JAMES SPARKS, deceased Employee, by CAROLYN SPARKS, Petitioner/Appellant, v. WARMKA TRANSP., INC., and GENERAL CREDIT INS. CO./MIGA, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 12, 2002

 

HEADNOTES

 

ARISING OUT OF & IN THE COURSE OF.  The death of the employee in a motor vehicle accident arose out of his employment where he was subjected to an increased risk of injury and death because of his employment as an over-the-road truck driver.

 

Reversed.

 

Determined by Stofferahn, J., Rykken, J., and Pederson, J.

Compensation Judge:  Cheryl LeClair-Sommer.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The petitioner appeals from the determination of the compensation judge that the employee=s death did not arise out of his employment.  We reverse.

 

BACKGROUND

 

The employee, James Sparks, died on June 29, 2000.  The truck he was driving for his employer left the road after striking a car parked on the side of the highway.  After traveling an additional 321 feet, the truck collided with a tree at an estimated speed of just under 52 miles per hour. 

 

The employee, an over-the-road driver, had started his trip in Florida where he had picked up a load of air conditioners.  In Carabelle, Florida, he had stopped for Paula Millender, his stepdaughter, and Ms. Millender=s daughter.  Ms. Millender and her daughter were going to spend the summer with the employee=s wife, Ms. Millender=s mother. 

 

The employee had worked for Warmka Transport, Inc., the employer, for almost six years and had driven over-the-road for other employers for a number of years before that.  In 1998, the employee had a physical examination at Wells Medical Center.  The examination disclosed that he had a date of birth of September 22, 1940, that his father had died at age 76 of a massive myocardial infarction, that his cholesterol was slightly elevated, that his blood pressure was elevated at 164/110, and that he had a smoking history of two to three packs of cigarettes per day for over thirty years.  The employee, whose height was 5= 9@, weighed 234-1/2 pounds on the date of his examination.  The employee was counseled on his smoking and was prescribed Norvasc for his elevated blood pressure.  The employee was taken off this medication after three weeks when his blood pressure returned to normal.  In May 2000, the employee had a DOT physical which he passed, although he was again counseled about his smoking.  The employee=s widow testified that he was generally in good health with no chronic symptoms or complaints.  She admitted when cross-examined that she only saw her husband a few days per month because of his job.

 

The evidence of what took place on June 29, 2000, came from the deposition testimony of Paula Millender, the employee=s stepdaughter.  She indicated the family left Florida on June 28 and spent the night in the truck.  They ate breakfast the next morning and then traveled until about 1 p.m. when they stopped at a truck stop in Oak Grove, Kentucky, for fuel and a cup of coffee for the employee.  Ms. Millender testified that the employee made no complaints of any type of pain or discomfort and appeared in good health on the trip.

 

At about 1:30 p.m., the truck was westbound on I-24 between Oak Grove and Hopkinsville, Kentucky, traveling between 60 and 65 miles per hour.  The truck had been in the right lane and the employee moved it to the left lane to pass a slower moving vehicle.  After passing the vehicle, the employee began to move the truck back into the right lane.  As he did so, he took a drink of coffee and began to choke and cough.  Ms. Millender said AIt seemed like it went down the wrong pipe.@  She asked the employee if he was all right and he shook his head.  She looked up and saw, less than a car length away, an abandoned car parked on the side of the highway.  The truck struck the car and then left the highway, traveling an additional 321 feet before it hit a tree.  The abandoned car was pushed 295 feet by the impact with the truck.  The force of the impact between the truck and the tree dislodged the truck engine and threw it 180 feet.  The employee and Ms. Millender=s daughter were killed and Ms. Millender received severe injuries.

 

The accident was investigated by the Kentucky state police, and the coroner for Christian County, Dorris Lamb, was called to the scene.  Mr. Lamb had the employee=s body removed to Lamb Funeral Home in Hopkinsville and examined it there.  He did blood tests for alcohol and other chemicals which were negative.  Mr. Lamb concluded an autopsy was not necessary and completed a death certificate identifying the cause of death as Amassive blunt/sharp force trauma due to 18 wheeler MVA.@  In his deposition, Mr. Lamb was asked about other possible causes of death, including cardiac failure.  Mr. Lamb provided his understanding of the findings which would be present in such situations and restated his conclusion that the employee died as the result of the collision.  Mr. Lamb is not a medical doctor.  He was elected to his position in 1985, completed 40 hours of basic medical training, and, thereafter, 18 hours annually of additional medical education.

 

The Kentucky state police prepared a report with the results of their investigation.  It was concluded that the accident was due to the driver losing control of his vehicle because of choking on a cup of coffee.  No other contributing factors were identified.  In a section of the report labeled Awitness summary,@ it was indicated that Ms. Millender Agot no response@ when she asked the employee if he was all right.  In her deposition, Ms. Millender denied making that comment to the police and noted that at the time she talked to the police, she was in the hospital on intravenous morphine for pain.

