Opinion
No. 109,094.
2013-11-22
Michial GROVE (Deceased), Appellee, v. AGRELIANT GENETICS, LLC, and North River Insurance Company, Appellants.
Appeal from Workers Compensation Board. D'Ambra M. Howard, and Ryan D. Weltz, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Overland Park, for appellants. Thomas M. Warner, Jr., of Warner Law Offices, P.A., of Wichita, for appellee.
Appeal from Workers Compensation Board.
D'Ambra M. Howard, and Ryan D. Weltz, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Overland Park, for appellants. Thomas M. Warner, Jr., of Warner Law Offices, P.A., of Wichita, for appellee.
Before ARNOLD–BURGER, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
In this worker's compensation case, the administrative law judge (ALJ) found the circumstances of the death of claimant Michial Grove (Claimant) to be compensable. The Workers Compensation Board (Board) affirmed that decision. Claimant's employer, AgReliant Genetics, LLC (AgReliant), requests review of the Board's decision, claiming Claimant's death was not compensable because he was already dead from a sudden cardiac event before his car collided with two semitrucks. For the reasons stated below, we affirm the Board's decision.
Facts
Claimant was a district sales manager for AgReliant. He traveled throughout western Kansas selling seed. At the hearing before the ALJ, Claimant's wife, Debbie Grove, testified that Claimant had congestive heart failure for which he was being treated with highblood pressure pills and a diuretic. She also stated that although he never was diagnosed, he probably had sleep apnea and occasionally used a CPAP (continuous positive airway pressure) machine to treat it. Claimant was survived by his wife and no other dependents.
On April 21, 2010, Claimant awoke in apparent good health and did not complain to Debbie of any chest pain or any other health issues. Debbie was not aware that Claimant had any health conditions in the period of time before he left to drive his route for AgReliant. While traveling his route that day, Claimant's truck crossed the centerline, collided with the side of an oncoming semitruck, and then struck another semitruck head on. Claimant was pronounced dead at the scene. In the accident report, the driver of the first semitruck was quoted as saying, “ ‘When the pickup was coming at me it looked like the driver was reaching for something in the right floorboard. He never looked up. Almost like there was something wrong with him. He was not reacting.’ “
Dr. Darren Matchell, who pronounced Claimant dead, listed the immediate cause of death on the death certificate as “motor vehicle accident due to (or as a consequence of) coronary artery disease.”
The pathologist who performed Claimant's autopsy was Dr. Lyle Noordhoek. Dr. Matchell provided Dr. Noordhoek with the facts of the accident, including that the driver was slumped over prior to impact. Dr. Noordhoek testified he could say within a reasonable degree of medical probability Claimant had some sort of cardiac arrhythmia that resulted in a loss of consciousness. The autopsy he wrote listed the following as the cause of death: “Loss of vehicular control due to, or as a consequence of, probable cardiac arrhythmia associated with biatrial and biventricular cardiac dilation and hypertrophy and prior myocardial infarcts with scarring and significant coronary artery atherosclerosis.” In his testimony, Dr. Noordhoek defined cause of death as “the primary event that leads to a subsequent sequence of physiologic changes that terminates in a death.” He further testified that his opinion, to a reasonable degree of medical certainty,” was that the cause of Claimant's death was massive blunt trauma as a result of the collisions. Thus, the autopsy concluded by stating: “The cause of death is multisystems trauma with destruction of central nervous system and multiple blunt traumatic injuries due to, or as a consequence of, probable cardiac arrhythmia associated with prior myocardial infarct, cardiomegaly, and coronary artery atherosclerosis with evidence of previous infarct.” However, Dr. Noordhoek could not say whether Claimant died before the impact, nor could he discern within a reasonable degree of medical probability that Claimant was alive immediately prior to the impact. In fact, he testified that his autopsy was not authored with any opinion one way or another as to whether Claimant was alive just prior to the impact.
AgReliant's attorney requested Dr. Michael Farrar to review the deposition of Dr. Noordhoek, Claimant's medical records documenting treatment for cardiac issues, the death certificate, the accident report, photos of the scene, and the forensic report. Dr. Farrar was a board-certified cardiologist who had been in private practice for 25 years, devoting 99 percent of his time to the active treatment of patients. He was not a pathologist, did not perform autopsies, and had never reviewed any of the tissue slides from Claimant's autopsy. Dr. Farrar ultimately concluded, within a reasonable degree of medical probability, as follows:
“I think it's by far and away most likely that he had sudden cardiac death, that he developed a ventricular fibrillation while he was driving his truck, lost consciousness, slumped forward, crossed over the central line, hit the one truck and then was diverted into the second truck and driven into the field.”
