STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
RAYMOND EMMRICH, Decedent
JERI EMMRICH, Applicant
TOWN OF KIMBALL, Employer
EMPLOYERS MUTUAL CASUALTY CO, Insurer
WORK INJURY SUPPLEMENTAL BENEFIT FUND, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1997-002159
On May 2, 1997, Jeri Emmrich, the widow of Raymond Emmrich (the decedent) filed an application for hearing claiming death benefits, burial allowance, and medical expenses arising from the decedent's death while responding to a fire as a volunteer firefighter for the employer on December 29, 1996. Prior to the hearing, the employer conceded jurisdictional facts, an average weekly wage at the statutory maximum, that the decedent died on December 29, 1996, and that at the time he was performing services growing out of and incidental to his employment. At issue before the ALJ, and now before the commission, is whether the accident or disease causing the decedent's death on December 29, 1996, arose out of his employment with the employer.
Hearing was held on May 3, 2000. Thereafter, the ALJ issued his decision dismissing the application on July 20, 2000. Mrs. Emmrich filed a timely petition for commission review.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Facts
The decedent was born in 1942. He and his wife owned a camper sales business. He became a volunteer firefighter in about 1981. He died suddenly on December 29, 1996, while driving a fire truck to a fire.
On December 29, 1996, the decedent received a fire call involving a fire in a home sauna. According to his wife, the decedent had done nothing strenuous that day. The decedent's wife also testified that the decedent became excited by the fire call, and that it had been seven months since the last call. Another volunteer and friend of the decedent's, Gary Askola, said it had been six to eight months since the last call.
Mr. Askola also testified that the decedent was the first one to the firehouse that day (Askola was the second). Mr. Askola testified that the decedent as "very excited, hyper." Mr. Askola described the decedent's eyes as excited, and his face as flushed and red. Mr. Askola's testimony indicates that he and the decedent were aware that the fire was in a sauna outside of a house, but that the sauna was close to the house, and the homeowners were concerned. In addition, another volunteer, Steve Tomlanovich testified that "the adrenaline just goes up" when one responds to a fire call.
Mr. Askola also testified that the decedent normally drove a tanker truck that had power steering. On December 29, 1996, however, the decedent drove a 1977 pumper truck that was harder to steer because it did not have power steering. Mr. Askola, whose day job involves the operation of heavy equipment, found the pumper truck hard to steer. Indeed, Mr. Askola and other fire fighters had complained about the manual steering in the 1977 pumper truck to a local board.
Other volunteer firefighters, dairy farmer Roger Baker and Steve Tomlanovich, verified that the 1977 pumper truck did not have power steering, and that there had even been talk of having power steering added to the vehicle. Both Mr. Baker and Mr. Tomlanovich said the vehicle would be easier to handle with power steering. Mr. Baker said handling the power steering would be hard for a little guy, but also that the decedent was not a little guy. Mr. Tomlanovich acknowledged some difficulty handling the pumper truck, particularly maneuvering it in the yard.
At any rate, as the decedent drove the 1977 pumper truck without power steering to the fire on December 29, 1996, he made a hard right coming out of the fire station on to Center Drive. The decedent then proceeded down Center Drive for perhaps 60 yards, and made a right turn on a county highway. Shortly thereafter, the decedent and the vehicle went into a ditch. It does not appear the decedent was more than a quarter mile from the fire station at the time.
Mr. Askola saw the decedent slumped over in the pumper truck in the ditch. The decedent was pulseless and nonbreathing. A bystander (presumably Mr. Askola) started CPR. The paramedics arrived and transported the decedent to the hospital. Hospital personnel tried, unsuccessfully, to revive him. The emergency room doctor's diagnostic impression was coronary arrest.
An autopsy was done by a pathologist, Charles Iknayan, M.D.; his report is in the file at Exhibit 1. The report indicates the autopsy was done on December 30, 1996, and signed by Dr. Iknayan on May 28, 1997. The examination consisted of a gross, or straight visual, examination dictated for transcription on December 31, 1996, and a microscopic examination dictated for transcription on May 27, 1997.
In his report, Dr. Iknayan noted severe calcific atherosclerosis of the coronary arteries, with multiple regions of more than 75 percent narrowing. He also documented findings suggesting three prior episodes of myocardial infarction. In addition to evidence of cardiovascular disease, Dr. Iknayan noted evidence of diabetes.
In summary, Dr. Iknayan reported:
"This 54-year old white male died suddenly as a result of atherosclerotic cardiovascular disease. At autopsy changes of acute myocardial infarction were noted present however, such changes are frequently not identifiable unless a survival period of a minimum of 6- 12 hours has occurred. There was enlargement of the heart with multiple foci of scarring. Three of these were of significant size to be evidence of prior myocardial infarctions. The congestive changes noted in many organs are result of a sudden cardiac standstill. A cortical adenoma of the left adrenal gland was present. This is of unknown clinical significance, however, most of such lesions are non- hormone producing. Fatty change of the liver is a finding not infrequently found in association with diabetes mellitus."
