CARL B. HEITLAND, deceased Employee, by TERESE K. HEITLAND, Petitioner, v. R. O. DRYWALL and MINNESOTA WORKERS= COMP. ASSIGNED RISK PLAN/BERKLEY RISK ADM=RS CO., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 5, 2005
No. WC04-263
HEADNOTES
CAUSATION - HEART CONDITION. Substantial evidence in the form of a well-founded medical report supports the compensation judge=s determination that the employee=s work activity was not a substantial contributing cause of his death.
Affirmed.
Determined by: Stofferahn, J., Pederson, J., and Rykken, J.
Compensation Judge: Catherine A. Dallner
Attorneys: Jerry J. Lindberg, Drewski & Lindberg, Sauk Rapids, MN, for the Petitioner. Roderick C. Cosgriff, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondents.
OPINION
DAVID A. STOFFERAHN, Judge
The petitioner appeals from the compensation judge=s determination that the employee=s work activity was not a substantial contributing factor in his death. We affirm.
BACKGROUND
Carl Heitland, the employee, was employed as a drywall installer for R.O. Drywall on October 11, 2001. He had begun working for the company in June 2001 and worked as part of a two-person crew with one of the owners, Ryan Olson.
Mr. Olson and the employee usually began work between 7:00 and 9:00 a.m. but they may have started two or three hours later than that on October 11. On that date, they were installing ceiling drywall in a duplex. To do so, the installers stand on a bench and lift the drywall sheet overhead; the sheet is held in place by the installers= heads while it is tacked on by hammer. An electric screw gun is then used to set the drywall screws. Each full sheet of drywall weighs 107 pounds.
Mr. Olson testified that he and the employee had been working about three hours when the employee complained of a Aknot@ in his back. Mr. Olson suggested a break and they stopped working for about 15 minutes. During the break, each man drank a Mountain Dew and smoked two cigarettes. At the end of the break, Mr. Olson went to a different part of the duplex to get some tools. Mr. Olson testified that he was gone less than a minute and when he returned the employee was not upstairs where they had been working but was downstairs in the unfinished garage.
The employee was lying face down between the studs, he was unresponsive, and there was a small amount of blood from a cut over one eye. Mr. Olson called 911. Initially, the police arrived and then an ambulance which took the employee to the Paynesville Area Hospital. The employee did not respond to resuscitation efforts and he was pronounced dead at 3:00 p.m. The medical examiner=s report provided a diagnosis of artherosclerotic heart disease with 95 percent narrowing of the major coronary vessels, pulmonary congestion, and cerebral edema. The employee was born May 9, 1964, and was 37 years old on the date of his death.
On October 17, 2001, the employer filed a First Report of Injury and on October 30, 2001, the employer and insurer filed a denial of primary liability alleging that the employee=s death was due to a personal condition. On December 26, 2002, the petitioner, on behalf of the employee=s three minor children, filed a claim petition for dependency benefits. The claim petition was heard by Compensation Judge Catherine Dallner on May 14, 2004. The parties agreed that the issue for the compensation judge=s determination was whether the employee=s work activity on October 11, 2001, was a substantial contributing cause of his death on that date.
The petitioner=s claim was supported by the opinion of Dr. D. M. VanNostrand as set forth in his reports of December 3, 2002, and February 23, 2004. In the December 3, 2002, report, Dr. VanNostrand indicated that records from October 11, 2001, were reviewed and that the employee=s previous medical records from St. Cloud Hospital were considered as well.
The records from St. Cloud Hospital indicated that on September 23, 1998, the employee presented with a complaint of tightness in his chest with radiation into his shoulder and left arm. The pain had started about 45 minutes previously and was worse with rest. The employee was treated with oxygen and sublingual nitroglycerine. No acute changes were shown on EKG or blood chemistry tests. The employee was admitted for a cardiac consultation and the assessment from that consultation was of chest pain of unknown etiology, possibly cardiac in origin. It was noted that the employee was a smoker and had a history of hypertension and depression.
The employee had an exercise stress test on October 4, 1998, which Dr. VanNostrand read as normal. Dr. VanNostrand noted subsequent treatment for migraine headaches, depression, and other conditions but no additional treatment for a cardiac condition.
