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

ROSIE M BENZ (DECEASED), Applicant

EXCEL BUS LINE INC, Employer

TRAVELERS CASUALTY & SURETY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1994039811

The estate of the deceased applicant, Rosie M. Benz, submitted a petition for commission review alleging error in Administrative Law Judge Janine M. Smiley's Findings and Order issued in this matter on December 8, 1998. At issue is whether Ms. Benz's fatal myocardial infarction arose out of and in the course of her employment with the employer.

On October 5, 1995, Administrative Law Judge Neil J. Krueger issued Findings and an Order which dismissed the application. A petition was filed, and on November 28, 1995, the commission affirmed ALJ Krueger's decision. Appeal was taken to Milwaukee County Circuit Court, where the commission's decision was affirmed. Appeal was then taken to the Court of Appeals, District I, which in a decision issued on September 2, 1997, reversed the commission's decision and remanded for reconsideration based on additional medical evidence. On June 11, 1998, the commission remanded the matter to the Worker's Compensation Division for the taking of new evidence in accordance with the decision of the court of appeals, and for a new decision.

A new hearing was held before ALJ Smiley on September 23, 1998. ALJ Smiley issued a new decision on December 8, 1998, and the applicant petitioned for commission review. On May 25, 1999, the commission ordered the Division to take additional medical evidence, with regard to the specific question of whether the deceased applicant's work-related exposure to cold weather on January 17, 1994, was a materially contributive causative factor in the onset of her myocardial infarction. This new evidence was received at a hearing held on November 10, 1999, and the matter remains before the commission based on the petition from ALJ Smiley's decision.

The commission has carefully reviewed the entire record in this matter. The commission will hereinafter reiterate as its own the Findings of Fact and Conclusions of Law made by ALJ Smiley in her decision dated December 8, 1998, through line 11 of page four of that decision. The remainder of the commission's decision, though it reaches the same ultimate finding, is written separately to incorporate the commission's review of the additional medical opinion submitted by Dr. Zwicke. The commission therefore makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Rosie Benz was born on July 15, 1948. She worked as a school bus driver for the respondent.

Ms. Benz drove a small bus that had the capacity to carry 23 students. She drove a regular morning route. There were only three students on this route and she knew these students by name.

Just two days prior to her death, on January 15, 1994, Ms. Benz went to a hospital emergency room. She had several complaints including breathing difficulties, a productive cough, and congestion. The diagnosis was bronchitis.

The morning of January 17, 1994, was very cold. Ms. Benz began to drive her morning route as usual. Her bus was well heated. Shortly after picking up the third and last student, Ms. Benz reportedly developed breathing problems. She managed to pull the bus over before passing out. Paramedics were called to the scene. Ms. Benz was transported to St. Joseph Hospital where she was declared dead at about 8:15 a.m. The cause of death was an acute myocardial infarction.

At the carrier's request, Dr. Lawrence Hutchinson reviewed certain records and prepared a report dated September 22, 1994. Dr. Hutchinson noted that Ms. Benz had several risk factors for heart attack including diabetes, smoking, high blood cholesterol, and significant obesity. He concluded that decedent's heart attack was a direct result of her severe coronary artery disease which was influenced significantly by her multiple risk factors. In his opinion, there was nothing in the workplace that substantially affected the development of her atherosclerosis or its eventual outcome. In short, Dr. Hutchinson concluded that decedent's fatal heart attack was not work related. However, there was no indication in Dr. Hutchinson's report that he was aware of or considered the decedent's recent medical condition (bronchitis) or the cold weather conditions at the time of her death. Dr. Hutchinson is a cardiovascular and thoracic surgeon.

On behalf of the applicant, Dr. Salvador Del Rosario completed a WC-16-B report dated October 7, 1994. He agreed that decedent's coronary artery disease was significantly influenced by the multiple risk factors she had. However, Dr. Del Rosario also stated that, had she not been working on the coldest day of the year driving "numerous students" to school, in all probability she would not have died that day. In his opinion, work-related stress and the weather contributed to the early onset of a fatal heart attack. According to Dr. Del Rosario, decedent's work exposure aggravated her preexisting condition beyond normal progression. Dr. Del Rosario's medical specialty is not known.

