Sweet by Sweet v. Tremendous! Entertainment, Inc.

JOSEPH SWEET, deceased Employee, by GERMAINE DEAGAN SWEET, Employee/Appellant, v. TREMENDOUS! ENTERTAINMENT, INC., and ST. PAUL COS., Employer-Insurer.

CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supported the judge=s decision that the employee=s work activities did not substantially contribute to his cardiac arrest or resulting death.

Attorneys: Denise D. Lemmon, Maguire & Lemmon, Eagan, MN, for Appellant. Barbara L. Heck, St. Paul, MN, for Respondents.

The petitioner appeals from the compensation judge=s findings that the employee=s death did not arise out of and in the course of his employment, that the employee=s death is not compensable under the increased risk doctrine, and that the employee=s weekly wage was $250. We affirm.

The employee was hired by Tremendous Entertainment, Inc. [the employer], to assist with a trade show in France.^[1] The employee was to travel to France, assist with the transportation of trade materials to the trade show, hand out items, and dress in a costume while potential clientele viewed the employer=s trade booth.

Prior to beginning work with the employer, the employee had been treated for a heart condition diagnosed as paroxysmal atrial fibrillation. In March of 2002, the employee underwent surgery, performed by Dr. Simon Milstein, to prevent the occurrence of atrial fibrillation. As of four months later, the procedure was thought to have been successful. A few months after that, however, the employee contacted Dr. Milstein, from California, regarding exercise-related shortness of breath. During an assessment on the morning of October 3, 2002, Dr. Milstein found stenosis of the vein as it entered the employee=s left atrium, an occasional by-product of the surgery. Dr. Milstein was aware of the employee=s planned trip to France later that day and approved of the employee traveling but Arecommended that the employee minimize his exercise activities until the vein could be fixed after his return.@

After the doctor=s visit on October 3, 2002, the employee spent the day packing and running errands. The employee and his wife left for the airport at approximately 6 p.m. Their baggage included three fifty-pound bags filled with trade show supplies, which they checked. The employee also carried a carry-on bag.

The employee was reportedly tired by the time he arrived at the airport, but he and his wife walked around and purchased reading materials. The plane departed at approximately 9 p.m. and flew eight to nine hours to Amsterdam. The employee and his wife were not seated together. The employee=s wife testified that beverages were served 3-4 times on that flight and that the employee typically kept himself well hydrated when flying and did not typically drink alcoholic beverages on international flights. Two meals were also served on this leg of the flight.

When the plane landed in Amsterdam, the employee and his wife had a two-hour layover, during which the employee had some coffee and a croissant. They then boarded a flight to Nice, France. It was the employee=s wife=s recollection that the employee ate a sandwich and drank a soft drink on that two-hour leg of the flight.

Upon arriving in Nice, France, on October 4, 2002, at about 5 p.m., the employee and his wife collected their baggage and loaded it onto push-trolleys to get it to a taxi. They then took a 40-minute taxi ride to Cannes, where they had rented an apartment. The employee carried the three heavy bags up to the second-story apartment and then had a cup of tea with his wife and a coworker. When his wife and the coworker left to go shopping, the employee chose to lie down and rest. Upon her return from shopping some forty minutes later, the employee=s wife found her husband gasping for breath. The coworker tried but was unable to call for help because the phone in the apartment was not working. As a result, the employee=s wife ran down the two flights of stairs and out into the street for help. When she returned to the apartment, the employee was still gasping, but he stopped breathing thereafter. The employee=s wife performed CPR until an ambulance arrived, and the paramedics worked on the employee an additional 20 to 30 minutes before declaring him dead. An autopsy revealed severe left main coronary disease.

On December 9, 2002, the employee=s widow [petitioner] filed a claim petition for dependency benefits and funeral expenses, alleging an average weekly wage in excess of $2,000.

On March 17 and August 29, 2003, Dr. Milstein issued letters stating that the underlying cause of the employee=s death was a significant coronary artery lesion. He explained that a decrease in blood flow through this artery may have caused myocardial damage with a subsequent electrical cardiac disorder. In Dr. Milstein=s opinion, Atraveling, dehydration from a prolonged air flight, exhaustion, and the stress of work are all factors that should be considered substantial contributing factors to his death.@

On May 20, 2003, Dr. Stephen Goldsmith was provided with medical records and asked by the employer and insurer to render an opinion as to the cause of the employee=s death. In an undated report, Dr. Goldsmith opined that with severe left main coronary disease, the likely cause of death was an arrhythmia secondary to myocardial ischemia. In his opinion, traveling, mental stress, and the physical stress of moving suitcases upstairs were not causally related to the employee=s death. In addition, the doctor noted that, while dehydration can activate blood clotting factors, the employee was an experienced traveler who took care to avoid dehydration.

The matter proceeded to hearing on March 16, 2004. No doctors= depositions were submitted. In findings and order filed on April 8, 2004, the compensation judge found that the employee=s average weekly wage was $650, that the employee=s death did not arise out of his employment with the employer, and that there was no medical support for the theory that the time lost by the need to make the emergency phone call from a location other than the apartment was a significant contributing factor to the employee=s death. The petitioner appeals.