Exhibit 1, autopsy report, page 1.
In describing the gross appearance of the heart, Dr. Iknayan reiterated that the heart was
enlarged, that were multiple (at least three) foci of the replacement of cardiac muscle
with grayish tissue. In describing the gross appearance of the coronary arteries, the
doctor noted moderate to severe atherosclerosis most pronounced in the distal portions of
the major arteries. The lumen of the anterior descending branch of the left coronary
artery was almost totally occluded (or blocked) near the apex of the heart. Exhibit 1,
autopsy report, page 3.
On microscopic examination of the heart, Dr. Iknayan noted that multiple sections of the left ventricle had extensive mature fibrosis with regions of moderate to severe thinning of the myocardium [the sac that contains the heart.] There were no acute changes in those regions, however. Exhibit 1, autopsy report, page 4.
On microscopic evaluation of the coronary arteries, Dr. Iknayan noted extensive severe calcific atherosclerosis with regions of 75 percent or greater luminal narrowing. Acute thrombosis (1) was not present. Exhibit 1, autopsy report, page 4.
Dr. Iknayan also signed the death certificate (exhibit C) on January 2, 1997, apparently after the gross autopsy was done but before the microscopic part of the autopsy. (2) It lists the cause of death as an acute myocardial infarction occurring about two hours before the death, and explains that the infarction was a consequence of years of cardiovascular disease. It is significant to note, however, that in the final report of the autopsy signed months later in May 1997, Dr. Iknayan does not diagnose a myocardial infarction occurring on the day of the decedent's death.
2. Expert medical opinion.
The record includes expert medical opinion from three sources. The decedent submits a letter from Dr. Iknayan who did the autopsy, and a practitioner's report on form WC-16B from Marc Neustel, M.D., a cardiologist. The respondent submits a report from Dianne L. Zwicke, M.D., also a cardiologist.
Dr. Iknayan's letter is at exhibit A. He wrote it in response to a letter from the decedent's attorney which apparently specifically requested the doctor to comment on the possible causal role of steering the fire truck.
Dr. Iknayan began by noting that the decedent had severe atherosclerotic cardiovascular disease (hardening of the arteries) with multiple regions of the decedent's coronary arteries having 75 percent or greater restriction of blood flow. He reported moderate to severe enlargement of the heart, consistent with three prior episodes of myocardial infarction (heart attack.)
Dr. Iknayan continued:
"Given the severity of Mr. Emmrich's cardiovascular disease, a sudden fatal episode is not in the least surprising, especially given the stresses of the emergency situation at the time of his death and if a large amount of exertion was indeed required to steer the fire truck, this certainly could have contributed to Mr. Emmrich's sudden death."
Exhibit A. In this letter, like the final autopsy report, Dr Iknayan did not diagnose a heart attack, or myocardial infarction, on the day of the decedent's death, but referred to a "sudden fatal episode" or "sudden death."
In addition, the decedent submits the report of Marc C. Neustel. He, too, noted the diffuse and severe calcific atherosclerosis, and an enlarged heart with evidence of three previous myocardial infarctions. The decedent also had congestive heart failure, most likely related to his ischemic cardiomyopathy. (3) He had no doubt the decedent had advanced coronary artery disease for a 54-year old male as well as evidence for myocardial scarring.
Regarding causation, Dr. Neustel marked a box on the WC-16B form indicating that the work event on December 29, 1996 caused the decedent's death by precipitation, aggravation and acceleration of a pre-existing progressively deteriorating or degenerative condition beyond normal progression. In an attached letter, Dr. Neustel explained his opinion regarding causation:
"At the time of his death he was recorded to have been driving a fire truck, and indeed there is no doubt that the patient's catecholamine level had to be increased both due to his physical exertion and the excitement of his response. This truly will lower ventricular fibrillatory thresholds, and in this patient who is relatively high risk for a sudden cardiac death the events of the day were contributory given the patient's underlying ischemic cardiomyopathy."
Exhibit B. Dr. Neustel's report also does not diagnose a heart attack, nor does it rely on Dr. Iknayan's death certificate listing that as a cause of death, but rather mentions a lowered ventricular fibrillatory threshold and sudden cardiac death.
Dr. Zwicke submits three reports for the employer.
In the first, dated April 19, 1998, she noted the decedent was 54-year old with significant heart disease, including blood vessel disease which had already caused three prior heart attacks. She also states that:
"[r]eports by coworkers, by investigators, and by my visit to a fire department clearly demonstrate that no significant physical activity was required in driving the `pumper truck.' Response to fire alarms was a normal activity for Mr. Emmrich, as he had been performing this for greater than 20 years in the Town of Kimball."
