DAVID J. GANFIELD, Employee/Appellant, v. CITY OF RICHFIELD, SELF-INSURED, Employer/Cross-Appellant, and CITY OF APPLE VALLEY, SELF-INSURED, Employer/Cross-Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 24, 2004

 

HEADNOTES

 

CAUSATION - PEACE OFFICERS PRESUMPTION; STATUTES CONSTRUED - MINN. STAT. § 176.011, SUBD. 15.  The employee was not entitled to the operation of the presumption of occupational disease where substantial evidence supported the findings that he had not been diagnosed with myocarditis and that his cardiomyopathy was not the result of an alleged work-related previous myocarditis condition.

 

Affirmed.

 

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

Compensation Judge: William R. Johnson

 

Attorneys:  James E. Lindell, Lindell & Lavoie, Minneapolis, MN, for the Appellant. Leslie M. Altman and David M. Bateson, Rider Bennett, Minneapolis, MN, for the Cross-Appellant.  Thomas M. Peterson, League of Minnesota Cities, St. Paul, MN, for the Cross-Appellant.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s denial of his claim that he sustained an occupational disease arising out of and in the course of his employment.  We affirm.

 

BACKGROUND

 

This claim concerns the issue of whether the employee=s cardiac condition, diagnosed as cardiomyopathy, qualifies him for the statutory presumption, as set forth in Minn. Stat. ' 176.011, subd. 15(b),^[1] that he has sustained an occupational disease causally related to his employment.  Under this statute, specific diseases are presumed to have arisen out of and in the course of employment Apeculiar to the occupation in which the employee is engaged and due to causes in excess of the hazards ordinary of employment.@  Minn. Stat. ' 176.011, subd. 15(a).  On December 14, 2000, at age 47, Mr. David Ganfield, the employee, was employed by both the Cities of Richfield and Apple Valley, for whom he worked as a firefighter and emergency responder.  On that date, the employee temporarily lost consciousness while at home, underwent emergency medical treatment for a cardiac condition, and was later diagnosed as having cardiomyopathy.^[2]  Although the pertinent statutory section refers to myocarditis^[3] and not to the employee=s diagnosed condition of cardiomyopathy, the employee claims that his present disabling heart condition was the natural sequela of myocarditis and therefore he is entitled to a presumptive finding that his condition was an occupational disease causally related to his employment.  The employers have both denied that the employee sustained an occupational disease as a result of his employment. 

 

The employee worked as a firefighter in the Apple Valley Fire Department from 1979 until July 20, 2001.  He began working as a full-time firefighter for the City of Richfield Fire Department on May 1, 1985, and stopped performing the physical duties of a firefighter for both departments after January 5, 2001.  In the course of his work for both fire departments, the employee has performed various duties, including working as a line firefighter to suppress fires, and working as a driver, crew leader, district chief, and training officer.  He has also assisted with public education programs and with fire truck design.  In addition, the employee  worked as an emergency medical technician; he testified that approximately 70% of his departments= emergency response calls were medical or emergency calls.

 

The employee received medical treatment for a cardiac condition prior to his claimed injury of December 14, 2000.  The employee first sought medical treatment for irregular heart beat on October 15, 1990.  An EKG registered as normal; a cardiologist concluded that the employee probably was noting effects of using the medication Sudafed.  In September 1991, the employee was diagnosed as having a trace of aortic insufficiency, but was advised by his physician that the cause of the aortic insufficiency was unknown and he was not treated with any medication.  The next recorded cardiac treatment was in November 1994, when he consulted his family doctor as a followup to an EKG; the employee reported that his palpitations had decreased significantly during the past year.  No additional cardiac treatment is listed until October 21, 1996, when the employee underwent an EKG, which showed a left bundle branch block without evidence of myocardial ischemia.  In January 1997, following additional diagnostic testing, Dr. V. Ross Collins, cardiologist, diagnosed an idiopathic left bundle branch block with mild left ventricular enlargement, and mild aortic insufficiency.  Dr. Ross also stated that A[o]rdinarily, a lone left bundle branch block with no underlying cardiac abnormality has a good prognosis and I feel that this man can continue his active vigorous lifestyle.  I am a little bit concerned that he may have an underlying cardiomyopathy which is not yet manifest and therefore I would like to see him again with an echocardiogram in one to two years.@  Dr. Collins prescribed aspirin and multivitamins with folate due to a remote possibility of significant hemolytic anemia, and recommended follow-up in one to two years. 

