DARYL DRUSCH, by JULIE DRUSCH, Employee/Appellant, v. CITY OF HOWARD LAKE FIRE DEP’T and LEAGUE OF MINN. CITIES INS. TRUST, Self-Insured Employer/Respondent, and RIDGEVIEW MED. CTR., Intervenor.

The petitioner appeals from the finding that the petitioner failed to prove entitlement to the statutory presumption set forth in Minn. Stat. § 176.011, subd. 15(b), and from the compensation judge’s denial of dependency benefits.  We hold that the statutory presumption applies in this case, and accordingly reverse Finding 19 and Orders 1-3, and vacate Findings 11, 18, and 20.  We remand the case to the compensation judge to consider whether the self-insured employer has rebutted the statutory presumption by a preponderance of the evidence.

The employee, Daryl “Taddy” Drusch, worked as a volunteer firefighter for the self-insured employer, City of Howard Lake Fire Department (the department), for nearly thirty years.  At the age of forty-nine, Mr. Drusch died of a heart attack on January 13, 2020.

In 1991, at the age of twenty, Mr. Drusch began work as an on-call firefighter for the department.  At the time of his hire, Mr. Drusch was not requested or required to undergo a physical examination.  His job duties included responding to emergency calls, extinguishing and preventing fires, completing rescues, and rendering first aid.  Firefighters for the department are also licensed emergency medical technicians (EMT) as the department provides ambulance services.  Mr. Drusch and his fellow firefighters were on-call at all hours day or night and regardless of weekends or holidays.  It was expected that if a firefighter received a page, they were to report to the station, and arrive on scene within minutes.  They would then respond to the emergency or extinguish the fire, which would also require checking for hot spots and inspecting the scene to ensure another fire would not start.  Firefighters would then return to the station to clean equipment and debrief, if needed, before returning home.  The department received emergency calls not only from the small community in which Mr. Drusch lived, but also received calls for assistance from nearby agencies.

Mr. Drusch was promoted in 2014 to the position of Fire Chief.  As Fire Chief, Mr. Drusch responded to emergency calls and was also in command of the scene and all personnel on scene.  He was responsible for managing the department and its personnel, equipment, and budget.  He was tasked with completing required paperwork and reports for every emergency call received.  Mr. Drusch’s wife and the current Fire Chief both testified that, because of the additional duties and responsibilities, the position of chief is more stressful than the position of firefighter.

The current Fire Chief testified at hearing that the department responded to over 500 emergency calls in 2022.  He estimated that any one firefighter in the department would respond to between 50 and 100 of those calls. 

Emergency call logs and select reports from 2018 and 2019 were submitted into evidence before the compensation judge.  These logs showed that Mr. Drusch responded to 76 calls in 2018 and 75 calls in 2019.  Those calls included medical emergencies, suicide attempts, motor vehicle accidents, motor vehicle fires, gas leaks, structure fires, brush, grass, and tree fires, downed power lines, and lightning strikes.  Some calls also included assisting other agencies with securing a scene or with traffic control.  For example, on January 20, 2018, Mr. Drusch and other firefighters responded to an emergency call of a house fire.  The report stated that there was moderate smoke on the main level and in the basement.  The fire and damage to the building progressed to a point where it was no longer safe for the firefighters to be inside.  The responding firefighters were on scene for nine hours.  On February 4, 2018, Mr. Drusch responded to a fire within an apartment.  The call was received just after midnight.  According to the report, the fire had been extinguished and the crew then worked to check the surrounding area for hot spots and cleared the apartment of smoke.  On February 13, 2018, Mr. Drusch and others from his department responded to a call for assistance in another community for an apartment fire.  The report states that the crew evacuated all apartments and that the scene was cleared at 2:15 a.m.  On April 18, 2018, Mr. Drusch and others responded to an early morning call for a motor vehicle on fire.  The fire was extinguished.  The report details that the siding on two nearby townhomes had melted as a result of the fire.

According to the testimony of the current Fire Chief, firefighters were exposed to smoke and soot as a result of tending to the scenes of fire, during controlled burn trainings, and while cleaning gear and equipment.  He testified that more precautions have been taken in recent years to avoid smoke exposure if possible.  Firefighters wear a face shield and breathing equipment but not in all instances.  In his testimony, he described the sleep disruption and deprivation as a result of responding to calls in the middle of the night, and the potential of remaining on scene for many hours.  He also explained that the job is stressful because it is dangerous, and it involves responding to scenes of tragic injuries and death in a small community.