Exhibit 2, report of Zwicke, page 2.
In discussing the decedent's cause of death, Dr. Zwicke states the decedent suffered sudden cardiac death, but that there was no evidence of an acute myocardial infarction (heart attack.) She went on to point out that there was no thrombus, or blood clot, found in a coronary artery to indicate an acute process (i.e., a heart attack). Instead, Dr. Zwicke believed that the decedent "succumbed to a malignant ventricular arrhythmia . due to irritability of the heart muscle around an already scarred area from a prior heart attack." Exhibit 2, page 2.
Noting again that driving the pumper truck required no unusual physical activity, she concluded driving the truck had no relationship to the decedent's death. She also ruled out the decedent's activities as a volunteer firefighter as playing any causal role in the acceleration or precipitation of his coronary artery disease, and that it was his prior heart disease, not his activities as a firefighter, that caused his death.
Dr. Zwicke issued a second report, dated December 15, 1998, to address Dr. Iknayan's opinion discussed above. She disagreed with Dr. Iknayan's conclusion that the stresses of the emergency situation and steering the fire truck contributed to the decedent's death. In explaining her disagreement, she states:
"Comprehensive review of Mr. Emmrich's history and records indicate that he was a participant on the Volunteer Fire Department for greater than 20 years, was able to manage and run a boat-trailer- RV business, participate in bowling leagues, go hunting and supervise softball leagues. As is obvious from the above, Mr. Emmrich had incorporated responding to fire emergencies and participating in physical and relatively stressful physical activities into his usual affairs. During my visit to the Milwaukee Fire Department, I took the opportunity to steer a similar fire truck and clearly determined that this did not require any significantly abnormal amount of physical strength."
Exhibit 3.
Finally, Dr. Zwicke wrote a report dated August 22, 1999, to respond to Dr. Neustel's opinion. She reports she disagrees with Dr. Neustel's opinion that "physical exertion and excitement of or response as a firefighter were contributory to Mr. Emmrich's death." In countering this opinion, Dr. Zwicke reiterates that she drove a fire truck in Milwaukee (which she now describes as "identical" to the 1977 pumper truck without power steering driven by the decedent) and that it did not require any significant physical exertion. She described the presumption that driving the pumper truck required significant physical exertion as false.
Dr. Zwicke acknowledged that high catecholamines, or rapid increases in catecholamine levels, lower the ventricular fibrillation threshold. However, she asserted that the fire was of a non-emergency nature, and that the decedent's catecholamines would be higher with any of a variety of everyday activities, including climbing a flight of stairs, sexual intercourse, participation in physical sports activities, or being in a near miss car accident.
She went on to state that, given the severe myocardial damage sustained by the decedent, with evidence of three prior silent myocardial infarctions, the decedent could have developed unexpected ventricular tachycardia deteriorating into fibrillation even without any associated physical or emotional events.
Finally, Dr. Zwicke noted that:
"...If one wishes to believe that Mr. Emmrich's usual physical activity of responding to a fire call and driving a fire truck to be the cause of his sudden cardiac death, then only aggravation of the underlying disease would apply. Mr. Emmrich's duties as a volunteer firefighter did not precipitate his coronary artery disease or myocardial scarring or accelerate it. Therefore, in the farthest sense, the activities of responding to a fire would only have met the criteria of aggravation, not precipitation and acceleration of the underlying disease.
"Overall, I continue to support the opinions reached in my original report. Mr. Emmrich has significant undiagnosed cardiac disease that resulted in an unexpected cardiac death while he was performing his usual and routine duties. There were no significant environmental, physical or emotional circumstances."
Exhibit 5, page 2.
3. The law.
The supreme court has held that "myocardial degeneration and arteriosclerosis, of course, are not occupational diseases and are not compensable as such since there is no relation between the employment and the disorder." Tews Lime Cement Co. v. ILHR Dept., 38 Wis. 2d 665, 671 (1968). Nonetheless, the Tews court also stated that "when heart failure is caused by employment or employment-related exertion, it is compensable as an industrial accident, regardless of whether or not there was pre-existing myocardial degeneration or arteriosclerosis." Id. (4) The court went on to note that recovery for heart failure caused by employment or employment-related exertion would be covered under the "third criterion" from Lewellyn v. DILHR, 38 Wis. 2d 43, 59-60 (1968), which contemplates coverage for work injuries where there is no definite breakage but where work activity precipitates, aggravates and accelerates a progressively degenerative condition beyond normal progression. Id.