 

Dr. Collins again examined the employee in January 1998, and noted  no significant change.  He recommended another stress test, and advised that unless the stress test showed marked abnormality, the employee would be followed on a routine basis only.  The echocardiogram, performed in February 1998, was interpreted as normal and showing adequate exercise capacity.  The record contains no report from the prescribed stress test.  Other than dietary recommendations, Dr. Collins placed no restrictions on the employee=s activities.

 

There are no medical records in evidence documenting cardiac treatment between January 1998 and December 2000.  On December 14, 2000, the employee was at his home, sleeping, when he awakened and walked to his bathroom.  While there, the employee apparently fainted or lost consciousness.  He was taken by ambulance to the emergency room at Fairview Ridges Hospital in Burnsville, where he was advised to consult his family doctor.  The employee did so on December 19, 2000, consulting Dr. Jeffrey Michell.  At Dr. Michell=s referral, the employee consulted Dr. David Laxson, cardiologist at the Minnesota Heart Clinic, on January 5, 2001.  In his report of that date, Dr. Laxson diagnosed cardiomyopathy, ischemic^[4] versus idiopathic, syncope,^[5] and hypertension.  Dr. Laxson recommended a coronary angiography and an electrophysiology study and prescribed medication.  Dr. Laxson stated that he suspected the employee=s condition was idiopathic, but that Agiven his family history as well as the focal wall motion abnormality on stress echo, ischemia needs to be definitely evaluated.@  Dr. Laxson also commented that the employee Ahas had regular care over the last number of years and has never had significant hypertension until recently,@ and that he was concerned about ventricular arrythmia.  The employee=s angiogram and catheterization, conducted on January 16, 2001, was interpreted as showing dilated cardiomyopathy with ejection fraction of approximately 30%. 

 

The employee last performed the physical duties of a firefighter on January 5, 2001.  For a period of time, the employee continued to work for both employers, in an administrative and training capacity.  Since then, he has worked on a part-time basis as an administrator for the Apple Valley Firefighters Relief Association and also has worked part-time for the Minnesota State Fire Department Association, receiving limited monthly income from those positions.  At the time of the hearing on April 9, 2003, the employee was also receiving a line of duty disability pension or in-service pension from the Public Employees Retirement Association.

 

The employee continued to consult Drs. Michell and Laxson for his cardiac condition, both of whom diagnosed cardiomyopathy.  Following an exam on February 6, 2001, and based on follow-up diagnostic studies, Dr. Laxson diagnosed the employee as having idiopathic cardiomyopathy, and found that the employee was doing well functionally and was able to exercise 12 to 13 minutes on the Bruce Protocol, a type of cardiac stress test, with essentially no limiting symptoms. However, Dr. Laxson continued to restrict the employee from active firefighter duty, particularly related to repeated lifting of very heavy objects or isometric exercise, in view of his diagnosis of cardiomyopathy with an ejection fraction of 30 percent.

 

Following an examination on April 11, 2001, Dr. Laxson again diagnosed cardiomyopathy, advised that the employee had no family history of cardiomyopathy and stated that his findings suggested Aa significant possibility that this [is] the residual of a viral cardiomyopathy.@  The employee received follow-up care from Dr. Laxson, who continued to limit him from performing the physical activities required of a firefighter.

 

The underlying cause of the employee=s cardiac condition is the primary issue in this case, and the record contains causation opinions from four medical experts: the employee=s primary treating cardiologist,  Dr. Laxson, and three independent consulting physicians, Drs. Bernard Gersh, Jackson Thatcher and David Berman.  In his report dated October 3, 2001, Dr. Laxson outlined his opinion that the employee=s cardiomyopathy Amost likely represents the sequel[a] of a previous viral myocarditis.@  He concluded that the employee had no evidence by angiography or echocardiography of valvular heart disease, and that it was Amore likely than not@ that the employee=s cardiomyopathy developed as a result of myocarditis.  He explained his opinion as follows:

 

Given the exclusion of the other potential [etiologies] as outlined above, Mr. Ganfield=s cardiomyopathy most likely represents the sequel[a] of a previous viral myocarditis.[^[6]]  Viral myocarditis is a well know[n] cause of cardiomyopathy.  Generally, patients are rarely seen during the acute phase with a viral myocarditis and it is frequently a retrospective diagnosis or diagnosis of exclusion.  There is often a prolonged period of time between the initial myocarditis and the subsequent development of evidence for a permanent cardiomyopathy.  Some myocardiopathies that are without other explanation have been shown to be related to genetic causes, but this is the minority of such cardiomyopathies.  Additionally, there is no family history in this case that would support a genetic [etiology].  In summary it is more likely than not that in this case the  cardiomyopathy is a consequence of a viral myocarditis.

