Download before the iowa industrial commissioner

BEFORE THE IOWA WORKERS' COMPENSATION COMMISSIONER
______________________________________________________________________
________
:
MARJORIE J. GOOD as Surviving Spouse
of LOU G. GOOD, Deceased,
:
:
:
Claimant,
:
:
vs.
:
:
File No. 1192913
PEPSI-COLA BOTTLERS, INC.,
:
: ARBITRATION DECISION
Employer,
:
:
and
:
:
OLD REPUBLIC INSURANCE COMPANY, :
:
Insurance Carrier,
:
Defendants.
:
______________________________________________________________________
________
STATEMENT OF THE CASE
This is a contested case proceeding under Iowa Code Chapters 85 and 17A.
Claimant, Marjorie Good, is the widow of decedent, Lou Good, whose probable cause of
death was atherosclerothic cardiovascular disease on September 25, 1997. In her
petition for death benefits, claimant alleges the death arose out of and in the course of
employment by Pepsi-Cola Bottlers, Inc., defendant employer, insured by Old Republic
Insurance Company, defendant insurance carrier. Defendants admit a back injury
resulting in temporary disability on September 15, 1997, but dispute liability for death
benefits. The case was heard before deputy workers' compensation commissioner,
Dévon M. Lewis on October 4, 2000, in Des Moines, Iowa. The evidence in this case
consists of claimant's exhibits A-C, joint exhibits 1-12, and the testimony of Marjorie
Good and Kevin Dougherty. The case was considered fully submitted at the close of
hearing.
ISSUES
The parties presented the following issues for resolution:
1.
Whether claimant gave notice of the injury under Iowa Code section
85.23.
2.
Whether Lou Good’s death arose out of and in the course of his
employment.
GOOD V. PEPSI-COLA BOTTLERS, INC.
Page 2
FINDINGS OF FACT
The undersigned, having heard and considered all the evidence received at the
hearing, makes the following findings of fact:
Lou Good, decedent, was 52 years of age at the time of his death on September
25, 1997. He had worked for approximately 19 years with defendant employer as a
route salesman. He had a history of a ruptured disc in 1986 with no resulting surgery.
(Joint Exhibit 2) He also had a history of high blood pressure, high cholesterol, and
being overweight. (Jt. (Ex. 1, pp. 1-9) Decedent was encouraged to lose weight, make
dietary changes, and engage in daily aerobic activity to address the cholesterol and
blood pressure issues. (Jt. Ex. 1, p. 10) In late August 1997, decedent took his blood
pressure at home over the course of a week but the physician’s notes had recorded that
his home unit runs consistently below that recorded in the doctor’s office. (Jt. Ex. 1, pp.
1, 19) On February 15, 1996, decedent acknowledged during a doctor visit that he was
not adhering to a strict diet and had not conducted any regular aerobic exercise. (Jt.
Ex. 1, p. 15) Decedent was advised on August 27, 1997, that his cholesterol was not
under good control at 247. (Jt. Ex. 1, p. 21)
On Monday, September 15, 1997, decedent hurt his back while at work when he
tried to open a bay door. He reported the injury and declined a referral to the company
doctor, instead opting to see his personal chiropractor, Ron K. Dunham, D.C. (Jt. Ex. 3,
p. 9) On September 18, decedent again saw Dr. Dunham, who noted that the neck pain
was better but still had pain in his left shoulder blade. On September 19, decedent
declined a referral to an M.D. for an EKG. (Jt. Ex. 3, p. 10) Between September 15 and
19, 1997, decedent was working full shifts with a “swing man” who performed the
heavy-duty aspects of the job.
Decedent’s pain continued to increase and he tried a variety of measures at
home to assist him in sleeping. After spending the weekend at home on September 20
and 21, decedent reported to work on Monday, September 22, 1997, one week after the
back injury. By 9:00 a.m., Kevin Dougherty, district manager with defendant employer,
drove decedent to company physician Ross Huffman, D.O., who noted decedent could
bend down and touch his toes without any problems, had no sensory deficits in the
upper extremities, and noted that arm strength was completely normal. Dr. Huffman
prescribed Flexeril, advised decedent not to drive while taking the medication, and
ordered physical therapy. (Jt. Ex. 4, p. 1) Decedent attended physical therapy on
September 22, but did not attend on Tuesday, September 23, due to an increase in
pain. Decedent went to the emergency room and was given Demerol, Phenergan, and
Tylenol III. On September 24, the nurse’s notes from Dr. Huffman’s office indicate
decedent began vomiting, which was attributed to the Tylenol III. (Jt. Ex. 4, p. 3) On
September 23, 1997, the emergency outpatient record at 11:30 p.m. noted a sharp
constant pain that radiates around to the anterior chest. A blood pressure reading at
11:40 p.m. was noted to be 170/112 with a pulse of 102. (Jt. Ex. 6, pp. 2-3) The
emergency room physician noted a history of high cholesterol and high blood pressure
GOOD V. PEPSI-COLA BOTTLERS, INC.
