1996.  In an answer filed March 30, 1998, the employer asserted in part that liability for the employee=s myocardial infarction, if caused by a criminal background check, is barred by the express provisions of the Kari Koskinen law.  The employer further denied that the employee=s myocardial infarction was caused by either the employee=s work activities or the circumstances surrounding his termination.

 

The employer obtained a review of the employee=s medical records by internist Dr. Jack Shronts.  In reports dated June 25, 1998, June 30, 1998, and April 12, 1999, Dr. Shronts concluded that the employee=s myocardial infarction was due to progressive coronary artery atherosclerosis which had reached a critical juncture, with resultant symptoms, prior to October 1, 1996.  He opined that the employee=s Aemotional state was not of significant importance in the induction of this myocardial infarction.@

 

The matter came on for hearing on June 29, 1999, before Compensation Judge Donald C. Erickson.  In a Findings and Order issued September 7, 1999, the compensation judge determined in part that Athe extraordinary stress of anticipating the criminal background check was a significant precipitating factor in causing the employee=s myocardial infarction on October 2, 1996, and the chest pain in the preceding two weeks.@  However, the judge further determined that, A[a]s the employee=s extraordinary stress that was a significant contributing factor in causing his heart attack on October 2, 1996, arose out of the employer complying with its statutory duties under the Kari Koskinen law, the employer has no liability to the employee or the intervenors for the employee=s heart attack.@  The employee and the employer both appeal.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat. ' 176.421, subd. 1 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Id.

 

A[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers= Compensation Court of Appeals] may consider de novo.@  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

 

DECISION

 

In his Findings and Order, the compensation judge determined that the employee sustained a work-related heart attack precipitated by extraordinary stress surrounding notification of a criminal background check to be conducted by the employer pursuant to the Kari Koskinen Manager Background Check Act.  He also determined, however, that the Koskinen law shields the employer from any workers= compensation liability.  The employee and the employer both appeal.

 

Causation

 

In Klapperich v. Agape Halfway House, Inc., 281 N.W.2d 675, 31 W.C.D. 641 (Minn. 1979), the supreme court established a two-part test for determining causation of a stress-induced myocardial infarction:  A(1) Is there sufficient factual evidence to conclude that mental stress and strain were medically related to the infarction?  (2)  Was that causal connection sufficient for a finding of legal causation under the statute?@  Quoted in Egeland v. City of Minneapolis, 344 N.W.2d 597, 603, 36 W.C.D. 465, 473-74 (Minn. 1984).  To prove legal causation, an employee must show that the stress experienced was Abeyond the ordinary day-to-day stress to which all employees are exposed.@  Id. at 603, 36 W.C.D. at 474, citing Lockwood v. Independent Sch. Dist. #877, 312 N.W.2d 924, 926, 34 W.C.D. 305, 309 (Minn. 1981); see also Hough v. Drevdahl & Son Co., Inc., 281 N.W.2d 690, 31 W.C.D. 605 (Minn. 1979).

 

Medical Causation

 

The compensation judge found that in mid-September 1996, the employee learned that the employer was going to conduct criminal background checks pursuant to the Kari Koskinen law.  The employee knew that if this was done, his contract of employment would be terminated.  After learning of the imminent background check, the employee noted the onset on anterior chest pain with numbness in his upper arm.  These symptoms occurred about four times during the morning hours, and, as a consequence, the employee scheduled an appointment with his family physician.  Just prior to his medical appointment, the employee became aware that there was a letter from the employer in his employee mailbox.  Fearing that it might be the consent form for the criminal background check, he did not pick up the letter from his mailbox.  When the employee was seen by Dr. Spoelhof that afternoon, his EKG reflected abnormal T-wave changes, and the employee was advised to enter the hospital.  He did not do so until the following morning, when Dr. Hassinger indicated that the A[p]atient apparently is having an acute anteroseptal myocardial infarction over the course of the last 24 hours.@

 

