STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

STEPHEN C HINTZ (DEC'D), Applicant

SHORELAND LUTHERAN HIGH SCHOOL, Employer

CHURCH MUTUAL INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2006-034206


The wife of the deceased applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on January 8, 2008. Shoreland Lutheran High School and Church Mutual Insurance Company (Respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue are whether or not the applicant sustained a fatal heart attack arising out of and in the course of his employment with the employer on September 18, 2006, and if so, what compensation and medical expenses are due.

The commission has carefully reviewed the entire record in this matter and hereby reverses the administrative law judge's Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The deceased applicant, birth date April 1, 1950, was employed as a teacher and cross country coach at the employer's high school. He was an experienced runner, and in the years prior to the work incident he had run in his age-level category in several cross country events. On September 18, 2006, he was coaching a cross country practice session involving the boys' and girls' teams that was taking place at the UW Parkside cross country course. Initially, there was a stretching session in which the applicant participated. Then there was a warm-up run done at a slow, "almost jogging" pace around part of the course. The applicant also participated in this warm-up run that lasted about ten minutes.

Next, the teams were instructed that they would run an 800-meter course oval that had been laid out for their practice, and this was to be run at the pace at which cross country races were run. The run was designed to be a hard workout to build running strength and endurance. There were three groups of runners. The first group consisted of the fastest individuals on the boys' team, the second group included the slower boys and some girls, and the third group included only girls aged 14 to 18. The third group ran at the slowest pace, and this was the group with which the applicant ran. Even though they were the slowest group, they were running at the "race pace" for a high school cross country girls' team.

The applicant had run approximately 400 meters with this group when he collapsed on the track.(1) He had suffered a myocardial infarction due to ruptured plaque in his left anterior descending artery. He was without a pulse and was not breathing. One of his students and another coach began CPR, and after an electric defibrillator was located one electric charge was administered. EMS personnel arrived after approximately 15 minutes and took over care of the applicant. The EMS report indicates that upon their arrival, the applicant had a "heart rhythm" of 15-20 beats per minute, but no actual pulse. The EMS personnel were able to restart the applicant's pulse approximately 13 minutes after their arrival.

The applicant was taken by ambulance to the hospital where the blocked artery was eventually reopened. However, the applicant's brain had been deprived of adequate oxygen for such an extensive period of time that he was unable to recover. He was pronounced dead on September 27, 2006, due to irreversible brain injury.

The applicant's treating physician, Dr. Katherine M. Abbo, opined on December 4, 2008, that:

"It is therefore my medical opinion that Pastor Hintz, while exerting himself during his routine work duties, aggravated and precipitated a plaque rupture while sustaining a heart attack which was accompanied by a neurologic insult causing irreversible brain injury." (Exhibit J).

On November 5, 2007, Dr. Abbo had opined:

"The anoxia (loss of oxygen to his brain) was related to the fact that at the time of his heart attack he was engaged in extreme exercise which used up his glucose and glycogen stores leaving no reserve for any cerebral function. I do feel that if he had not been running at such a extreme pace, despite a major MI he probably would have survived the event. In fact, his heart muscle was saved with no injury, after the closed artery was re-opened. Unfortunately, his death was from the lack of oxygen and nutrients to his brain, which was exacerbated by the extreme exertion, causing a high metabolic rate compounded by a loss of blood supply after closure of the coronary artery." (Exhibit A).

At respondents' request, Dr. Barry K. Gimbel performed a medical records review and submitted a report dated December 27, 2006. Dr. Gimbel opined that there was no causal relationship between the applicant's "warm-up exercises" and his myocardial infarction. Dr. Gimbel did not elaborate as to what he understood the "warm-up exercises" to have entailed.

Also at respondents' request, Dr. Paul S. Weisman performed a medical records review and submitted a report dated October 28, 2008. He also submitted a supplemental report dated December 10, 2008. In his first report, Dr. Weisman accurately recounted the applicant's physical activities performed prior to his collapse, noting that the infarction occurred after the applicant had run approximately 400 meters at the pace of a cross country race. Dr. Weisman opined in his first report:

"To a reasonable degree of medical certainty, I can say that there were no extreme conditions that were unusual during Pastor Hintz's working day that were either the sole cause or a material causative factor in the myocardial infarction or the subsequent brain damage that he suffered." (Exhibit 8).

In his supplemental report, Dr. Weisman opined:

"He was running 400 meters at a pace that typically is run at 3-1/2 miles. This would be a few minutes of moderate jogging. There is no evidence of 'burst exertion' or 'sprinting' as has been suggested by Dr. Abbo's letter. Many more people have plaque rupture at rest than they do during exercise. It does not seem that the coach was strenuously exercising, considering what excellent shape he was in, and he certainly was not 'sprinting'.

A study accompanying the treating cardiologist's opinion by Burke, et al, concludes looking at a total of 141 people that 'in men with severe coronary artery disease, sudden death related to exertion was associated with acute plaque rupture.' It seems intuitive and correct that this statement is true. In men with severe coronary disease, strenuous exertion leads to an increase in plaque rupture. Whether this is the case in Coach Hintz will remain unknown to a reasonable degree of medical certainty." (Exhibit 9).

The administrative law judge denied the claim because the applicant was an experienced runner, and he inferred that the physical activities the applicant performed on September 18, 2006, would not have been strenuous for an experienced runner. The ALJ additionally found there was no work causation because he inferred that the applicant was not under any "extreme exertion" when he collapsed.