In a subsequent case, the supreme court considered a doctor's statement that, given a worker's underlying pathology, an infarction could occur at any time and that work itself has little effect on the basic pathology, though severe exertion could play a part in precipitating the acute episode. Theodore Fleisner, Inc., v. ILHR Dept., 65 Wis. 2d 317, 323 (1974). The court held that the doctor's statement was not necessarily inconsistent with a finding that the heart attack arose out of the worker's employment, based on the rule set out in Tews.
The supreme court has also distinguished the legal test of what kind of exertion satisfies the statutory "arising out of employment" question from the medical test of whether that exertion causes a collapse or heart attack. Pitsch v. DILHR, 47 Wis. 2d 55, 59-60 (1970). The court held an injured worker is not required to show strain or exertion greater than that normally required by the decedent's work effort to make a legally sufficient case on causation. However, the court noted that this rule does not preclude a doctor, when considering medical causation, from considering whether the decedent was engaged in his usual work at the time of injury. Id., at 47 Wis. 2d 60, 64.
Nonetheless, the Pitsch court stated that a medical expert should not automatically conclude that whenever a worker is injured while performing normal duties that the injury was caused by a pre-existing condition rather than work. In other words, the court stated, a doctor should actually exercise his or her medical judgment. The court also held that in choosing between conflicting medical testimony as to the cause of an injury, the commission could not disregard the opinion of an expert merely because the expert considered whether the worker was performing his or usual tasks at the time of injury. The court concluded that it would be error for the commission to require a showing that a worker was engaged in unusual physical activity as a legal prerequisite to recovery. Pitsch, supra, at 47 Wis. 2d 64-65.
In short, the commission reads Pitsch to state that the commission may properly rely on a medical expert's opinion that a worker's level of exertion was insufficient to cause a heart attack, when the medical expert bases that judgment on the fact that the worker was engaged in his normal duties when he suffered the heart attack. In other words, the level of exertion is a factor in an expert's judgment on medical causation. However, neither the commission, nor a medical expert, should automatically conclude that the law bars recovery because the decedent was engaged in his usual level of exertion when he suffers an injury, whether from heart attack or otherwise.
Beyond these general principles, the cases dealing with heart attacks suffered at work indicate that the courts use a case-by-case analysis on the question of medical causation. In Tews, supra, an individual who had a pre-existing heart condition suffered a heart attack after unloading bags of cement as part of his normal duties. The commission found that the worker's heart attack was caused by his work effort, and the supreme court affirmed. In Pitsch v. DILHR, 47 Wis. 2d 55 (1970), a worker sustained a heart attack after loading and unloading a few 40-pound concrete blocks onto a truck. There, however, the commission denied compensation. The commission accepted the opinion of the employer's expert the heart attack was not related to work because the worker was only performing his normal duties, and had not reached his "threshold of reserve" beyond which damage to the heart occurs. Id., at 47 Wis. 2d 59-60. In Theodore Fleisner, Inc., supra, 65 Wis. 2d at 321-324 (1974), an overweight worker who did not usually perform heavy labor suffered a myocardial infarction while digging ditches, and the court affirmed the commission's finding that the heart attack was work related. In Manitowoc County v. ILHR Dept., 88 Wis. 2d 430, 437 (1979), the commission found a police officer's heart attack during a high speed chase to be compensable, even though the police officer had pre-existing arteriosclerosis.
4. Discussion.
The commission believes the first question is what caused the decedent's death. Dr. Zwicke's report is most clear on this point: The decedent went into a ventricular arrhythmia due in large part to the weakened condition of his heart from his prior heart attacks. However, he did not have an actual heart attack on the day of his death. This is supported by the microscopic examination of his coronary arteries on autopsy, which showed the lack of an acute thrombosis (a clot-causing blockage.)
The commission reads the reports of decedent's medical expert Neustel and final autopsy report of pathologist Iknayan to agree with Dr. Zwicke that it was a ventricular arrhythmia, and not an actual heart attack on the day of death, that caused the decedent's death. While Dr. Iknayan initially diagnosed an acute myocardial infarction (heart attack) in the December 1996 death certificate, that diagnosis was not borne out by the microscopic examination of the coronary arteries dictated for transcription in May 1997. Indeed, Dr. Iknayan did not reiterate his heart attack diagnosis in the final autopsy report signed in May 1997 or in his follow up letter to the decedent's attorney signed in November 1997.
Beyond that, Dr. Neustel's report refers to "a sudden cardiac event" related to a ventricular fibrillation caused by lowered catecholamine levels. Ventricular fibrillation, of course, is a specific kind of arrhythmia. (5) Dr. Neustel did not diagnose a heart attack occurring on the day of death.
Nor do Dr. Neustel or Dr. Iknayan dispute that the damage to the decedent's heart from the three prior heart attacks predisposed him to the arrhythmia or fibrillation that led to his sudden death. No one opines that an additional heart attack on the day of the decedent's death was needed to cause the arrhythmia or fibrillation.
