Dietz v. WCAB (Lower Bucks County Joint Municipal Authority) ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Dietz (deceased) by :
Judith Dietz, :
Petitioner :
:
v. : No. 2051 C.D. 2014
: Submitted: May 1, 2015
Workers’ Compensation Appeal :
Board (Lower Bucks County Joint :
Municipal Authority), :
Respondent :
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: August 14, 2015
Judith Dietz (Claimant) petitions for review of an adjudication of the
Workers’ Compensation Appeal Board (Board) denying her petition for fatal claim
benefits for the death of her husband, Robert Dietz (Decedent), which occurred
while he was on the job. The Workers’ Compensation Judge (WCJ) had granted,
on remand, the fatal claim petition, finding a causal connection between
Decedent’s long day of work and his fatal heart attack. The Board reversed
because it concluded that the evidence did not establish the requisite causal
connection. Concluding that the Board erred, we now reverse.
Decedent was employed by the Lower Bucks County Joint Municipal
Authority (Employer) as a field maintenance worker for 20 years. His job
involved heavy labor. On November 7, 2007, at the age of 48, Decedent suffered a
fatal heart attack while on the job.
Claimant filed a fatal claim petition alleging that Decedent’s work
caused his heart attack and death. Claimant sought fatal claim benefits for herself
and her minor child.1 Employer filed an answer denying liability. The petition
was assigned to a WCJ, who held a hearing at which Claimant and Employer
presented evidence.
Claimant testified that Decedent’s field maintenance job was a
physical job that included jackhammering to dig up the road, repairing water main
breaks and cutting tree roots out of the sewer system. Claimant testified that
Decedent frequently worked more than 40 hours per week and was always on-call.
Decedent performed the same work duties during the 13 years he and Claimant
were married.
November 7, 2007, began as a normal day. Decedent left the house at
6:00 a.m., as usual, and began work at 7:00 a.m. At 9:35 p.m., Decedent called
Claimant to tell her that he and the other crew members were still working but that
the job would likely soon be finished. Claimant testified that Decedent told her on
the telephone that he had been doing roadwork and jackhammering for hours.
Decedent told Claimant that he and his co-workers were tired because they had
been “out there” at the job site for a long time. Notes of Testimony, December 8,
2009, at 13 (N.T. ___).2 Decedent made no other complaints and everything
1
In the event of a work-related death, a widow with one child is entitled to an award of 60
percent of the decedent’s wages and up to $3,000 for burial expenses. Section 307 of the
Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §561.
2
Because this Court granted Claimant’s application to proceed in forma pauperis, there is no
reproduced record.
2
seemed normal during the conversation. At 10:45 p.m., one of Decedent’s co-
workers came to the house and took Claimant to the hospital, where she learned
that Decedent had died of a heart attack after collapsing on the job.
Regarding Decedent’s health, Claimant testified that Decedent
smoked a pack of cigarettes a day during their marriage. In 2004 or 2005,
Decedent’s family doctor had ordered a stress test, but Decedent was not diagnosed
with heart disease. Decedent had been taking medication for high cholesterol for
approximately one year. Decedent was six feet, two inches tall and weighed 200 to
210 pounds.
Following Claimant’s testimony, Employer stipulated on the record
that Decedent’s heart attack occurred in the course of his employment. However,
Employer also specified it was not stipulating that the heart attack was caused by
his employment. The WCJ asked whether the matter was “becoming a medical
issue at this point” and Employer’s counsel responded that it was. N.T., March 11,
2010, at 6.
Claimant presented the deposition testimony of Larry A. Wolk, M.D.,
who is board certified in emergency medicine and thoracic surgery, which includes
cardiac surgery. To ascertain Decedent’s cause of death, Dr. Wolk reviewed
Decedent’s medical records, the death certificate3 and Claimant’s testimony. Dr.
Wolk gleaned from the emergency room records that Decedent collapsed at work
and was in full cardiac arrest when first responders arrived. Despite extensive
efforts both at the scene and at the hospital, Decedent could not be resuscitated.