 

The employee was referred to Dr. Gersh, at the Mayo Clinic, for a second opinion.  In his report of June 26, 2002, Dr. Gersh diagnosed Aidiopathic dilated cardiomyopathy,@ and noted that the employee had experienced an improvement in cardiac function.  He stated that the Acurrent pervading hypothesis is that the most likely cause of dilated cardiomyopathy is that this is a genetically-mediated altered immune response to a viral infection, which may well be Coxsackie viral myocarditis in the Western Hemisphere.  It is also possible that exposure to other infectious or toxic agents could play a role.@  However, Dr. Gersh=s report did not refer to a diagnosis of myocarditis, nor did he provide a definite opinion that a virus or toxic agent caused the employee=s cardiomyopathy.  Dr. Gersh recommended that the employee remain on beta blockers and ACE inhibitors for his cardiac condition.

 

On July 3, 2002, Dr. Thatcher examined the employee at the request of the City of Richfield.  Dr. Thatcher also diagnosed Adilated cardiomyopathy, improved, now functional Class I-II.@  He also referred to the potential diagnosis of myocarditis, stating generally that

 

Dilated cardiomyopathy may have a specific and identifiable cause and manifest as an end-stage of eschemic heart disease, genetic disorders and hypertensive heart disease.  It may also present as a result of toxic exposure or other injury to the myocardium, in effect, the end-stage of myocarditis.

 

As to this particular case, Dr. Thatcher stated that A[a]fter a reasonable attempt to identify genetic, endocrine, ischemic or hypertensive cause, and self-administered specific toxins and chemotherapies are excluded, it is reasonable to deduce to a reasonable degree of medical certainty that myocarditis is the cause of Mr. Ganfield=s cardiomyopathy.@  Dr. Thatcher stated that it could not be determined whether the myocarditis was due to infection or toxic exposure, but reiterated that even though no clear identifiable cause had been established for the employee=s dilated cardiomyopathy, A[i]n the absence of identifiable cause, cardiomyopathy is, to a reasonable degree of medical certainty, the result of myocarditis whether due to cryptogenic infection or toxic exposure.@

 

By contrast, Dr. Berman, who examined the employee on February 27, 2002, at the request of the City of Apple Valley, expressed his opinion that viral myocarditis did not cause the employee=s heart condition.  Although Dr. Berman concurred with the diagnosis of idiopathic cardiomyopathy, he identified no cause for that condition, believing that to conclude the employee had a previous viral infection would be speculative because no virus had been identified.  Dr. Berman did not find evidence in the employee=s pre-2002 medical records that any physician had diagnosed myocarditis.  Dr. Berman also testified that a person who has myocarditis would likely feel ill enough to consult a doctor, and would present as someone acutely ill, typically with symptoms including fever, rapid heart, signs of heart failure such as shortness of breath, fluid in the lungs, and edema in the legs.  He testified that if a person presented with symptoms consistent with myocarditis, there would be a protocol of diagnostic tests such as a biopsy and serological testing needed to confirm a diagnosis of myocarditis.  None of these tests had earlier been conducted to evaluate the employee=s condition.  In summary, although Dr. Berman testified that he did not see evidence that would exclude myocarditis as the origin for the employee=s cardiomyopathy, he found no direct proof in the employee=s medical records of an inflammatory process such as myocarditis.

 

The employee=s claims for temporary partial disability benefits, payment of medical expenses and provision of rehabilitation services were addressed at hearing on April 9, 2003.  The employee testified at hearing; Dr. Berman testified by post-hearing deposition.  In a findings and order served and filed on August 1, 2003, the compensation judge concluded that the employee had not proven that his cardiomyopathy arose out of and in the course of his employment, specifically finding that the evidence did not show that the employee previously had myocarditis which later developed into cardiomyopathy.  On the basis of that finding, the compensation judge concluded that the evidence did not allow for application of the presumptive conclusion, set out in Minn. Stat. ' 176.011, subd. 15(b), that the employee sustained an occupational disease that arose out of and in the course of his employment with both employers.  The employee appeals from the compensation judge=s denial of his claim.  The employers cross-appeal from the compensation judge=s Order Granting Medica/Healthcare Recoveries= intervention status, issued on August 12, 2003.