Where the experts part company is the contributory role that the physical and emotional stress from responding to the fire call played in causing the decendent's fatal arrhythmia. The doctor doing the autopsy (Iknayan) and the decedent's hired examiner (Neustel) say the work activity contributed to development of the arrhythmia, and Dr. Neustel flatly opines the work activity caused the decedent's death. The respondent's examiner (Zwicke) disagrees.
The next question is, then, whether, applying the legal rules set out above, the decedent's work activity on the day of his death is causally-related to the decedent's death, given his "as is" condition including the prior heart attacks. In answering this question, the commission cannot impose a requirement of unusual exertion or stress at the time as a legal prerequisite to recovery. Rather, the commission must decide whether the level of exertion or stress from employment on the day of the decedent's death was medically sufficient to cause the decedent's death by ventricular fibrillation or arrhythmia given his underlying disease. The commission believes that the decedent has made that showing in this case.
The commission is persuaded that, at the time of his death on December 29, 1996, the applicant was engaged in activity (driving and turning the 1997 pumper truck from the firehouse) that required considerable physical effort. The applicant was also excited and under considerable emotional stress while responding to the fire call. The commission credits the opinions of Drs. Neustel and Iknayan that the physical and emotional stresses from responding to the call caused the applicant's death by causing his heart, weakened from underlying cardiovascular disease or cardiomyopathy, to go into a fatal ventricular fibrillation.
In reaching this conclusion, the commission credits the reports of Drs. Neustel and Iknayan. Both doctors describe the role of the stresses as "contributory," in the sense that it was not the stresses alone, but rather the effect of the stresses on the applicant's diseased heart, that led to his death. The commission notes that Dr. Iknayan, the pathologist who did the autopsy and who was not an expert chosen in advance by either party, corroborates Dr. Neustel's opinion that emotional and physical stress from responding to the fire call caused the decedent's death. Further, of course, the decedent's death occurred when it did, while driving a fire truck without power steering to a fire.
Moreover, even IME Zwicke seems to acknowledge that emotional and physical stress could play a causal role in development of the arrhythmia, though she opines the physical and emotional stress here was not significant. Dr. Zwicke did not opine that physical or emotional stress cannot cause a diseased heart to go into ventricular arrhythmia.
The commission cannot credit, however, Dr. Zwicke's opinion that the events of December 29, 1996 did not cause the applicant's death. Her underlying assumption is that driving the 1977 pumper truck without power steering "required no unusual physical activity." Exhibit 2, April 18, 1998 report of Zwicke page 2. In later reports Dr. Zwicke reiterated that "steering a similar fire truck . . . did not require any significantly abnormal amount of physical strength" exhibit 3, December 15, 1998 report of Zwicke page 3; and "the presumption driving this fire truck required significant physical exertion is false," exhibit 5, August 22, 1999 report of Zwicke, page 1. However, the facts do not sustain Dr. Zwicke's belief in this regard.
In her first report, Dr. Zwicke states "[r]eports by coworkers, by investigators, and by my visit to a fire department clearly demonstrate that no significant physical activity was required in driving the `pumper truck.'" However, at the hearing Messrs. Askola, Tomlanovich and Baker testified that the 1977 pumper truck had no power steering, and that it was difficult to steer, particularly when it was moving at slow speed out of firehouse yard. Askola and Tomlanovich frankly acknowledged difficulty handling the vehicle. None of three say driving the truck did not involve significant physical activity.
During the commission's conference with the presiding ALJ, he specifically informed the
commission he found the testimony of these witnesses on this point to be credible. The ALJ
also noted that while he did not actually drive the 1977 pumper truck which was present at
the hearing, he did sit next to another person who drove the truck. In so doing, the ALJ
noted that that individual appeared to have some difficulty in steering the vehicle.
On the other hand, whoever told Dr. Zwicke that driving the 1977 pumper truck which the
decedent was operating at the time of his death did not require significant physical
activity did not testify. Nor does the record contain the investigatory reports which Dr.
Zwicke says state that no significant physical activity was involved.
Further, the commission is left with some doubt about Dr. Zwicke's own impression about the difficulty involved in driving the 1977 pumper truck from her visit to the Milwaukee fire department. In her first report, Dr. Zwicke says she merely visited the Milwaukee fire department. In the second report, she reports she steered a similar fire truck. By the third report, she reported she had "participated in steering a truck identical to the one" the decedent was driving at the time of his death. [Emphasis added.] However, her reports never once describe the vehicle with more detail than referring to a "pumper truck." The commission has considerable difficulty believing that Dr. Zwicke actually participated in steering the same model 1977 pumper truck with no power steering in Milwaukee that the decedent drove in Kimball.