There was no autopsy.
3
Claimant submitted the death certificate into evidence. The cause of death is listed as
“presumed natural causes.” Exhibit C-1.
3
The medical records showed that in 2002, Decedent was diagnosed
with mild narrowing of the arteries in his legs that did not require treatment. In
May 2002, Decedent went to the hospital complaining of chest pain. A stress
echocardiogram from June 18, 2002, did not reveal evidence of coronary artery
disease. Decedent returned to the hospital with chest pain in August 2002 and was
diagnosed with acute chest wall pain caused by a viral illness, not a cardiac
problem. Dr. Wolk did not have medical records from 2002 to 2007.4 Dr. Wolk
understood from Claimant’s testimony that Decedent did not have any other chest
pain complaints or treatment for cardiac issues during that time.
Dr. Wolk testified that Decedent’s death resulted from a fatal cardiac
dysrhythmia induced by a sudden heart attack. Dr. Wolk explained that a sudden
heart attack occurs when there is a sudden blood clot in an artery of the heart.
Conditions such as cold weather, stress and physical labor all cause a release of
adrenaline that tends to cause the blood to thicken. This, coupled with a small tear
in the lining of the heart artery caused by physical labor, leads to sudden clotting
and a heart attack.
Dr. Wolk noted that Claimant described Decedent’s general job
requirements as involving strenuous physical labor, including the operation of a
jackhammer. He also understood that Decedent had worked a very long day before
his heart attack occurred. Dr. Wolk opined that Decedent’s long hours of physical
labor caused his fatal heart attack. Dr. Wolk did not see anything else in the
medical records that would have caused the heart attack. Thus, but for his long
workday, Decedent would not have had a fatal heart attack on November 7, 2007.
4
Decedent’s family doctor failed to supply the medical records, stating that he had lost them in a
move.
4
In opposition to Claimant’s fatal claim petition, Employer submitted
the deposition testimony of Walter Schwartz, D.O., who is board certified in
internal medicine with a focus on cardiology. Dr. Schwartz reviewed Decedent’s
medical records as well as the testimony of Claimant and Dr. Wolk. The records
showed that as of 2000, Decedent had peripheral artery disease in his legs, which is
a hardening of the arteries that restricts blood flow. Decedent’s doctor advised him
to stop smoking at that time. Dr. Schwartz testified that it is very common for
someone with peripheral artery disease also to have coronary artery disease.
Decedent complained of chest pain in 2002 and underwent a cardiac stress test.
Dr. Schwartz viewed the test results as valueless because pain and cramping in
Decedent’s legs prevented him from completing the test.
Dr. Schwartz understood from the emergency room records that
Decedent had collapsed while working on a water main. Dr. Schwartz opined that
Decedent had coronary artery disease and died as a result of an acute narrowing of
a myocardial blood vessel or vessels resulting in ventricular fibrillation. Dr.
Schwartz suspected that ruptured cholesterol plaque caused a blockage of the left
main coronary artery which is also known as the “widow maker.” Dr. Schwartz
Dep. at 43.
Dr. Schwartz identified the following heart attack risk factors in
Decedent’s medical records: a family history of coronary artery disease (father);
Decedent’s peripheral artery disease; elevated cholesterol and blood fats; long
history of heavy smoking; and weight. Dr. Schwartz testified that these combined
risk factors gave Decedent a 19 percent chance of having a fatal heart attack, and
he did. Dr. Schwartz acknowledged that Decedent had a strenuous job. However,
Dr. Schwartz opined that Decedent’s death was not caused by his job duties
5
because he had been performing the same job for 20 years. There was nothing
unusual about Decedent doing heavy work for long hours and no evidence that he
was doing anything that day which would have caused additional stress on his
heart. Dr. Schwartz opined that the heart attack was bound to happen, explaining:
This could have happened at home. This could have happened
in his sleep or while he was driving. This was going to happen
sooner or later. It was just serendipitous that it happened while
he was working.