Page 3
and discharged the decedent in stable condition with a work release for the week. (Jt.
Ex. 6, pp. 3-4) Decedent was admitted to the emergency room again on September 25,
1997, at 8:32 a.m. (Jt. Ex. 6, pp. 5-13) The emergency department physician’s history
notes reflect that decedent’s pain changed from the scapular pain that he had been
experiencing for over a week to radiation around the chest and into the anterior left
chest region with development of shortness of breath overnight. Gary T. Hemann, D.O.,
also noted a history of high cholesterol and high blood pressure in the emergency room
on September 23. The history also reflected intermittent problems with the upper back
and discomfort associated with work. (Jt. Ex. 6, pp. 14, 19) The diagnostic x-rays from
the emergency room indicated congestive heart failure and an enlarged cardiac
silhouette. No prior EKG results were available. The September 25, 1997 EKG
indicated a recent inferior wall myocardial infarction event and right ventricular
myocardial infarction event. (Jt. Ex. 6, p. 16) Shortly after 10:30 a.m., decedent went
into respiratory arrest and was transferred to the care of the air ambulance crew. (Jt.
Ex. 6, p. 18) The air ambulance crew performed cardiopulmonary resuscitation and
decedent was pronounced deceased at 11:30 a.m. at Mercy Hospital Medical Center.
(Jt. Ex. 7) The medical examiner’s report indicated the probable cause of death as
atherosclerotic cardiovascular disease. (Jt. Ex. 8)
Paul From, M.D., reviewed decedent's records, noting the history of increased
cholesterol, high blood pressure, elevated weight and a past history of heavy alcohol
use. Dr. From also noted the history of back pain. According to the creatine kinase
(CK) levels, Dr. From was of the opinion that the heart attack had occurred some time
during the 18 hours prior to the blood having been drawn at the emergency room
around 8:50 a.m. (Jt. Ex. 9, pp. 1-3; Jt. Ex. 6, p. 12) Dr. From believed, given
decedent's history and the change in pain type approximately ten days after the back
injury, that decedent had a naturally occurring coronary artery disease from the high
cholesterol and possibly other risk factors. He did not believe the heart attack was
caused by the back injury and found no connection between the work and the
development of the myocardial infarction. (Jt. Ex. 9, pp. 3-4) After receiving
subsequent information, Dr. From also believed that the work performed by decedent
after his back injury did not contribute to the heart attack. (Jt. Ex. 9, pp. 5-6)
Defendants enlisted the opinion of Liberato A. Iannone, M.D., regarding
decedent's death, who noted the cardiac risk factors of decedent were significant and
that decedent had deferred an additional lipid-lowering drug in 1996 until shortly before
his death. Dr. Iannone also noted a history of obesity with a recommendation to lose
weight and a history of hypertension and noted those issues as “the major causal
factors in the development of coronary artery disease and myocardial infarction.” Dr.
Iannone was not aware of an injury sustained in the ten days prior to the heart attack,
but did note that pain is not thought to cause either coronary disease or myocardial
infarction, noting that decedent had not worked for three days prior to the event. He
found no relationship in the injury of September 15, and the subsequent heart attack
and death, but attributed decedent’s death to the outlined risk factors. (Jt. Ex. 11, pp. 12)
GOOD V. PEPSI-COLA BOTTLERS, INC.
Page 4
Claimant solicited a medical opinion from Joel K. Kahn, M.D., of West Bloomfield,
Michigan, who reviewed decedent's records and history. Dr. Kahn opined that decedent
died of atherosclerotic heart disease and complications of an acute myocardial
infarction and cardiogenic shock. Dr. Kahn attributed the onset of the acute coronary
syndrome and death to the work injury of September 15, 1997, noting that the only risk
factor for premature coronary disease was high cholesterol, which was being treated.
He did not refer to the decedent’s history of excess weight or the high blood pressure.
Dr. Kahn did note that factors leading to a myocardial infarction include unstable plaque
as an area of active research, including inflammation, blood pressure elevation, and
infection. He also attributed mental stress from a variety of factors including severe
pain and suffering as a trigger of myocardial infarction. (Jt. Ex. 10, pp. 1-2; Cl. Ex. A,
pp. 15, 18-19, 30, 33-34) Dr. Kahn opined that the heart attack occurred approximately
within an approximate 24-hour window of the emergency room visit in the morning of
September 25, 1997. (Cl. Ex. A, pp. 23-24) Dr. Kahn agreed that there is a risk for the
build up of plaque with a history of high cholesterol. (Cl. Ex. A, pp. 25-27) Dr. Kahn
was not able to offer an opinion with respect to any percentage by which decedent’s
heart was blocked by plaque. (Cl. Ex. A, p. 28)
The employer completed the first report of injury listing September 15, 1997, as
the date of injury and September 25, 1997, as the date of death.