Even if Dr. Zwicke had consistently reported driving a 1977 pumper truck made by the same manufacturer, the statement that it involved no significant physical strength to steer strains credibility. The truck had no power steering. The ALJ's first-hand observation at the hearing indicated the truck was hard to steer. All three men who actually drove the truck disputed her position at the hearing and testified, in one form or another, that the truck was hard to drive or steer.
The commission might have taken a different view if Dr. Zwicke had opined that steering the truck required significant physical exertion, but not sufficient exertion or (as the dissent suggests) duration to cause ventricular arrhythmia in a diseased heart. But that is not what she said. She reported, repeatedly, that driving the truck required no significant physical activity.
The commission must also wonder about Dr. Zwicke's dismissal of any emotional stress from the fire call itself. In her second report, she states that the decedent had incorporated responding to fire emergencies into his usual affairs. Exhibit 2, December 15, 1998 report of Zwicke, page 1. However, the record indicates the decedent had not responded to a fire call for several months before the call on the day of his death. The commission must also conclude that the relative emotional stress from responding to a fire call in an emergency vehicle, even if loss of life is not imminent, would be greater than the other emotionally-stressful activities noted by Dr. Zwicke: supervising a softball league or operating a business in a small town. Certainly, responding to a fire call would seem more likely to cause the rapid increase in catecholamine levels tbat Dr. Zwicke herself states could lower a person's ventricular fibrillation threshold. Indeed, the only first-hand testimony in the record, which the ALJ also regarded as credible, was the observation of the decedent's widow and Mr. Askola that the decedent in fact appeared highly excited shortly before his death.
The commission also considered Dr. Zwicke's comments that there was no relationship, whatsoever, between the decedent's prior heart disease and his activities as a volunteer fireman. Based on this observation, Dr. Zwicke concluded that the work at the fire department did not accelerate his artery disease and did not precipitate it (as atherosclerosis is present by the natural aging of the arteries.) Respondent exhibit 2, April 18, 1998 report of Zwicke, page 3, and exhibit 5, August 22, 1999, page 2.
There is no quarrelling with Dr. Zwicke's observation that there is no relationship between the decedent's pre-existing disease and his duties as a firefighter. It was exactly that conclusion which the supreme court accepted in the Tews case. Nonetheless, the court went on in Tews, and in Theodore Fleisner, Inc., and City of Manitowoc, to compensate death or disability from heart attacks even though the work event may not have brought about (or precipitated) the underlying pre-existing condition itself. Indeed, the Tews holding still applies even where, given a worker's underlying pathology, work itself has little effect on the basic pathology and an acute event might have occurred at any time, provided work exertion triggers the acute event. Theodore Fleisner, Inc., at 65 Wis. 2d 323. The commission is satisfied that where, as here, work stress causes sudden death by sending a heart weakened by pre-existing cardiovascular disease into ventricular fibrillation or a fatal arrhythmia, the third criterion in the legal causation test set out in Lewellyn is satisfied, and in any event adopts as more credible Dr. Neustel's opinion to that effect.
Finally, the commission notes Dr. Zwicke's comment that the decedent's catecholamine levels would have been higher with a variety of everyday activities such as climbing a flight of stairs, sexual intercourse, and being in a near miss accident, and that the decedent's activity on the day of his death was no different than that which he performed in any given day. Again, this conclusion is suspect, as it is based on the assumptions that driving the 1977 pumper truck without power steering did not involve significant physical stress, and that responding to the fire call in an emergency vehicle did not involve emotional stress. Even so, the commission is constrained to note that while these everyday, albeit relatively stressful, activities might have raised the decedent's catecholamine levels without triggering death, it does not follow that the rise in catecholamine levels associated with responding to the fire call did not cause his death. This seems especially true, as Dr. Zwicke acknowledges that high levels of catecholamines or rapid increases in the catecholamine levels will lower the ventricular fibrillation threshold. Exhibit 5, August 22, 1999 report of Zwicke, page 1.
In sum, the assumed facts upon which Dr. Zwicke relied to reach her conclusion, that driving the 1977 pumper truck without power steering did not involve significant physical stress or activity and that the decedent experienced no real emotional stress in responding to a fire call while driving an emergency vehicle, are not supported by the record. These are not merely incidental or immaterial facts, as the other doctors find causation expressly on the bases of emotional and physical stress. The commission cannot rely on Dr. Zwicke's report as it stands. Instead, as stated above, it adopts the more credible opinions of Drs. Neustel and Iknayan. (6)
The commission therefore concludes that the decedent's death proximately resulted from
an injury arising out of his employment with the employer and while performing services
growing out of that employment. Wis. Stat. § § 102.03 (1)(a), (c), and (e) and 102.46 et
seq. The commission remands this case for further appropriate action, including hearing
and decision, if necessary, to calculate the amount of the benefits payable as a result of
the decedent's death. Because the payments under Wis. Stat. § 102.49 may be involved, the
Work Injury Supplemental Benefit Fund is added to the caption. (7)
Although the ALJ noted that medical expenses were at issue, the commission could not
locate a statement of medical treatment expenses on form WKC-3 among the exhibits in the
record. Accordingly, while the medical expenses related to the attempts to resuscitate the
decedent would normally be payable, the commission lacks sufficient information to award
the expenses in this case. The commission therefore remands the issue of medical expense,
too, to the department for hearing and decision if necessary.
