LAURIE ANN HOOPMAN (DECD), Applicant
OSHKOSH AREA SCHOOL DIST, Employer
ACUITY INSURANCE CO, Insurer
The surviving spouse 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 November 24, 2009. Oshkosh Area School District and Acuity Insurance Company (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue is whether the deceased applicant's death on March 20, 2007, was causally related to her employment with Oshkosh Area School District.
The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses his Findings and Order. The commission makes the following:
The deceased applicant (hereinafter applicant) worked as a middle school teacher of autistic children for the Oshkosh School District. She died in her sleep after going to bed the night of March 19, 2007, with her children finding her unresponsive in her bed the morning of March 20, 2007. On more than one occasion the applicant had been kicked in the chest by one or more of the autistic students at the employer's school, and credible evidence demonstrated that she had been kicked in the chest by an autistic student who was approximately 5 feet 5 inches tall, and weighed approximately 160 pounds.
An autopsy was performed and a relatively high level of sertraline (Zoloft) was found in her system. Because one of the side effects of sertraline is possible cardiac problems, the medical examiner listed sertraline toxicity as the cause of death. However, later testimony revealed a lower level of sertraline in the applicant's system than had originally been reported to the medical examiner.
A September 2008 opinion was submitted from Dr. Cyril H. Wecht, a physician/attorney and forensic pathologist. Dr. Wecht opined that the postmortem toxicology level of sertraline was "substantially below the reported ranges of lethality associated with the drug." He opined that the most probable cause of death was "a spontaneous onset of cardiac dysrhythmia, associated with previously sustained trauma to the heart and pericardium." Pericardial adhesions (scars) were noted grossly and microscopically. Dr. Wecht opined that there was tangible evidence of physical injury to the outer surface of the heart, and that such adhesions can cause cardiac arrhythmia and produce sudden death. He also noted that there had been a rollover automobile accident in February 2000, resulting in trauma to the applicant's heart, and opined that this accident together with the subsequent work trauma most probably caused the applicant's sudden cardiac death.
The medical examiner found bruises on the applicant's left upper chest, right lateral chest, anterior and posterior surfaces of her arms, posterior right shoulder, nose, right buttock, and left lower extremity. Bruising was also described as being along the left breastbone and left neck, arm, and hand. Additionally, there was a tear of the right atrium without penetration through the heart, and without evidence of recent hemorrhage.
There had been a finding of mild, global cardiomyopathy (damage to the heart muscle) at the time of the February 2000 rollover automobile accident, in which the automobile was apparently traveling at 70 miles per hour. The cause for the cardiomyopathy was not determined with certainty, but was suggested to be most likely viral, with a possible traumatic component. Also found at the time of the automobile accident was a left bundle branch block (abnormality of the heart's electrical conduction system).
One of the applicant's coworker's, a teaching assistant named Victoria Wolosek, credibly testified that while performing her work duties the applicant had been kicked in the chest area "on several occasions." Wolosek recalled firsthand an occasion when the applicant and others were holding down the above-described autistic student who was flailing on the floor, when he suddenly kicked up into the applicant's chest. Wolosek recalled that this happened in the morning, and that in the afternoon of the same day the applicant came back after having lunch with the same student, and was holding her chest saying "...he got me." The applicant did not report a chest injury that day and kept working.
Another teaching assistant, Dawn Sadlon, credibly testified that in the week prior to the applicant's death she and another assistant, inferred to have been Wolosek, came into a room and saw the applicant bent over and holding her chest. Sadlon noted that at that moment the applicant said: "He kicked me again."