Dr. Schwartz Dep. at 23. However, when asked if Decedent would have had the
fatal coronary episode had he been home in bed instead of working at 9:30 p.m. on
November 7, 2007, Dr. Schwartz replied:
He could or could not have had it at that particular time. But he
was going to have a heart attack at some point in time.
Dr. Schwartz Dep. at 35.
The WCJ credited Claimant’s testimony except for her claim that
Decedent did not have any ongoing chronic condition, noting that Decedent was
being treated for high cholesterol.5 The WCJ credited Dr. Schwartz over Dr. Wolk
and found that Decedent’s heart attack was not causally related to his job. The
WCJ found the following to be significant: (1) Decedent had multiple non work-
related risk factors; (2) it was not unusual for Decedent to work extra hours; and
(3) there was no evidence of an increased demand on Decedent’s heart on the day
of his fatal heart attack. WCJ Decision, April 27, 2011, at 4; Finding of Fact No.
12b. Based on these findings, the WCJ concluded that Claimant failed to prove
5
The WCJ has complete authority over questions of credibility, conflicting medical evidence and
evidentiary weight. Sherrod v. Workmen’s Compensation Appeal Board (Thoroughgood, Inc.),
666 A.2d 383, 385 (Pa. Cmwlth. 1995).
6
that the heart attack was causally related to Decedent’s job and denied the fatal
claim petition.
Claimant appealed, and the Board vacated and remanded “for
reconsideration of the credibility determinations.” Board Adjudication, July 19,
2012, at 1. The Board held that the WCJ erred by requiring Claimant to produce
evidence that Decedent’s activity on the day of the heart attack was more strenuous
than usual. Under the correct standard, a claimant need only prove a connection
between the decedent’s employment and his death; showing a greater than normal
exertion is unnecessary. Workmen’s Compensation Appeal Board v. Bernard S.
Pincus Company, 388 A.2d 659 (Pa. 1978).
On remand, the WCJ reconsidered the evidence using this standard
and granted the fatal claim petition. The WCJ credited Dr. Wolk’s testimony and
found that Decedent’s long workday caused the fatal heart attack. The WCJ
acknowledged that details of Decedent’s activities on his last workday are scant
but found that additional details are unnecessary because Decedent’s regular job
duties required strenuous labor. The WCJ found that Decedent’s statement to
Claimant that he was tired because he had been on the job site for a long time
corroborated the fact that Decedent was physically stressed by the length of the
workday. The WCJ explained:
What this [WCJ] did not fully appreciate in the prior decision
was the role that the length of the workday played in
precipitating the heart attack. On further review, this [WCJ]
finds Dr. Wolk’s testimony on causation to be credible and
persuasive that working on a field maintenance crew for 14+
hours caused the cardiac event and death of [Decedent]. The
decedent was clearly predisposed to a heart attack, but it was
the long workday that stressed his body and triggered the event.
WCJ Decision, February 27, 2013, at 5; Finding of Fact No. 16.
7
Employer appealed, and the Board reversed. The Board determined
that the WCJ’s finding that Dr. Wolk believed the long workday caused the heart
attack was unsupported because Dr. Wolk actually opined that cold weather, stress,
physical labor and the long workday all combined to induce the heart attack. The
Board also determined that Dr. Wolk’s opinion of causation was unsupported
because neither he nor Claimant knew exactly what duties Decedent performed on
the day of the heart attack and there was no witness testimony from co-workers
specifying Decedent’s actual physical activities prior to the heart attack. Claimant
then petitioned for this Court’s review.6
On appeal, Claimant asserts that the Board erred in reversing the grant
of fatal claim benefits. Claimant argues that she did meet her burden of proving
causation because her evidence, which the WCJ credited, showed that Decedent’s
14-hour workday doing physical labor in field maintenance induced his fatal heart
attack. Employer responds that Claimant failed to establish causation because
there was no record evidence as to the weather conditions on the date in question
or what work Decedent performed that could support Dr. Wolk’s opinion that the
long day, cold weather, stress and physical labor precipitated Decedent’s heart
attack. We agree with Claimant.