In heart disease cases the Wisconsin Courts have focused on whether the record supports the commission's choice of a particular physician's medical opinion, regarding whether or not the physical or emotional stress of the work activity precipitated, aggravated, and accelerated, the preexisting heart disease beyond normal progression. See Manitowoc County v. ILHR Dept. 88 Wis. 2d 430, 437, 276 N.W.2d 755 (1979) (compensation allowed); Theodore Fleisner, Inc. v. DILHR, 65 Wis. 2d 317, 323-24, 222 N.W.2d 600 (1974) (compensation allowed); Pitsch v. ILHR Dept., 47 Wis. 2d 55, 60-61, 176 N.W.2d 390 (1970) (compensation denied); and Tews Lime and Cement Co. v. ILHR Dept., 38 Wis. 2d 665, 671, 158 N.W.2d 377 (1968) (compensation allowed).

These cases establish that there is no particular threshold level of exertion or stress that must be demonstrated in order to find legal causation in heart attack cases; rather, the focus is on whether or not medical causation is demonstrated by a credible medical opinion. See in particular, Pitsch v. ILHR Dept., 47 Wis. 2d at 63-64.

The commission does not find credible find Dr. Abbo's opinion that the applicant's brain probably would not have been so irreversibly damaged had his glucose level not been depleted from running. As Dr. Weisman noted, the applicant had no pulse when the EMS personnel arrived, and so for 15 minutes the applicant would have had no blood pressure, and this in itself would have caused irreversible brain damage.

The commission does find credible Dr. Abbo's medical opinion that the physical exertion of the running the applicant was performing when he collapsed on September 18, 2006, aggravated and precipitated the plaque rupture that resulted in his myocardial infarction and death.(2) Dr. Abbo credibly opined that plaque ruptures have been associated with physical exertion. Contrary to Dr. Weisman's "moderate jogging" description given in his supplemental report, the applicant was running at a strenuous pace when he collapsed from the infarction. Dr. Weisman also backtracked on his causation opinion in his supplemental report, indicating that causation "...will remain unknown to a reasonable degree of medical certainty."

Pursuant to Wis. Stat. 102.46, Kathryn Hintz, the wife of the deceased applicant, is entitled to a death benefit in the total amount of $200,547.36, which represents four times the deceased applicant's average annual earnings.(3) Respondents are entitled to a credit for $150.00 in compensation previously paid. A 20 percent attorney's fee is also due against the death benefit. The commission will remand the matter to the department for calculation of the exact amounts of accrued and unaccrued death benefit and for calculation of the present value attorney's fee.

Pursuant to Wis. Stat. § 102.50, respondents are additionally liable for burial expense in the amount of $6,000.00.

Pursuant to Wis. Stat. § 102.49(5), respondents shall additionally pay the sum of $20,000.00 to the Work Injury Supplemental Benefit Fund.

Additionally, respondents shall pay reasonably required medical expenses as follows: reimbursement to CMS Insurance in the total amount of $58,425.66; and reimbursement to Kathryn Hintz for out-of-pocket medical payments, the amount of $1,082.70.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Order of the administrative law judge are reversed. Within 30 days from this date, respondents shall pay as reimbursement to CMS Insurance the sum of Fifty-eight thousand four hundred twenty-five dollars and sixty-six cents ($58,425.66); reimbursement for out-of-pocket medical expense to Kathryn Hintz in the amount of One thousand eighty-two dollars and seventy cents ($1,082.70); to Kathryn Hintz for burial expense the sum of Six thousand dollars ($6,000.00); and to the Work Injury Supplemental Benefit Fund the sum of Twenty thousand dollars ($20,000.00).

The matter is remanded to the department for calculation of the exact amounts to be paid to Kathryn Hintz and her attorney for the death benefit and attorney fees, due in accordance with the above findings.

Jurisdiction is reserved solely with respect to calculation of the death benefit and attorney fee.

Dated and mailed August 18, 2009
hintzst : 185 : 5 ND § 3.37

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

The commission had no disagreement with any credibility determination made by the administrative law judge with regard to any of the hearing witnesses. Rather, the commission's reversal of his decision was based on a differing analysis of the written medical opinions, and on established Wisconsin law regarding causation in heart attack cases.

cc: Ms. Holly Lutz
Ms. Abby Butler (WC Division)
Mr. Corey Finkelmeyer


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Footnotes:

(1)( Back ) 400 meters is 437.45 yards, which is almost exactly a quarter mile.

(2)( Back ) Dr. Abbo used the descriptive terms "precipitated" and "aggravated." The additional term of "accelerated" is set forth in Lewellyn v. ILHR, 38 Wis. 2d 43, 59, 155 N.W.2d 678 (1968). However, the commission and the courts routinely look to the substance of a medical report or opinion, rather than to the precise wording, when determining whether or not the physician has described work-related causation. Unruh v. Industrial Commission, 8 Wis. 2d, 394, 402, 99 N.W.2d 182 (1959); Johnson Welding and Manufacturing Company v. LIRC, et al, No. 94-CV-704 (Wis. Cir. Ct. Eau Claire County July 3, 1985); Harnischfeger v. LIRC, et al, No. 95-CV-0212 (Unpublished Wis. Ct. App. August 8, 1995); and George A. Nohelty v. County of Waukesha, W.C. Claim No. 2000-005782 (LIRC June 18, 2002).

(3)( Back ) Pursuant to Wis. Stat. 102.11(2), the "average annual earnings" cannot be less than four times the deceased applicant's actual earnings in the year immediately preceding his fatal injury. His actual earnings in that year were 52 times $964.17, or $50,136.84, which multiplied by four equals $200,547.36.

 


uploaded 2009/09/18