During his career as a firefighter, Mr. Drusch was also employed as a full-time electrician.  For purposes of obtaining a commercial driver’s license, he was examined by Dr. Joseph Sierra at Sibley Medical Center on May 7, 2010.  As a result of his physical examination, Dr. Sierra noted that Mr. Drusch’s cardiovascular results were normal.^[1]

Mr. Drusch had a history of cigarette smoking, having smoked about a pack of cigarettes daily since the age of nineteen.  He was diagnosed with high cholesterol, which he treated with cholesterol medications.  Medical history also indicates that his father had congestive heart failure.  Mr. Drusch’s medical history is otherwise unremarkable.^[2]

On the evening of January 12, 2020, Mr. Drusch was on-call and received a page to respond to an emergency.  He and other firefighters reported to the station where they learned that their assistance was not required.  Mr. Drusch then returned home and later complained to his wife of discomfort and indigestion.  In the early morning hours of January 13, 2020, Mr. Drusch was found on the couch unresponsive and not breathing.  He was transported by ambulance to Ridgeview Medical Center where efforts to resuscitate were unsuccessful.  An autopsy was performed and the cause of death was determined to be atherosclerotic cardiovascular disease and acute myocardial infarction.

At the time of his death, Mr. Drusch was forty-nine years old.  He is survived by his wife, whom he had dated since 1991 and married in 2004, and a teenage son.  His wife testified that Mr. Drusch loved his job as a firefighter and went on as many emergency calls as he could.  Mr. Drusch’s public service was recognized and a proclamation was issued by the governor of Minnesota, who ordered flags to be flown at half-staff on January 17, 2020, in honor and remembrance of Mr. Drusch.^[3]

Mr. Drusch’s wife filed a claim for dependency benefits in January 2022.  The self-insured employer denied the claim, asserting that the presumption provided in Minn. Stat. § 176.011, subd. 15(b), does not apply, and that Mr. Drusch’s death was the result of a non-work-related condition.

In support of its denial, the self-insured employer sought the expert medical opinion of Dr. Richard Brody, who conducted a record review and issued a narrative report dated July 1, 2022, and a supplemental report dated May 12, 2023.  Dr. Brody opined that the work activities as a volunteer firefighter did not contribute to the development of coronary artery disease because the emergency call to which Mr. Drusch responded the evening prior to his death was not acutely stressful.  Dr. Brody also noted that Mr. Drusch had a history of smoking and high blood pressure.  Finally, Dr. Brody opined that because psychological stress, smoke inhalation, and sleep disruption are not addressed in the available medical records, Mr. Drusch was not subject to those exposures.^[4]

On behalf of the petitioner, Dr. Charles Wade conducted a record review and issued a narrative report dated March 5, 2023.  Dr. Wade opined that Mr. Drusch’s coronary artery disease, or coronary sclerosis, was sustained as a result of his employment as a firefighter, and specifically, was caused by occupational exposures to sleep disruption, inhaled smoke, and psychosocial stress.^[5]

The petitioner’s claim for dependency benefits came on for hearing before a compensation judge at the Office of Administrative Hearings on October 30, 2023.  By Findings and Order served and filed on January 22, 2024, the compensation judge found that the petitioner failed to prove that the presumption provided under Minn. Stat. § 176.011, subd. 15(b), applied, and that Mr. Drusch did not sustain an occupational disease of coronary sclerosis arising out of and in the course of his employment.  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(3).  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 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).

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), summarily aff’d (Minn. June 3, 1993).

To show entitlement to workers’ compensation benefits for an occupational disease, an employee must show that the disease can be traced to the employment as a direct and proximate cause.^[6]  In this case, the parties do not dispute that the employee, an active-duty firefighter, sustained coronary sclerosis, which led to his death.  Minnesota Statutes section 176.011, subdivision 15(b), provides that, under certain conditions, coronary sclerosis, where sustained by an active-duty firefighter, is presumed to be an occupational disease sustained due to the nature of the employment.^[7]  What was in dispute at the hearing below was whether the conditions prerequisite to the application of the presumption were present, and, if the presumption applied, whether there was sufficient evidence to rebut the presumption; or, if the presumption did not apply, whether the petitioner had otherwise met the burden to prove a causal connection to the employment.

