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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