This claim was originally heard before Administrative Law Judge Neil Krueger. He issued an order denying the claim on October 5, 1995. His order was affirmed by the Labor and Industry Review Commission and the Circuit Court. However, the Court of Appeals determined there was insufficient credible evidence to support the commission's order. Specifically, the Court of Appeals stated the record was unclear as to whether Dr. Hutchinson considered pertinent facts regarding decedent's recent medical condition (bronchitis) and the weather conditions on the day she died. The Court of Appeals remanded this matter to allow Dr. Hutchinson the opportunity to reconsider his opinion in light of these pertinent facts.

Unfortunately, Dr. Hutchinson no longer practices in the state of Wisconsin and his current whereabouts are unknown. Accordingly, the respondent was granted permission to submit another opinion from a different doctor. The respondent obtained an opinion from Dr. Dianne Lynn Zwicke. In light of these developments, the applicant was also given an opportunity to submit a new opinion from either Dr. Del Rosario or from a new doctor of her choosing. However, the applicant chose not to submit any additional doctor reports. The applicant did submit a medical treatise in support of her position that there is a strong regional association between cold exposure and high coronary mortality (Exhibit L).

In her medical record review dated September 3, 1998, Dr. Zwicke opined that Ms. Benz' autopsy report showed that she had developed acute pericarditis, indicating to Dr. Zwicke that the myocardial infarction had occurred more than six hours prior to her death. Dr. Zwicke amplified on this observation by noting that the autopsy also showed Ms. Benz had developed transmural necrosis and findings of congestive heart failure, neither of which can develop immediately preceding a sudden death. Dr. Zwicke further opined that Ms. Benz' sudden cardiac death was probably the result of a malignant ventricular arrhythmia, and that she had multiple cardiac risk factors including obesity, excessive smoking, sedentary life style, diabetes, and hyperlipidemia. Finally, Dr. Zwicke opined that there was no correlation between Ms. Benz' sudden cardiac death and her exposure to the work environment of a school bus driver.

In her supplemental report dated June 30, 1999, Dr. Zwicke recounted Ms. Benz' work duties on January 17, 1994, including her exposure to cold air. Dr. Zwicke opined to a reasonable degree of medical probability that there was no direct or indirect cause-and-effect relationship between the cold weather and Ms. Benz' cardiac condition or sudden cardiac death. Dr. Zwicke reiterated the role Ms. Benz' multiple risk factors played in her cardiac and vascular disease.

Given Ms. Benz' multiple risk factors, and the credible observations of Dr. Zwicke which placed the myocardial infarction as having likely occurred at least six hours prior to her death, the commission finds Dr. Zwicke's medical opinion, as clarified by the supplement report of June 30, 1999, entirely credible. The commission is left with a legitimate doubt that any causal relationship existed between the applicant's work exposure, including cold air exposure, and her fatal myocardial infarction.

NOW, THEREFORE, this

ORDER

The Findings of the administrative law judge are set aside and the commission's Findings substituted therefor. The application is dismissed.

Dated and mailed January 24, 2000
benzro.wsd : 185 : 7  ND § 3.31

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: ATTORNEY MICHAEL T SHEEDY
MICHAEL T SHEEDY & ASSOCIATES

ATTORNEY STUART F ROITBURD
LAW OFFICES OF JOHN J SPINDLER

ABBY BUTLER
WORKERS COMPENSATION DIVISION

STEPHEN M SOBOTA
ASSISTANT ATTORNEY GENERAL

CAROL BAUS

Appealed to Circuit Court.  Affirmed October 10, 2000.   Appealed to the Court of Appeals. Affirmed February 5, 2002 (unpublished).

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