An additional opinion was obtained from Dr. Thomas S. Haas, the chairman of the Department of Pathology at Mercy Hospital in Janesville. Dr. Haas opined that the autopsy report should have been more thorough, with more sections taken from the cardiac muscle. However, he opined that the atrial tear showed "no vital changes" and was most likely reflective of aggressive CPR efforts. He opined that sertraline toxicity was not the cause of death, particularly in light of the revised levels of that substance found in the final toxicology report. He indicated he personally believed the trauma the applicant sustained in January and March of 2007, and possibly from the 2000 automobile accident, caused the applicant's death. He noted that this conclusion could neither be confirmed or ruled out in the postmortem findings, but nevertheless reiterated that he believed the applicant's death was the result of delayed blunt force trauma to the chest region and heart
A medical opinion was obtained from Dr. Diane Zwicke dated February 26, 2009. Dr. Zwicke noted the February 2000 findings of cardiomyopathy and a bundle branch block. She also noted that the applicant had sustained documented bites and hits from the autistic students, but noted her understanding that there had been no documented injury to the chest or abdomen. This is accurate only to the extent that the applicant never filed a written report of a chest or abdominal injury with the employer. Dr. Zwicke wrote that that there was no data to indicate employment-related trauma to the thorax at any time, and no evidence whatsoever of any employment-related trauma to explain the bruising identified in the applicant's autopsy. She opined that the posterior wall tear found in the applicant's right atrium "may be secondary to CPR efforts," although she also noted that there had been a "...very rapid cessation of resuscitation activities, as it was clearly apparent that Ms. Hoopman had died a significant time earlier." Dr. Zwicke additionally noted "...the autopsy report indicates more bruising than would expect in the chest wall and upper extremities from CPR." Dr. Zwicke recounted that the applicant had indicated to others in the two or three days prior to her death that she was feeling poorly, and that she had left work early due to this discomfort on Monday, March 19, 2007. Dr. Zwicke also wrote:
"Of specific concern is a deep, right chest wall hemorrhage, right hilar hemorrhage, along with the non-full thickness right atrial tear-highly suggestive of traumatic injury. These findings confirm recent trauma of some kind to the body."
Dr. Zwicke did not believe these findings were related to the applicant's work. She noted that sertraline does have occasional cardiac side effects including palpitations, arrhythmia, tachycardia, bradycardia, and ventricular block. She opined that there was no work-related cause for the applicant's death, that an arrhythmia death such as ventricular tachycardia was "certainly a possibility," but that: "The cause of her sudden cardiac death is not known at this time."
On May 6, 2009, Dr. Wecht submitted a written response to Dr. Zwicke's report. He opined that the CPR efforts were too limited to have caused the applicant's chest injuries and atrial tear. He dismissed the cardiac side effects of sertraline as non-causative in the applicant's death, and reiterated his opinion linking the death to blunt force trauma to the chest sustained in the applicant's employment.
An additional opinion was obtained from another forensic pathologist, Dr. Jeffrey Jentzen, dated June 4, 2009. Dr. Jentzen reviewed medical records including the autopsy and toxicology report. He opined that to a reasonable degree of medical certainty the applicant died as a result of sertraline toxicity. He further opined that the atrial tear appeared to be related to cardiopulmonary resuscitation attempts.
On October 14, 2009, Dr. Zwicke submitted a written response to Dr. Wecht's report, after also reviewing Dr. Jentzen's report. Dr. Zwicke reiterated her understanding that there was no evidence of employment-related injury to the applicant's chest, and wrote: "The intrathoracic injuries may be secondary to CPR, as this is the only known and identified trauma to Ms. Hoopman's chest." Dr. Zwicke characterized Dr. Wecht's conclusion of blunt force trauma to the applicant's chest as constituting conjecture.
The administrative law judge adopted Dr. Zwicke's opinion and dismissed the applicant's claim. In consultation with the commission, the administrative law judge indicated he had not found the testimony of either Victoria Wolosek or Dawn Sadlon to have been persuasive with respect to the applicant having been kicked in the chest at work. However, he subsequently acknowledged that in his decision he found it was "entirely possible" that the applicant had been kicked or struck in the chest at work.