REASONING AND CONCLUSIONS OF LAW
The first issue for determination is whether claimant gave timely notice of the
claim.
Failure to give notice is an affirmative defense that the employer must prove by a
preponderance of the evidence. DeLong v. Highway Comm'n., 229 Iowa 700, 295 N.W.
91 (1940).
Iowa Code section 85.23 requires an employee to give notice of the occurrence
of an injury to the employer within 90 days from the date of the occurrence, unless the
employer has actual knowledge of the occurrence of the injury.
The purpose of the 90-day notice or actual knowledge requirement is to give the
employer an opportunity to timely investigate the facts surrounding the injury. The
actual knowledge alternative to notice is met when the employer, as a reasonably
conscientious manager, is alerted to the possibility of a potential compensation claim
through information which makes the employer aware that the injury occurred and that it
may be work related. Dillinger v. City of Sioux City, 368 N.W.2d 176 (Iowa 1985);
Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 1980). The time period for giving
notice does not begin to run until the claimant as a reasonable person, should recognize
the nature, seriousness and probable compensable character of the injury. The
reasonableness of claimant's conduct is to be judged in light of claimant's education and
intelligence. Claimant must know enough about the condition or incident to realize that
it is both serious and work connected. Positive medical information is unnecessary if
GOOD V. PEPSI-COLA BOTTLERS, INC.
Page 5
information from any source gives notice of the condition's probable compensability.
Robinson, 296 N.W.2d at 812.
Inasmuch as the date of injury and the date of death were sufficiently close in
proximity that the defendant employer listed both on the first report of injury and there
was an overlap in treatment or medical records of claimant regarding the back injury
and the myocardial infarction records, the employer did have sufficient notice of at least
the proximity of the events so as to question the possibility of a potential compensation
claim. Accordingly, claimant had given appropriate notice to defendant employer
pursuant to Iowa Code section 85.23.
The second issue for determination is whether Lou Good’s death arose out of
and in the course of his employment.
The party who would suffer loss if an issue were not established has the burden
of proving that issue by a preponderance of the evidence. Iowa R. App. P. 14(f).
Determination of whether a heart attack superimposed upon a preexisting
circulatory or heart condition arises out of employment hinges on a two-part test: legal
and medical. The legal test defines what kind of exertion satisfies the requirement,
although the exertion may be physical or emotional. Duffield v. Iowa State Penitentiary,
file no. 771083 (App. Dec. 1988). Under the medical test, it must be shown that the
exertion in fact caused the heart attack.
Two standards under the legal test were set forth in Sondag v. Ferris Hardware,
220 N.W.2d 903 (Iowa 1974), citing 1A Larson’s Workmen’s Compensation Law,
section 38.83:
In the first situation the work ordinarily requires heavy exertions which,
superimposed on an already-defective heart, aggravates or accelerates
the condition, resulting in compensable injury.
...
While the evidence is clear that the exertion of opening the door on September
15 led to back pain and the stipulated injury on September 15, 1997, there is no
evidence of any work-related exertion during the 24-hour window prior to the emergency
room visit on the date of death that was work related or contributed to the heart attack.
Even assuming Dr. From’s 24-hour timeframe rather than Dr. From’s 18-hour window,
the heart attack had occurred sometime after 8:50 a.m. on September 24, 1997, and the
change of pain reported by decedent and claimant to have begun on September 24, is
consistent with that 18 to 24 hour window. Dr. Kahn did not base his opinion on the
decedent's history of excess weight and high blood pressure even though he noted high
blood pressure as a possible factor in loosening plaque that can lead to a myocardial
infarction. His opinion was based solely on decedent's injury and history of high
cholesterol. Accordingly, Dr. From’s opinion, which addressed the entire risk factor
history, is accepted. Thus, claimant has failed to establish the decedent’s coronary
GOOD V. PEPSI-COLA BOTTLERS, INC.
Page 6
event occurred while he was in the course of his employment or that it arose out of his
work. Therefore, defendants prevail.
ORDER
THEREFORE, IT IS ORDERED:
That claimant takes nothing.
Costs are taxed to claimant.
Signed and filed this ___________ day of January, 2001.
__________________________________
DÉVON M. LEWIS
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
Copies to:
Mr Theodore R Hoglan
Attorney at Law
34 South 1st Avenue
Marshalltown IA 50158
Mr Joseph A Quinn
Attorney at Law
700 Walnut STE 1600
Des Moines IA 50309