On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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 (2004). Substantial evidence supports the findings if, in the context of the entire record, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

In his findings, the compensation judge outlined the employee=s activities on October 3 and 4, 2002, and specifically adopted the causation opinion of Dr. Goldsmith. The petitioner contends that the compensation judge erred in accepting the opinion of Dr. Goldsmith over that of Dr. Milstein, because Dr. Goldsmith=s opinion was based on the erroneous assumption that the employee died in the early morning hours, based on Minnesota time. We are not persuaded.

A judge=s choice between expert opinions is generally upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The compensation judge acknowledged that Dr. Goldsmith had erroneously assumed that the employee had died in the early morning hours, when in fact the employee died at 9 p.m. in France, which would have been afternoon by the employee=s biological clock. Dr. Goldsmith did note that there is Aa well-known diurnal variation in the incidence of myocardial infarction and sudden death, with the largest number of events coming in the early morning hours,@ and indicated that the timing of the employee=s cardiac arrest Acertainly conforms to this well-known cyclical peak in malignant coronary events.@ However, a reasonable reading of Dr. Goldsmith=s report would indicate that this was only one basis for his opinion as to the cause of the employee=s death. Dr. Goldsmith went on to specifically address stress, excessive heavy work or physical effort, travel, and dehydration as possible factors in the employee=s death, ultimately concluding that the employee=s death had a temporal but not a causal relationship to his work.

The petitioner also contends that Dr. Goldsmith=s opinion should not has been accepted because he applied an incorrect standard- - that the employee=s activity had to be unusual or excessive for the death to be compensable. Again, we are not persuaded.

Under case law, exertion need not be extraordinary to allow a finding of compensability, Golob v. Buckingham Hotel, 244 Minn. 301, 69 N.W.2d 636, 18 W.C.D. 275 (1955), but it must be shown that the work activity was a substantial contributing factor in causing or precipitating the employee=s heart attack, Stibbs v. Northwest Airlines, 277 Minn. 248, 152 N.W.2d 318, 24 W.C.D. 233 (1967). While not the model of clarity, Dr. Goldsmith=s report may be interpreted to reflect the opinion that flying or moving suitcases upstairs were not substantial contributing factors in the employee=s sudden death. In addition, Dr. Goldsmith did not find evidence indicating that the employee was suffering from dehydration at the time of his death.

At oral argument, counsel for the petitioner contended that traveling, dehydration, exhaustion, and the physical stress of carrying bags upstairs all substantially contributed to the employee=s death.^[2] However, as noted by the compensation judge, the employee was not unaccustomed to these kinds of business trips, there was no evidence that he was dehydrated, and there was no evidence that the lifting of the bags made the employee tired or exhausted. We note additionally that the petitioner testified that the employee was already tired when they arrived at the airport to begin their trip on October 3, 2003, and that Dr. Milstein did not specifically identify the activity of carrying the luggage up two flights of stairs as a substantial contributing factor in the employee=s cardiac arrest.^[3] Accordingly, substantial evidence supports the judge=s decision that the employee=s work activities were not a substantial contributing cause of his cardiac arrest.^[4]

The petitioner also contends that the employee was placed in a position, by his employment, which aggravated the effects of a personal risk, in that the employee became ill in an apartment without a working phone. As such, under this theory, the employee=s death should be deemed compensable because 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).

In support of her position on this issue, the employee cites the case of Sparks v. Warmka Transport, Inc., 62 W.C.D. 586 (W.C.C.A. 2002). Again, we are not persuaded. In Sparks, the employee was involved in a motor vehicle accident, and the cause of death was massive blunt/sharp force trauma due to the accident. In the instant case, the employee died of a heart condition, and there is absolutely no evidence that the delay in receiving medical attention, caused by the lack of a working phone in the apartment, in any way contributed to the employee=s death. That is to say, there is no evidence that the employee would have survived the heart attack if medical help had reached him sooner. Accordingly, we affirm the judge=s finding that the employee=s death was not compensable under an increased risk theory.

The petitioner contends that the issue of weekly wage should be remanded to the compensation judge because the judge used the Apre-trade show rate@ of $50 per day in calculating weekly wage, whereas the employee was to have been paid $150 for each day of the trade show. In making this argument, the petitioner admits that she failed to introduce this evidence as an exhibit at the hearing.

Minn. Stat. '176.341, subd. 5, provides that, with certain exceptions, all evidence must be submitted at the hearing. In any event, in light of our affirmance on the other issues, we find no basis to remand. The judge=s findings and order are affirmed in their entirety.

^[1] The employee=s wife was the vice president of sales and co-productions for the employer.

^[2] Counsel admitted that mental stress was not a factor.

^[3] Dr. Milstein identified Astress of work@ as a factor that would have increased the employee=s risk of an ischemic event. Whether he was addressing physical or mental stress is unknown.

^[4] We note that this is a very tragic and troubling case. The expert medical opinions were submitted by written report only. None of those reports was well written. However, while each report raised certain questions, we are compelled, under our standard of review, to affirm the judge=s decision.