Medical experts expressed conflicting opinions as to the reason for the employee=s heart attack and its relationship to the employment.  Dr. Spoelhof, the employee=s family doctor, and Dr. Shronts, the employer=s expert, opined that there was no relationship between the employee=s employment and his heart attack.  To the contrary, Dr. Jesse Edwards, the employee=s expert, opined that the employee=s emotional response to being faced with a review of his criminal records constituted a substantial cause of his acute myocardial infarction.  Dr. Edwards explained that there are several hemodynamic responses to emotional stress, including increases in heart rate, blood pressure, cardiac output of blood, and in the level of adrenaline substances in the blood.  Dr. Edwards opined that, in people with the employee=s background of coronary atherosclerosis, hemodynamic responses to emotional stress favor acute myocardial infarction resulting from either coronary thrombosis or coronary insufficiency.  The compensation judge, as trier of fact, resolved the conflict in medical opinion in favor of the employee, finding the causation opinions of Dr. Edwards Ato be better founded and more consistent with all the evidence than the opinions of Dr. Shronts.@  Questions of medical causation fall within the province of the compensation judge.  Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994); see also Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (a trier of fact=s choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence).  Since his findings are based on credible testimony and are not manifestly contrary to the evidence, we must affirm.  Hengemuhle, 358 N.W.2d 54, 37 W.C.D. 235.

 

Legal Causation

 

In Finding 26, the compensation judge determined that Athe extraordinary stress of anticipating the criminal background check was a significant precipitating factor in causing the employee=s myocardial infarction of October 2, 1996.@  In Finding 27, the judge found that the employee=s extraordinary stress Aarose out of the employer complying with its statutory duties under the Kari Koskinen law@ (emphasis added).  In his memorandum accompanying his Findings and Order, the judge commented that the employee=s heart attack was Aaccelerated, . . . by the notification to employees and their consent to a criminal background check.@

 

The employee testified that he was distraught over the likelihood of losing a job he enjoyed and had performed for over nine years.  The job paid well and provided substantial fringe benefits, including free college tuition for his daughter.  The employee=s reaction to the stress and the chain of events that led to his heart attack was also corroborated by the testimony of Victoria Mudrak, the employee=s significant other.  The quality and quantity of stress to which the employee was exposed by his employment is a question of fact for the compensation judge.  In his evaluation, the judge determined that the employee=s stress was significantly greater than the stress to which ordinary living exposes everyone. In light of the evidence, this conclusion was not unreasonable and so must be affirmed.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

The more difficult question raised by the employer is whether the employee=s stress of anticipating the criminal background check arose out of and in the course and scope of his employment.  In other words, was the causal connection sufficient for a finding of legal causation under the statute?  Under the facts presented here, we believe that the connection between the stress and the employment was too remote for a finding of legal causation under the statute.

 

We note that nowhere in his Findings and Order does the compensation judge state that the employee=s heart attack arose out of and in the course of employment.  Such a conclusion might be inferred from his findings, but we find significant the fact that the judge=s only use of the Aarising out of@ phraseology is his assertion that Athe employee=s extraordinary stress . . . arose out of the employer complying with its statutory duties@ (emphasis added).  We acknowledge that this assertion does not necessarily exclude the possibility that the stress arose also out of the employee=s work; indeed, there is no disputing the fact that it is because the employee was employed by this employer in a Amanagerial@ capacity that he became subject to a criminal background check under the Kari Koskinen law.  But there is simply no evidence in the record that the employee was experiencing stress significantly related to the nature, conditions, obligations or incidents of the employment relationship.  The employer in this case was only one of many employers in the state of Minnesota required to perform background checks under the Koskinen law, and the employee was only one of many employees, in various professions, subject to such a check.  To the extent that a relationship between the employee=s work and his stress may exist here, it is a relationship between the employee=s stress and the class of his employment, not actually the employment relationship itself.

 

This is a close case.  Workers= compensation laws base compensability on work connection, not fault.  The fact that the employer was Afollowing the law,@ or blameless, does NOT affect the outcome if the injury arises out of and in the course of employment.  Nor does the employee=s past criminal Afault@ subject him to further penalty under the workers= compensation system.  However, in this case, the compensation judge made no findings even remotely suggesting that it was the stresses or rigors of the employee=s job duties or the employee=s specific relationship with the employer that contributed to the employee=s heart attack.  Under these unusual circumstances, it cannot be said that the employee=s heart attack had its origin in a hazard or risk connected to his employment sufficient to establish compensability under the act.

 

Having found that the extraordinary stress that gave rise to the employee=s heart attack did not arise out his employment, and noting the compensation judge=s conclusion that that stress arose out of something other than the employee=s work per se, we affirm the compensation judge=s denial of benefits, albeit on different grounds.  Having affirmed the judge=s decision on that basis, we conclude that the employee=s appeal from the judge=s construction of the Kari Koskinen law is moot and so will not address it.