Just as with any other type of injury, in order for a decedent’s fatal
heart attack to be compensable, the claimant must establish that the heart attack
was causally related to the decedent’s employment. Yantos v. Workmen’s
6
This Court’s standard of review of an order of the Board is to determine whether the necessary
findings of fact are supported by substantial evidence, whether Board procedures were violated,
whether constitutional rights were violated or an error of law was committed. Cytemp Specialty
Steel v. Workers’ Compensation Appeal Board (Crisman), 39 A.3d 1028, 1033 n.6 (Pa. Cmwlth.
2012).
8
Compensation Appeal Board (Vulcan Mold & Iron Company), 563 A.2d 232, 236
(Pa. Cmwlth. 1989). If the causal connection is not obvious, the connection must
be established by unequivocal medical testimony. Lamoreaux v. Workmen’s
Compensation Appeal Board (Celotex Corporation), 497 A.2d 1388, 1390 (Pa.
Cmwlth. 1985).
The WCJ granted the fatal claim petition, on remand, based on the
medical opinion of Dr. Wolk. In reversing the WCJ, the Board mischaracterized
Dr. Wolk’s testimony about cold weather and the role it played in Decedent’s heart
attack. When describing changes in the blood that set the stage for a heart attack,
Dr. Wolk explained generally that
[c]old weather, stress, and just physical labor all induce what
they call catecholamine release, which is adrenaline release
that tends to thicken the blood. And on top of a small - - what
they call intimal injury or a small tear in the lining of the heart
precipitates the sudden clotting of platelets and other factors in
the blood that causes the blood to clot and then it causes sudden
heart attack.
Dr. Wolk Dep. at 15-16 (emphasis added). Dr. Wolk listed three different factors
that can lead to thickened blood, but he did not state that cold weather was a
necessary component for Decedent’s heart attack. This is borne out by his
subsequent testimony specifically assigning the cause of Decedent’s heart attack to
his “long hours of working” over the course of “an extremely long day.” Dr. Wolk
Dep. at 20, 21. Dr. Wolk testified:
[Decedent’s] duties I’m sure included physical activity.
Certainly using a jackhammer…requires a large amount of
physical energy. The energy plus whatever other duties he had
plus the long day I’m sure increased the level of catecholamine
release in his body. And by doing that, as I said earlier,
induced a milieu where he had thrombogenic blood. And all
those things together combined to induce the heart attack.
9
Dr. Wolk Dep. at 22. Thus, Dr. Wolk’s testimony supports the WCJ’s finding that
“working on a field maintenance crew for 14+ hours caused the cardiac event and
death of [Decedent].” WCJ Decision, February 27, 2013, at 5; Finding of Fact No.
16.
Nevertheless, the Board denied the fatal claim petition because neither
Dr. Wolk nor Claimant knew exactly what duties Decedent was performing prior
to his heart attack. Claimant argues that her evidence was sufficient to establish
Decedent’s job duties and that the Board erred in holding that evidence of
Decedent’s specific duties on the day of his heart attack was required. We agree.
An expert witness is permitted to base an opinion upon facts of which
he has no personal knowledge, so long as those facts are supported by evidence in
the record. Yantos, 563 A.2d at 235. Our Supreme Court has explained that
“where a decedent was performing his or her usual job assignment at the time of
the fatal heart attack, and the connection between the work and the heart attack was
supported by competent medical testimony, decedent’s claimant was entitled to
compensation.” Bernard S. Pincus Co., 388 A.2d at 663 (emphasis added). Where
exertion leads to a fatal heart attack, there is no need to pinpoint the exact work
duty which caused the exertion. Plumbers Contractors, Inc. v. Workmen’s
Compensation Appeal Board (Lewellyn), 402 A.2d 555, 557 (Pa. Cmwlth. 1979).
In other words, “[i]t is not necessary to prove and identify the precise work details
which caused a heart death that resulted from decedent’s exceptional work
activity.” Pennsylvania State Oral School v. Workmen’s Compensation Appeal
Board (Gerek), 475 A.2d 175, 178 (Pa. Cmwlth. 1984).