The compensation judge held that the statutory presumption was inapplicable and further concluded that the dependents of Mr. Drusch failed to prove their claim for benefits.  The rationale for the denial is set out in the compensation judge’s memorandum.  The compensation judge listed four statutory elements he concluded were necessary for the attachment of the presumption:

The petitioner argued that strict compliance with the statute is not required and substantial compliance, including an examination at any point during Mr. Drusch’s career, will allow the presumption to be applied.  The employee relied on Linnell v. City of St. Louis Park,^[10] in which the supreme court overturned a compensation judge’s failure to apply the statutory presumption where there was no written medical report showing whether the employee had undergone a preemployment physical examination, although by reasonable inferences from other evidence, it appeared likely that the employee was free of the diseases specified at the onset of the employment.  The court stated:

The petitioner offered evidence to show that Mr. Drusch did not have coronary sclerosis at the time he was hired, since he had undergone numerous physical examinations after being hired which showed normal cardiac health.^[12]  The compensation judge disregarded this evidence, reasoning that “[e]ven if the personal physical exams satisfied the requirements of the statute, the petitioner presented no evidence that any of the physical examinations were filed with the employer prior to January 13, 2020.”^[13]  Based on the absence of proof for filing of reports, the compensation judge concluded he was, “unable to find the evidence or form the necessary inferences for the presumption to apply.”^[14]

On appeal from the Finding and Order, we cannot determine whether the medical evidence of Mr. Drusch’s multiple physical examinations between the years 2009 and 2018, which showed normal cardiac examinations, or the results of the 2010 physical examination performed by Dr. Sierra were analyzed by the compensation judge.  Rather, we note that the compensation judge’s focus was on the failure of proof of filing of the medical reports with the self-insured employer.  While this omission does follow the language of the statute, we conclude that the compensation judge erred in denying the applicability of the presumption on this basis.

In Linnell, the Minnesota Supreme Court reversed the Workers’ Compensation Court of Appeals and remanded the case back to the compensation judge because the court had erroneously failed to consider the presumption that a police officer’s coronary sclerosis was an occupational disease and was due to the nature of his employment.  Noting that the compensation judge and the WCCA considered the presumption inapplicable because the police department had no report on file showing that the employee had received a pre-employment physical, the court held that this was overcome by the fact that evidence was sufficient to draw an inference that the employee did not have coronary sclerosis at the time he was hired.^[15]

On the evidence here presented, we conclude that the employee’s normal cardiac findings on multiple physical examinations for more than 25 years following his hire in 1991 clearly require an inference that he did not have coronary sclerosis at the time he was hired.  As Linnell holds, it is this ultimate finding that is required for the attachment of the presumption, we conclude that the compensation judge erred as a matter of law in denying the application of the presumption.  We reverse and hold that the presumption should have been applied.

The compensation judge went on to analyze whether the petitioner’s evidence, absent the presumption, had proven a connection between Mr. Drusch’s employment and his disease of coronary sclerosis.  This, however, is not the question which is presented for determination by the finder of fact once the presumption applies, as the causal connection is presumed in the employee’s favor, subject to rebuttal by evidence from the respondents.  To that point, the compensation judge failed to reach the question of whether the self-insured employer rebutted the presumption.  We therefore remand to the compensation judge for determination of whether, applying the presumption, the self-insured employer’s evidence provides the necessary “strong showing” to rebut the presumption.

In 1977, the Minnesota Supreme Court reversed a firefighter’s heart attack award because the presumption was not a rule of evidence and because “substantial evidence to rebut the presumption was introduced in this case, the presumption should properly have disappeared.”  Jerabek v. Teleprompter Corp., 255 N.W.2d 377, 380, 29 W.C.D. 621, 625 (Minn. 1977).  The award was upheld after remand.  Jerabek v. City of Rochester, 281 N.W.2d 714, 32 W.C.D. 47 (Minn. 1979).

As the Minnesota Supreme Court noted in Linnell,

In conclusion, we hold that the statutory presumption under Minn. Stat. § 176.011, subd. 15, applies in this case, and accordingly reverse Finding 19 and Orders 1-3, and vacate Findings 11, 18, and 20.  We remand the case to the compensation judge to consider under the Workers’ Compensation Act, which sets forth a statement of purpose and public policy in Minn. Stat. § 176.001,^[17] whether the self-insured employer has rebutted the statutory presumption by a preponderance of the evidence.

I concur with the majority opinion. 

First, I agree with the majority opinion that the petitioner is entitled to the statutory presumption that the employee’s coronary artery disease is work related and that the compensation judge erred as a matter of law in failing to apply the presumption.  There is no evidence but that the employee was free of heart disease at several points in his life and career, and as such, it can be inferred that he was free of heart disease at the time of his hire at the age of twenty.  Moreover, the self-insured employer was well aware of the employee’s good health in that regard, given that it made various medical requirements of the employee during his career.  Further, the self-insured employer chose not to require a pre-employment physical of the employee and cannot now claim that it was unaware of his pre-employment medical status to the petitioner’s detriment.