 

DECISION

 

Applicability of Statutory Presumption

 

The primary issue on appeal is whether the employee, who worked as a firefighter for both employers, is entitled to the operation of the presumption provided by Minn. Stat. ' 176.011, subd. 15.  Two statutory factors were satisfied by the employee: (1) his employment positions at the time of his claimed injury were within the occupations listed in the statute, as he was employed on active duty with the organized fire departments of two municipalities, and (2) there is no dispute that the employee=s physical examination at the time of his employment was negative for any evidence of myocarditis, as required by the statute.^[7]  The issue on appeal, therefore, is whether the compensation judge=s factual finding that the employee=s disability did not result from one of the specific diseases enumerated in this statutory section is supported by substantial evidence of record.  We conclude that the compensation judge=s finding, in the context of the entire record, is Asupported 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).

 

The employee argues that his cardiomyopathy developed as a result of a previous viral condition and myocarditis.  He argues that the causal link is logical, based on the type of work he did as a firefighter and emergency medical technician.  For example, many of the calls he received during his work for both cities were emergency medical calls involving car accidents, infants with seizures and resuscitation of elderly persons, which necessitated performance of CPR on individuals.  The employee argues that it was quite likely he contracted a virus numerous times from various sources during his employment for both cities, even though he could not identify exact dates of this exposure.  The employee testified that he was sick at various times during the years he was employed by the employers, and that he eventually developed heart palpitations which grew into left bundle branch block which in turn digressed into cardiomyopathy.  The employee also testified that at times he suffered flu-like symptoms even though no other family members experienced those same symptoms, and that his symptoms may have resulted from myocarditis. 

 

The employee relies on the medical opinion of Dr. Laxson, his treating cardiologist,  who concluded that the employee=s Acardiomyopathy most likely represents the sequel[a] of a previous viral myocarditis@ and that viral myocarditis is a well known cause of cardiomyopathy.  Dr. Laxson concluded that it was Amore likely than not that in this case the cardiomyopathy is a consequence of a viral myocarditis.@  However, the compensation judge believed that Dr. Laxson=s conclusion that the employee=s cardiomyopathy resulted from a prior myocarditis was based on an assumption and not on anything Aconcrete@ which would support that conclusion.  The compensation judge was not willing to accept a retrospective diagnosis of myocarditis, and  instead relied upon the medical opinion of Dr. Berman, that it would be speculative that a viral myocarditis  caused the employee=s heart disease.  The compensation judge found that the employee did not have a history of serious symptoms typical of myocarditis, and relied on Dr. Berman=s deposition testimony that while it was possible, in the rarest of cases, to have a myocarditis without being seriously ill, such a development was very unlikely.  It is therefore the lack of documentation of symptoms typical of myocarditis, and lack of a specific prior diagnosis of myocarditis, that compelled the compensation judge to conclude that the employee did not prove that his cardiomyopathy was work related.  Our review of the record confirms that there is no diagnosis of myocarditis listed in earlier medical records, and we conclude that it was reasonable for the compensation judge to rely on this lack of a prior diagnosis in reaching his conclusions.

 

This court addressed a similar situation in Jensen v. City of Minneapolis, 44 W.C.D. 193 (W.C.C.A. 1990).  In Jensen, a police officer was diagnosed with cardiomyopathy, and medical experts disagreed as to whether his cardiomyopathy had been caused by a prior episode of myocarditis, even though no diagnosis of myocarditis was made in any prior medical record.  The medical expert on which the employee relied in Jensen concluded that the employee=s cardiomyopathy was caused by an assumed prior episode of myocarditis, even though no diagnosis had been confirmed by any biopsy or other medical test.  In Jensen, the compensation judge concluded that such a retrospective diagnosis was Aentirely theoretical and speculative.@  He therefore determined, based upon a choice between the conflicting medical experts, that the evidence did not show that the employee=s disability resulted from one of the medical conditions enumerated in the statute, that of myocarditis.  The compensation judge in Jensen therefore denied the employee=s claim that he was entitled to the statutory presumption set forth in Minn. Stat. ' 176.011, subd. 15, and this court affirmed that denial.

 

In this case, the compensation judge adopted the opinions of Dr. Berman over those of Dr. Laxson.  Under this court=s strict standard of review, we are required to uphold a compensation judge=s choice between medical experts whose testimonies conflict, unless there is a foundational defect in the expert opinion chosen by the compensation judge.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  The employee argues that the situation presented here is not merely a choice between conflicting medical expert opinions, as was presented in Jensen, arguing that there is no conflicting testimony among the experts herein that is material to the outcome.  He argues that Drs. Laxson, Gersh and Thatcher agreed that the employee=s cardiomyopathy represented the progression of myocarditis, and that even Dr. Berman merely stated that he could not agree to a diagnosis of myocarditis cardiomyopathy because he found no direct proof of an inflammatory process in the employee.  The employee contends that the compensation judge should not have dismissed the qualified opinions of three cardiologists by stating that there was "[n]o evidence. . . which supports the conclusion that the employee previously had myocarditis" as claimed.  (Finding No. 3.)