His letter summarizing his findings similarly stated: “The truck collision and accident resulted from death and in this instance, was not the cause of it.” Furthermore, he testified there was no way to be able to prove or say Claimant was alive because of “the overwhelming likelihood” that he experienced sudden cardiac death given his underlying cardiac condition and the description of the scenario.
Claimant's attorney requested Dr. Roger Evans to review and make comments about the records concerning Claimant and his death, including Dr. Farrar's deposition and report, Dr. Noordhoek's deposition, the autopsy report, the accident report, the death certificate, KBI reports, photographs of the accident scene, and Claimant's medical records. Dr. Evans was a cardiologist and had performed autopsies in the past, but he was not a pathologist or coroner and did not review the tissue slides from Claimant's autopsy. Dr. Evans testified in his deposition that, in his opinion, Claimant's death “was caused by the blunt trauma that crushed his chest and also ruptured his brain [and] his skull” as opposed to sudden cardiac death. His letter summarizing his findings stated:
“Although there is much speculation as to what caused [Claimant] to pass from his lane leftward into oncoming traffic, the cause of death is actually laid out very nicely by Dr. Noordhoek, and that is multisystem trauma with destruction of the central nervous system, and multiple blunt traumatic injuries. As he was alone in the vehicle and it is impossible to know what transpired, it is pure speculation as to whether or not he was distracted or had other issues....”
On May 21, 2012, the ALJ found Claimant “met with personal injury by accident arising out of and in the course of his employment which resulted in his death, based on Dr. Noordhoek's and Dr. Evans' opinions.” The ALJ also observed that Dr. Farrar concluded Claimant suffered sudden cardiac death prior to the accident but admitted he could not say with absolute certainty that Claimant had an arrhythmia. Therefore, the ALJ awarded to Debbie funeral expenses of $5,000, an initial payment of $40,000, and weekly benefits of $546 per week for 108.71 weeks until a total of $250,000 had been paid.
AgReliant applied to the Board for review of the ALJ's award. After hearing oral argument on September 11, 2012, the Board affirmed that decision on November 20, 2012. It found the opinions of Dr. Evans and Dr. Noordhoek to be more persuasive than those of Dr. Farrar and concluded Claimant's death “was the result of a work-related automobile accident involving significant blunt force trauma.”
Analysis
On appeal, AgReliant claims there is insufficient evidence to support the conclusion reached by the Board that the cause of Claimant's death in this case was an automobile accident. First, AgReliant argues that the medical evidence clearly establishes Claimant was already dead from sudden cardiac arrest when the accident occurred; thus, his death was not compensable. Even if the evidence does not clearly establish Claimant was already dead when the accident occurred, AgReliant argues Claimant's death still is not compensable because the burden is on Claimant to affirmatively prove that the accident was the cause of death, rather than on AgReliant to prove that Claimant died before the accident happened, and Claimant cannot satisfy this burden because there is no medical evidence to conclusively establish Claimant was alive at the time of the accident.
Standard of review
Final orders of the Board are subject to review under the Kansas Judicial Review Act, K.S.A.2012 Supp. 77–601 et seq. , as amended. K.S.A.2012 Supp. 44–556(a). Under K.S.A.2012 Supp. 44–556(a), such review shall be upon questions of law. On appeal, the burden of proving the invalidity of the agency action rests on the party asserting such invalidity. K.S.A.2012 Supp. 77–621(a)(l).
In addition, K.S.A.2012 Supp. 77–621(c) provides that an appellate court shall grant relief if it determines any one or more of the following pertinent situations exists:
“(4) the agency has erroneously interpreted or applied the law;” (5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure; [or]
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act.”