Because the issues of the primary compensation and medical expenses remain outstanding, this order is left interlocutory.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
INTERLOCUTORY ORDER
The findings and order of the administrative law judge are reversed. This case is remanded to the department for further action consistent with this decision
Dated and mailed February 28, 2001
emmricr.wrr : 101 : 1 ND § 3.37
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The commission conferred with the presiding ALJ concerning witness credibility and demeanor. He stated he found the decedent's widow and Mr. Askola credible with respect to his description of the decedent's excited appearance at the firehouse on the date of his death. He also stated he found the witnesses credible with respect to the amount of effort required to drive the 1977 pumper truck. He specifically rejected the idea that the witnesses departed from a faithful account of the facts to help the decedent, a friend and fellow volunteer. He added that, while he did not drive the 1977 pumper truck, he sat in the truck while someone else drove it and observed that that person had difficulty with the steering.
The commission accepts these credibility impressions, and incorporated them into its decision. Accordingly, the commission does not reverse based on the credibility or demeanor of any witnesses who testified at the hearing, but rather on a different view of the credibility of the opinions of the medical experts, none of whom testified at the hearing.
In his decision, the ALJ explained he relied on Dr. Zwicke's report regarding causation because there was no evidence of a heart attack on the date of the decedent's death. The ALJ went on to describe as confusing Dr. Iknayan's unexplained observation during the autopsy of the presence of changes of myocardial infarction, followed by the doctor's statement that such changes are frequently not identifiable unless a survival period of a minimum of six to twelve hours has occurred.
However, after reading the medical reports, particularly that of Dr. Zwicke, the commission is satisfied that Dr. Iknayan's observations are entirely consistent. Dr. Iknayan saw evidence of a heart attack, actually three heart attacks, on autopsy. However, he suggested that those changes likely were not from a myocardial infarction occurring with response to the fire call on December 29, 1996, as the decedent died "too soon" after the fire call for any changes from a myocardial infarction triggered by that event to become evident.
In light of the microscopic examination of the coronary artery and the opinions of Drs. Zwicke and Neustel, this makes perfect sense: the decedent had no heart attack on the day of his death, and the changes Dr. Iknayan observed were from prior heart attacks, the silent myocardial infarctions. On this point, the commission notes that neither Drs. Zwicke nor Dr. Neustel found this part of the autopsy report to be confusing or inconsistent.
PAMELA I. ANDERSON, COMMISSIONER (dissenting):
I am unable to agree with the result reached by the majority herein and I dissent. I found Dr. Zwicke to be more convincing. In order for the decedent to have a Lewellyn 3 case, he must show that his work activity precipates, aggravates and accelerates a progressively degenerative condition beyond its normal progression. Dr. Zwicke noted that "if one wished to believe that Mr. Emmrick's usual physical activity of responding to a fire call and driving a fire truck to be the cause of his sudden cardiac death, then only aggravation of the underlying disease would apply." What she is saying is that responding to the fire call and driving the fire truck would not precipate or accelerate his underlying condition beyond its normal progression. In other words the decedent had deteriorated severely enough from his three silent heart attacks. Dr. Zwicke reported that the decedent's catecholamines would be higher with any of a variety of everyday activities such as climbing a flight of stairs, sexual intercourse, participation in physical sports activities or being in a near miss car accident than in the non-emergency fire call.
Dr. Zwicke stated "The presence of the scar tissue (from the prior myocardial infarctions) placed Mr. Emmrich at a significantly higher risk for developing unexpected ventricular tachycardia. This does not necessarily need to be activity or catecholamine associated. This may happen at any point in time. If sustained ventricular tachycardia continues it eventually deteriorates into ventricular fibrillation. Again, this does not have to be associated with any particular physical or emotional events. Neither Dr. Iknayan nor Dr. Neustel indicate in their narrative that the fire call or driving the truck either precipated nor accelerated the decedent's underlying condition beyond its normal progression. Neither Dr. Iknayan nor Dr. Neustel explain how high catecholamine levels would need to be or how long they would need to be at that level to trigger ventricular tachycardia. Dr Iknayan's original opinion was that it was likely a myocardial infarction until he had done a microscopic examination. Dr. Zwicke made the proper diagnosis on the first try.