Dr. VanNostrand=s diagnostic impression was of coronary artery disease, probably fatal arrythmia. In the discussion section of his report, Dr. VanNostrand noted the employee=s positive family history for hypertension, hypercholesterolemia, smoking, and stress. Dr. VanNostrand concluded that the employee=s work activities were a contributing factor to his death. Dr. VanNostrand stated Abecause of the nature of his death with no previous history that I can see that he had been under the care of any physician for cardiac disease, in my opinion the precipitating factor in his death was of his employment for the drywall company.@
The employee=s records were evaluated on behalf of the employer and insurer by Dr. Lindsey Thomas, who prepared an initial report of October 13, 2003. Dr. Thomas reviewed the same records as Dr. VanNostrand and also reviewed Dr. VanNostrand=s report. Dr. Thomas found significant the employee=s history of Amarked hypertension@ with elevated blood pressure readings noted in July 1998, September 1998, December 1998, March 1999, December 1999, and May 2000. Dr. Thomas also found significant the employee=s history of polysubstance drug abuse.
Dr. Thomas concluded that the employee=s death was Aa complication of his severely advanced artherosclerotic heart disease, probably an arrythmia.@ In Dr. Thomas=s opinion, the employee=s death was not substantially caused or contributed to by his work activity on October 11, 2001. Dr. Thomas stated that the employee=s death Awas a natural manifestation of his underlying coronary artery disease. People with this significant level of narrowing of the coronary arteries are at an extremely high risk of having an ischemic event with subsequent arrythmia and death.@
Dr. VanNostrand wrote a supplemental report of February 23, 2004, after reviewing the deposition of Ryan Olson. Dr. VanNostrand stated that the deposition provided more information on the physical nature of the employee=s work and that the stressful nature of the work led to his opinion that Athat kind of manual labor would be more likely to trigger a fatal heart attack.@
Dr. Thomas also prepared a supplemental report. In her report of May 13, 2004, Dr. Thomas indicated that she had reviewed Mr. Olson=s deposition as well as certain medical articles. Dr. Thomas stated that her opinion continued to be that the employee=s work activity did not substantially contribute to his death. Mr. Olson=s deposition indicated to Dr. Thomas that the physical activity in which the employee was engaged was work he had done often and that it did not constitute extreme physical activity for him. Dr. Thomas noted as significant the fact that the employee=s previous episode of angina was not brought about by physical activity but occurred at rest. Dr. Thomas concluded that the cause of the employee=s death was Aa complication of his advanced artherosclerotic heart disease, probably an arrythmia, and specifically ventricular fibrillation.@
In her Findings and Order, served on August 2, 2004, the compensation judge found that the employee=s work activity on October 11, 2001, was not a substantial contributing cause of his death. The compensation judge determined that the employee=s death was caused by his artherosclerotic heart disease. In her memorandum, the compensation judge set out her reasons for accepting the opinion of Dr. Thomas over that of Dr. VanNostrand. The employee appeals.
DECISION
On appeal, the employee argues that the compensation judge erred in relying on the opinion of Dr. Thomas. According to the employee, Dr. Thomas concluded that the employee=s work activity was not a substantial contributing factor in his death because the employee=s work was not unusual or extraordinary. The employee contends that this is an incorrect standard for establishing a relationship between a heart attack and work activity, citing to Wersal v. Schwickert Roofing, slip op. (W.C.C.A. Dec. 30, 2003).
The employee=s argument misstates the nature of Dr. Thomas=s opinion. In order to accept the employee=s argument, one would have to conclude that Dr. Thomas was of the opinion that physical exertion was a factor in the employee=s cardiac event and death. Dr. Thomas provided instead an opinion that the ventricular fibrillation which led to the employee=s death was the end result of his artherosclerotic heart disease. Dr. Thomas explained her rationale for her opinion and the compensation judge accepted that rationale. The compensation judge correctly concluded that Dr. Thomas= opinion was that the cause of the employee=s death was artherosclerotic heart disease and not physical exertion on the job.
The employee also argues that Dr. Thomas connected the employee=s death to smoking cigarettes on his break and the compensation judge should have applied the personal comfort doctrine as set out in Hill v. Terrazzo Machine & Supply Co., 279 Minn. 428, 157 N.W.2d 374 (1968). As the employer and insurer point out, the employee did not raise this argument before the compensation judge, focusing instead only on a claim that the physical exertion required on the job led to his death. While the employee contends that the personal comfort doctrine is simply a legal principle and not a separate issue, we note that the employee in this matter is seeking to reverse the compensation judge for failing to make a determination which she was never asked to make. We conclude this issue was not considered by the trial court and cannot be raised for the first time on appeal. Wetterlund v. API/Viking Automatic Sprinkler System, slip op. (W.C.C.A. June 25, 2002). Because of our conclusion, we do not consider whether the personal comfort doctrine could apply in this case.
We find substantial evidence in the record, in the form of Dr. Thomas=s well-founded medical opinion and report, to support the compensation judge=s determination that the employee=s work activity on October 11, 2001, did not substantially contribute to his death.