Lewellyn and Gerek are instructive. In Lewellyn, the decedent was
told to walk 150 yards to retrieve a plastic jug weighing a few ounces shortly after
10
he arrived at work. The decedent was later found lying on the ground with the
plastic jug nearby and shortly thereafter was pronounced dead of a heart attack.
The emergency room doctor reported that the decedent’s co-worker informed him
that the decedent had been unloading a fuel tank when he fell to the ground.
Noting that it was unclear exactly what the decedent was doing when he collapsed,
this Court held it was of no moment, explaining:
The matter which is not clear is not whether [the heart attack]
was caused by exertion, this is clear; rather what is not clear is
what the exertion could have been. This need not be decided
for the overwhelming circumstantial evidence cries out that
whatever the exertion was it occurred as part of the work
activity and was the cause of the heart attack which resulted in
his death. This is more than sufficient to support the award.
Lewellyn, 402 A.2d at 557.
In Gerek, the medical expert witness was given a hypothetical that the
decedent worked in a hot boiler room and was required to push a wheelbarrow
loaded with coal, shovel the coal into the boiler, and rake, spread and remove ashes
from the boiler. The decedent was found lying outside the boiler room door,
expired. Based on the hypothetical, the doctor opined that the decedent’s death
from an acute coronary thrombosis was causally related to his employment. This
Court held that this testimony was sufficient to establish causation; “precise work
details” causing the death were not necessary. Gerek, 475 A.2d at 178 (citing
Lewellyn, 402 A.2d at 555).
Here, Claimant testified to Decedent’s regular job duties, which
included using a jackhammer to tear up roads, working on water mains and cutting
tree roots out of the sewer system. It is undisputed that Decedent had a very
physical job. Decedent did not alternate between days of heavy duties and days
11
performing light office duties. His daily job involved strenuous physical activity.
On November 7, 2007, after an extremely long day of work, he collapsed beside
the water main. This evidence is sufficient to support Dr. Wolk’s opinion that the
long workday and physical activity caused the fatal heart attack.
The WCJ correctly noted that although the details of Decedent’s final
workday are scant, such details are unnecessary because of the nature of
Decedent’s job. The Board erred in requiring Claimant to present evidence from
Decedent’s co-workers on exactly what happened when Decedent collapsed.7
Applying the Board’s proffered burden, a claimant could not prevail on a fatal
claim petition where the decedent was working alone because the claimant would
be unable to prove definitively what the decedent was doing before the heart
attack. The overwhelming circumstantial evidence in this case shows that exertion
from Decedent’s regular work activities over the course of a 14-hour workday
caused his heart attack. “Precise work details” were not required.
Accordingly, the order of the Board is reversed.
______________________________
MARY HANNAH LEAVITT, Judge
7
The Board relied upon this Court’s decisions in Villanova University v. Workers’
Compensation Appeal Board (Mantle), 783 A.2d 366 (Pa. Cmwlth. 2001), and Craftsmen v.
Workers’ Compensation Appeal Board (Krouchick), 809 A.2d 434 (Pa. Cmwlth. 2002). In
Mantle, there was testimony from the decedent’s co-worker about what the decedent was doing
when he had a heart attack (walking 400 yards) and in Krouchick co-workers testified about the
decedent’s deteriorating condition while performing his work duties. In both cases the Court
held that this factual evidence supported the medical experts’ opinion of causation. However,
the Court did not hold that eye witness testimony of a decedent’s activities prior to a heart attack
is always necessary.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Dietz (deceased) by :
Judith Dietz, :
Petitioner :
:
v. : No. 2051 C.D. 2014
:
Workers’ Compensation Appeal :
Board (Lower Bucks County Joint :
Municipal Authority), :
Respondent :
ORDER
AND NOW, this 14th day of August, 2015, the order of the Workers’
Compensation Appeal Board dated October 15, 2014, in the above-captioned
matter is hereby REVERSED.
______________________________
MARY HANNAH LEAVITT, Judge