The majority place great emphasize on how hard it is to drive a pumper truck without power steering. I place a lot of emphasize on the short time period that the decedent drove the truck and the fact that he had only two right turns to make. He went into the ditch on the second turn and was dead by the time his co-worker got there. I can not help wondering if his flushed face prior to leaving the station may not have been a sign of arrhythmia problems before he even drove the truck. I would be more convinced about the emotional stress if the applicant had already been at the fire rather than just anticipating what it was going to be like.
For these reasons, I would agree with the administrative law judge and affirm his
decision to dismiss the claim.
____________________________________
Pamela I. Anderson, Commissioner
cc:
Jeri Emmrich
Attorney Boad S. Swanson
Attorney James A. Pelish
Stephen M. Sobota
Abby Butler
[Note: After the issuance of the commission's decision the parties informed the commission that they had stipulated to specific amounts of death benefits, medical expenses and attorneys fees, and on that basis the commission's decision was amended, by Order dated March 22, 2001, to incorporate findings and an order as to those amounts and to delete the order for remand.]
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Footnotes:
(1)( Back ) Thrombosis is the development, formation, or presence of a thrombus. A thrombus is a stationary blood clot on the wall of an artery, frequently causing vascular obstruction. Dorland's Illustrated Medical Dictionary (29th ed. 2000).
(2)( Back ) At least it is reasonable to so infer: the doctor signed the death certificate on January 2, 1997, dictated the gross part of the autopsy on December 31, 1996, dictated the microscopic part of the autopsy (indicating no thrombosis) on May 27, 1997, and signed the summary part of the autopsy on May 28, 1997.
(3)( Back ) Ischemic cardiomyopathy is a disease of the heart muscle due obstruction of the blood flow in the arteries supplying the heart muscle.
(4)( Back ) This holding is consistent with the majority rule in "heart cases" discussed at 2 Larson's Workers' Compensation Law § 43.03[1] (MB 2000). In setting out the rule, the court in Tews used the generalized term "heart failure," even though that case involved a myocardial infarction. Professor Larson's treatise indicates that the court decisions apply the same rule in cases involving fibrillation as in cases involving myocardial infarction and other cardiac conditions. Id. Thus, the commission concludes that the discussion in Tews is applicable here, even though the issue is whether the events of December 29, 1996 caused ventricular fibrillation as opposed to a myocardial infarction or heart attack. Dorlands Illustrated Medical Diction, (29th ed., 2000)
(5)( Back ) The dissenting commissioner noted Dr. Zwicke's statement that the presence of scar tissue placed the decedent at a greater risk of developing ventricular tachycardia, and that the development of ventricular tachycardia did not need to be activity or catecholamine related. Of course, Dr. Zwicke did not dispute that physical and emotional stress affects catecholamine levels, and acknowledged that high levels of catecholamines or a rapid increases in those levels will lower the ventricular fibrillation threshold. Thus, the possibility that the decedent could have gone into fibrillation without a catecholamine increasing event does not rule out fibrillation from a catecholamine-increasing event such as driving a fire truck without power steering in response to a fire call. The dissent also criticizes Drs. Iknayan and Neustel for not explaining how high the catecholamine levels would need to be, nor how long they would need to be high, to trigger tachycardia. Of course, the respondent's medical expert, Dr. Zwicke, did not voice this criticism; nor did she indicate that it was necessary to quantify catecholamine levels in absolute terms, let alone estimate what absolute level would have triggered ventricular tachycardia or arrhythmia in the decedent. The dissent also notes that neither Dr Iknayan nor Dr. Neustel recited the legal test from Lewellyn in their narrative reports. Of course, Dr. Neustel did indicate on his WC-16B form practitioner's report that the third causal test from Lewellyn applies in this case. See Exhibit B. The commission is unwilling to draw an adverse inference from a medical doctor's failure to repetitively recite what is essentially a legal test in giving his expert medical opinion. The dissent also criticizes Dr. Iknayan for diagnosing myocardial infarction three days after the decedent's death, and notes that the doctor changed his diagnosis after doing a microscopic examination. The dissent then observes that "Dr. Zwicke made the proper diagnosis on the first try," suggesting that her opinion on causation therefore was more credible. Of course, Dr. Zwicke first offered her diagnosis with the benefit of Dr. Iknayan's microscopic autopsy report, and then concurred in his finding that there was no evidence of a myocardial infarction on the day of death. Finally, the dissent suggests the commission placed too much emphasis "on how hard it is to drive a pumper truck without power steering," and suggested that the relatively short time period the decedent actually drove the truck should instead be emphasized. While the commission does emphasize the difficulty the decedent had steering the truck, it is because that is the focal point of all the medical reports, including Dr. Zwicke's. No medical expert, not even Dr. Zwicke, mentions the length of time the decedent actually drove the truck.
(6)( Back ) A copy of the notice of hearing was sent to the state attorney general.
uploaded 2001/03/13