Second, I agree with the majority opinion that the issue of whether the self-insured employer has rebutted that presumption should be remanded to the compensation judge for determination.  Despite the language of Lagasse^[18] cited by the dissent, and the dissent’s reasonable analysis of the wanting arguments and medical evidence presented by the self-insured employer at the hearing below, this issue is best left to the fact finder.  See Moes v. City of St. Paul, 402 N.W.2d 520, 39 W.C.D. 675 (Minn. 1987) (whether the presumption has been rebutted is a fact question for the compensation judge).  Although under Lagasse, we can make findings on whether the self-insured employer rebutted the presumption, in this case, I do not think we should.

Respectfully, I dissent.

I agree with the majority decision to reverse the compensation judge’s finding that the petitioner is not entitled to the statutory presumption.  Where I depart from the majority is its decision to remand the matter to the compensation judge for findings on whether the self-insured employer has rebutted the presumption.  In my opinion, the undisputed facts of this case support a finding that the self-insured employer has not rebutted the statutory presumption, and the compensation judge’s decision should be reversed in its entirety.

To rebut the presumption, “an employer is required to make a strong showing either that the particular claimant’s duties were significantly less stressful than those of most employees in his occupation or that his disease and disability were the result of recognized causative factors which are not related to his occupation.”  Linnell v. City of St. Louis Park, 305 N.W. 2d 599, 601, 33 W.C.D. 602, 606 (Minn. 1981); See Worden v. Cnty. of Houston, 356 N.W.2d 693, 37 W.C.D. 189 (Minn. 1984).  In this case, the evidence is clear that the self-insured employer failed to do either.

The self-insured employer argued that the employee’s duties were less stressful than those of most other firefighters since this employee was a part-time, rather than a full-time, volunteer firefighter.  However, the testimony of a co-worker, who is also the current Fire Chief, was that it was typical for firefighters of Howard Lake to be on-call, meaning that they had other full-time jobs, like the employee, and worked part time as a firefighter for the city.  He also testified that he had worked with the employee since 1998 (the employee began in 1991), and that since that time, the number of calls per year has increased, and the size of the fire department has decreased, meaning that each firefighter was responding to more calls each year.  In addition, both the co-worker and the employee’s wife testified about the increased duties and stress he had been under since he became the chief in 2014.  The chief not only responds to emergency calls, but is also responsible for the safety of all firefighters and other responders on the scene, as well as paperwork and managing the department. (T. 41, 72-74.)  The fact that the employee was a part-time firefighter, as opposed to full-time, does not rebut the presumption. There is simply no evidence that the employee’s stress was significantly less than that of other firefighters. 

The self-insured employer also argued that the employee’s disease was the result of causative factors which are not related to his occupation.  In support, the self-insured employer submitted the medical reports of Dr. Richard Brody.  (Ex. 5.)  In his report, Dr. Brody explained that the employee died of a heart attack resulting from coronary artery disease.  He noted the employee’s history of being a one-half to one pack-a-day smoker of cigarettes and a history of hyperlipidemia.  Dr. Brody does not, however, opine that this history caused the employee’s coronary artery disease.

Medical evidence to rebut the statutory presumption must be “specific and uncontroverted.”  Worden, 356 N.W.2d at 696, 37 W.C.D. at 192.  The report of Dr. Brody falls short.  He simply notes the employee’s history of smoking and hyperlipidemia.  He does not opine that these are causative factors that played a role in the employee’s development of coronary artery disease. Without medical evidence that the smoking history and hyperlipidemia condition were substantial factors in causing the employee’s coronary artery disease and that the occupational exposures were not substantial factors, the self-insured employer failed to rebut the presumption.

This court may make additional findings that do not conflict with findings of the compensation judge, “so long as those additional findings are also supported by substantial evidence in view of the entire record.”  Lagasse v. Larry Horton and Aspen Waste Systems, Inc., 982 N.W. 2d 189, 202 (Minn. 2022).  The compensation judge did not make any findings regarding whether the self-insured employer rebutted the presumption.  In my opinion, there is no evidence in this record that any reasonable mind could accept that the self-insured employer rebutted the statutory presumption.^[19]  I would reverse the decision of the compensation judge in its entirety.

I join Judge Carlson in her dissenting opinion.