The commission found Wolosek's and Sadlon's testimonies to be credible. Their testimony was consistent with the other evidence describing the physical attacks the applicant was subjected to in her employment with the employer. Wolosek credibly testified that she was personally assisting the applicant in holding down the autistic student on the floor when the student kicked his foot up into the applicant's chest, and that after the applicant had been at lunch with the student that same day, she came back holding her chest and indicated she had been struck there again. This was consistent with Sadlon's testimony concerning the applicant's behavior and statement after returning from lunch. Wolosek and Sadlon had different recollections concerning the date they saw the applicant come back from lunch holding her chest. Sadlon was definite in her recollection that this incident occurred the day before St. Patrick's Day, Friday, March 16, 2007. Wolosek was much less certain of the exact date and testified: "I don't recall exactly when, but I want to say on or around the early part of March because it was around my brother's birthday...."(1) The commission found Sadlon's memory of the date to be specific and credible. Additionally, if Wolosek, who testified after Sadlon, had been attempting to fabricate the incident, it is inferred that she would have simply agreed with Sadlon's recollection of the date. Instead, Wolosek acknowledged her inability to recall the date.
The applicant was kicked in the chest by the autistic student at least once and most probably twice on March 16, 2007. This fact severely undercuts Dr. Zwicke's opinion regarding causation, because she based her opinion on the assumption the applicant had sustained no employment-related trauma to the chest. In describing the applicant's chest hemorrhage and atrial tear identified in the autopsy, Dr. Zwicke acknowledged that there had been "recent trauma" to the applicant's body. Those parts of her opinion that arguably link the applicant's chest trauma to CPR are internally inconsistent and fall far short of being expressed to a reasonable degree of medical probability.(2)
Dr. Wecht provided a credible and consistent opinion linking the applicant's
death in substantial part to her employment-related chest trauma.(3) Accordingly, the commission finds the applicant's sudden cardiac death on March 20, 2007, was caused in substantial part by chest trauma sustained in her employment with the employer. March 20, 2007, is the date of injury because that is the date the
work-related disability manifested itself in the form of the sudden cardiac death.
The matter will be remanded to the department for calculation and division of the death benefits due pursuant to Wis. Stat. § § 102.46 and 102.51. The conceded average weekly wage is $630.42. The department will also be directed to determine what additional death benefits are due, if any, to the deceased applicant's children pursuant to Wis. Stat. § 102.49(1).
Pursuant to Wis. Stat. § 102.49(5), respondents will additionally be ordered to pay $20,000 to the Work Injury Supplemental Benefit Fund.
Pursuant to Wis. Stat. § 102.50, respondents will additionally be ordered to pay $6,000 as reasonable expense for burial. The record fails to clarify whether the burial expenses were previously paid by Steven Hoopman, or whether they remain outstanding. The commission will order payment to Mr. Hoopman under the assumption that he paid these expenses. Of course, if the burial expenses remain outstanding, payment shall be made to the appropriate debtor(s).
Department calculations shall also take into account the appropriate attorney's fee, and costs if any, that are due applicant's attorney.
This order will be left interlocutory in order to facilitate calculation and division of the compensation that is due pursuant to the foregoing findings and statutes. The order is final with respect to the contested issue of causation.
NOW, THERFORE, this
The Findings and Order of the administrative law judge are reversed. The matter is remanded to the department for calculation on division of death benefits due pursuant to the provisions of Wis. Stat. §§ 102.46, 102.49(1), and 102.51. The department shall also fix the attorney fee, and any reasonable costs due Attorney Terence J. Bouressa.
Additionally, within 30 days from this date and pursuant to Wis. Stat. § 102.49(5), respondents shall pay to the Work Injury Supplemental Benefit Fund the sum of Twenty thousand dollars ($20,000.00); and pursuant to Wis. Stat. § 102.50, respondents shall pay to Steven Hoopman reimbursement for burial expenses in the amount of Six thousand dollars ($6,000.00) (contingent upon Mr. Hoopman having previously paid these expenses).
Jurisdiction is reserved solely with respect to any dispute that may arise concerning the calculation and/or division of death benefits to be made in accordance with the statutes and the above findings.
Dated and mailed July 27, 2010
hoopmla : 185: 5 ND6 3.3
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney Terence J. Bouressa
Attorney Jeffrey J. Strande
Appealed to circuit court.
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