 

The compensation judge did not refer to Drs. Gersh and Thatcher in his findings and order; the employee questions whether the compensation judge even considered those opinions. However, the compensation judge had those medical records available for his review, and we have earlier held that a compensation judge is not required to discuss every piece of evidence introduced at the hearing.  Braun v. St. John's Univ., slip op. (W.C.C.A. July 20, 1992); see Rothwell v. Minnesota Dep't of Natural Resources, slip op. (W.C.C.A. Dec. 6, 1993) (fact that compensation judge did not recite all medical evidence favoring appellant's position in findings and order does not establish that that evidence was overlooked).

 

The employee further contends that the compensation judge Ahas set the bar so high for what he considered >evidence= that it could rarely be met@ and that in Ademanding concrete proof of myocarditis, the compensation judge demanded production of something rarely available, such as a biopsy of heart tissue.@  (Employee=s Brief, pp. 17, 19.)  The employee argues that the statutory presumption set forth in Minn. Stat. ' 176.011, subd. 15, exists to bridge an evidentiary gap or difficult proof issue in cases such as this one, and that to affirm the compensation judge=s decision would eviscerate the presumption afforded to peace officers and firefighters.  We disagree.  The statutory presumption has been characterized by the Minnesota Supreme Court as a rule of evidence, and not evidence itself.  And, where substantial evidence to rebut the presumption has been introduced, the presumption no longer applies.  See Jerabek v. Teleprompter Corp., 255 N.W.2d 377, 29 W.C.D. 621 (1977).  The burden then shifts back to the employee to establish that a work-related injury caused his or her disability.  Tolzmann v. McCombs-Knutson Assocs., 447 N.W.2d 196, 198, 42 W.C.D. 421, 424 (Minn. 1989). 

 

Here, the employee instituted a viable claim, as he had satisfied two of the statutory factors: he was employed as a firefighter at the time of his claimed injury, and he evidently had undergone a pre-employment physical examination that had been negative for findings of myocarditis.  And, although there is medical evidence that the employee satisfied the additional requirement of sustaining an occupational disease enumerated in the statute, the record also contains medical evidence to the contrary. That medical evidence--Dr. Berman=s opinion, upon which the judge relied--overcame the statutory presumption of occupational disease.  On the causation issue, therefore, the medical evidence directly contradicted the statutory presumption.  See Worden v. County of Houston, 356 N.W.2d 693, 37 W.C.D. 189 (Minn. 1984).  That medical evidence supports the compensation judge=s conclusion that the employee=s cardiomyopathy did not develop as a result of myocarditis. 

 

The employee also asserts that Dr. Berman=s opinion lacks foundation as it was internally inconsistent on the issue of the potential severe symptoms the employee would have experienced had he earlier developed myocarditis.  The compensation judge had the employee=s medical records available for review, along with the testimony of the employee and Dr. Berman.  Dr. Berman stated that a A... myocarditis diagnosis is one that has to be established by certain criteria.@  Relying on Dr. Berman=s opinion, the compensation judge found no evidence to support a conclusion the employee previously had myocarditis as claimed.  As we see no foundational defect in Dr. Berman=s opinion, and as the compensation judge granted greater weight to Dr. Berman=s opinion than to that of Dr. Laxson, we must affirm the judge=s reliance on Dr. Berman=s medical opinion.  We therefore must also affirm his related finding that the employee=s cardiomyopathy did not result from  myocarditis, his finding that the statutory presumption in Minn. Stat. ' 176.011, subd. 15(b) does not apply to the employee=s claim, and his resulting denial of the employee=s claim.

 

Motion to Strike Exhibits

 

The employers have moved to strike, from this court=s consideration, the  exhibits attached to the employee=s brief on appeal.  The employee asserted in his brief that the exhibits were not offered as evidence but instead were offered to demonstrate what could have been produced to rebut Dr. Berman=s comments concerning the potential symptoms of myocarditis. On appeal, this court may not consider matters not contained within the record before the compensation judge.  Minn. Stat. ' 176.421, subd. 6; Bye v. Federal Reserve Bank of Mpls, slip op. (W.C.C.A. July 21, 2003); Gollop v. Gollop, 389 N.W.2d 202, 203, 38 W.C.D. 757, 758 (Minn. 1986).  We therefore did not review those exhibits.  In addition, this issue is rendered moot in view of our affirmance of the findings and order.^[8]