 

The employer was notified of the accident and contacted its workers= compensation claims administrator, Bryan Penton.  Mr. Penton called the Lamb Funeral Home on June 30 and was advised that Mr. Lamb was gone for the weekend.  Mr. Penton left a message with an unidentified person, advising him that the employer wanted an autopsy of the employee.  Mr. Lamb testified that he received no message.  Mr. Lamb discussed disposition of the remains with the employee=s widow and the employee=s body was cremated on July 3.  When Mr. Penton called again on July 3, he was advised of this fact.  The employee=s widow was never contacted with a request for an autopsy.

 

The employer denied liability for the employee=s death.  When a claim petition for dependency benefits was filed, the answer of the employer denied liability because it had been deprived of its right under statute to an autopsy and was therefore unable to ascertain a cause of death.  Subsequent to the answer, the employer had the case evaluated by Dr. Ronald Vessey, an internal medicine specialist.  In his report of September 18, 2001, Dr. Vessey concluded that the employee had suffered sudden cardiac death syndrome on June 29, 2000.

 

This matter came for hearing on October 17, 2001.  In her Findings and Order, served and filed December 17, 2001, the compensation judge rejected the argument of the employer that benefits were precluded because of the inability of the employer to have an autopsy of the employee.  She accepted the Kentucky Certificate of Death as prima facie evidence of the immediate cause of death of the employee, but held that the petitioner had not proven by a preponderance of the evidence that the employee=s death arose out of his employment.  Benefits were denied.  The petitioner appeals.

 

DECISION

 

An employer is obligated to pay workers= compensation benefits in Aevery case of personal injury or death of an employee arising out of and in the course of employment without regard to the question of negligence.  The burden of proof of these facts is on the employee.@  Minn. Stat. ' 176.021, subd. 1.

 

In the present case, the parties agreed that the employee was in the course of his employment at the time of his death.  The issue at hearing was whether the death arose out of his employment.  The compensation judge concluded that the petitioner failed to meet her burden of proof on this issue.  We disagree and reverse.

 

An employee=s injuries which follow as a Anatural incident of work@ arise out of employment.  Foley v. Honeywell, Inc., 488 N.W.2d 268, 272 (Minn. 1992).  This is not a requirement that the employment must be the proximate cause of the injuries.  Gibberd v. Control Data Corp., 424 N.W.2d 776, 780, 40 W.C.D. 1040. 1047 (Minn. 1988).  AThe phrase arising out of expresses a factor of source or contribution rather than cause in the sense of being proximate or direct.@  Hanson v. Robitshek-Schneider Co., 209 Minn. 596, 598, 297 N.W. 19, 21, 11 W.C.D. 463, 466 (1941).  On the issue of Aarising out of@, this state has adopted the increased risk test, defined as a showing that the Ainjury was caused by an increased risk to which the claimant, as distinct from the general public, was subjected by his or her employment.@  1 Larson, Workers= Compensation Law, ' 3.00 (2002); Kirchner v. County of Anoka, 339 N.W.2d 908, 36 W.C.D. 335 (Minn. 1983).^[1]

 

A motor vehicle accident causing injury or death to an over-the-road truck driver squarely meets the requirements of the increased risk test.  The compensation judge found that the cause of death was as indicated by the coroner, massive blunt/sharp force trauma due to the motor vehicle accident.  Accordingly, the death of James Sparks on June 29, 2000, arose out of his employment with Warmka Transport and petitioner is entitled to the benefits she claimed.

 

The compensation judge denied the claim because she found that the petitioner had not proven that the Amanner@ in which the death occurred arose out of employment.  The position of the compensation judge would require the petitioner to prove that the proximate cause of the employee=s death was his employment.  In setting this requirement for the petitioner, the compensation judge erred as a matter of law.  As discussed above, proximate cause is not required for an injury to arise out of employment.

 

Even if one were to accept, as did the compensation judge, Dr. Vessey=s opinion that the employee suffered sudden cardiac death syndrome which caused him to lose control of his truck and collide with a tree, this case would still be compensable.  In that event, this case would fall squarely within the holding of O=Rourke v. Northstar Chemicals, Inc., 281 N.W.2d 192, 31 W.C.D. 672 (Minn. 1979). When the employee was placed in a position by his employment which aggravated the effects of a personal risk, the death was compensable.

 

In its brief and at oral argument, the employer advanced the position that the employee may not have died from the collision and that, since Dr. Vessey had provided an alternate cause of death which was not work-related, the petitioner was not able to meet her burden of proof that the employee=s death arose out of his employment.  However, nowhere in his report did Dr. Vessey opine that the employee was dead before the truck hit the tree.  Further, Dr. Vessey=s opinion is based on assumptions not supported by the record.  Central to Dr. Vessey=s opinion was his contention in the report that the employee was Aunresponsive@ after he choked on coffee.  Dr. Vessey=s report made it clear that, to him, unresponsive meant a total loss of consciousness.  His conclusion that the employee was unresponsive was apparently based on the sentence in the police report which stated that Ms. Millender Agot no response@ from the employee when she spoke to him.  It is speculation to assume that Agot no response@ is the same as Atotal loss of consciousness.@  There is no evidence in the record that the employee lost consciousness before his death and no factual basis in the record to support Dr. Vessey=s opinion.  A judge=s choice of expert opinions will not be upheld when the facts assumed by the expert are not supported by substantial evidence.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

 

We reverse.  The death of James Sparks on June 29, 2000, arose out of and in the course of his employment.