The statute goes on to explain that “ ‘in light of the record as a whole’ “ means “the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record ... cited by any party that supports such finding.” K.S.A.2012 Supp. 77–621(d). Panels of this court have interpreted this provision to require appellate courts to examine whether the evidence supporting the Board's decision has been so undermined by other evidence that it is insufficient to support the Board's conclusion. Olds–Carter v. Lakeshore Farms, Inc., 45 Kan.App.2d 390, 395, 250 P.3d 825 (2011)(citing Herrera–Gallegos v. H & H Delivery Service, Inc., 42 Kan.App.2d 360, 363, 212 P.3d 239 [2009] ). In reviewing the evidence in light of the record as a whole, the court does not reweigh evidence or engage in de novo review. K.S.A.2012 Supp. 77–621(d).
Although not statutorily defined, “substantial evidence” refers to “evidence possessing something of substance and relevant consequence to induce the conclusion that the award was proper, furnishing a basis of fact from which the issue raised could be reasonably resolved.” Redd v. Kansas Truck Center, 291 Kan. 176, 183–84, 239 P.3d 66 (2010). Stated another way, substantial evidence is “such evidence as a reasonable person might accept as being sufficient to support a conclusion.” Herrera–Gallegos, 42 Kan.App.2d at 363.
Standard of proof
In workers compensation cases, the statute in effect at the time of the claimant's injury governs the rights and obligations of the parties. See Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585, 588, 257 P.3d 255 (2011). The relevant statute in effect in April 2010 when Claimant died provided:
“If in any employment to which the workers compensation act applies, personal injury by accident arising out of and in the course of employment is caused to an employee, the employer shall be liable to pay compensation to the employee in accordance with the provisions of the workers compensation act.” K.S.A.2009 Supp. 44–501(a).
Under the Workers Compensation Act, the phrases arising “out of and “in the course of employment have distinct meanings, and both conditions must exist for a claim to be compensable. Kindel v. Ferco Rental, Inc., 258 Kan. 272, 278, 899 P.2d 1058 (1995). Our Supreme Court has said:
“The phrase ‘out of employment points to the cause or origin of the accident and requires some causal connection between the accidental injury and the employment. An injury arises ‘out of’ employment when there is apparent to the rational mind, upon consideration of ail the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Thus, an injury arises ‘out of’ employment if it arises out of the nature, conditions, obligations, and incidents of the employment. The phrase ‘in the course of’ employment relates to the time, place, and circumstances under which the accident occurred and means the injury happened while the worker was at work in the employer's service. [Citations omitted.]” 258 Kan. at 278.
As the Board observed in this case, the parties do not dispute that the injury sustained here—Claimant's death—arose “in the course of claimant's employment. The dispute centers instead on whether Claimant's death arose “out of the car accident, and thus his employment, or whether his death arose “out of Claimant's personal health condition, which was unrelated to his employment.
Where an employment injury is clearly attributable to a personal condition of the employee, and no other factors intervene or operate to cause or contribute to the injury, that injury is not compensable. But where an injury results from a preexisting condition and some hazard of employment that overlap, compensation is generally allowed. Bennett v. Wichita Fence Co., 16 Kan.App.2d 458, 460, 824 P.2d 1001,rev. denied 250 Kan. 804 (1992). In Bennett, the claimant suffered from epileptic seizures and had a seizure while driving a company vehicle, blacked out, and hit a tree. A panel of this court held the conditions of the claimant's employment (driving the company vehicle) put him in a position of increased risk. The panel concluded this increased risk provided the required causal connection between his injury and his employment necessary to find the accident arose out of his employment. 16 Kan.App.2d at 460. The panel noted: “While the seizure was personal to claimant, the risk of travel arose out of the employment and the two concurred to produce the injuries.” 16 Kan.App.2d at 460.
Therefore, under Bennett, if Claimant in this case died in the seconds before the accident, the death would be the result of a personal condition and thus not compensable. However, if Claimant was merely unconscious, but not dead, his personal condition combined with the accident to result in his death and would therefore be compensable.
Burden of proof
The burden of proof in proceedings under the Workers Compensation Act is on the claimant “to establish the claimant's right to an award of compensation and to prove the various conditions on which the claimant's right depends.” K.S.A.2009 Supp. 44–501(a). AgReliant contends this statue requires Claimant to unequivocally prove he was alive at the time of the accident in order to satisfy this burden.
Interpretation of a statute is a question of law over which appellate courts have unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). Therefore, an appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009). The Kansas Workers Compensation Act is to be “liberally construed for the purpose of bringing employers and employees within the provisions of the act to provide the protections of the workers compensation act to both. The provisions of the workers compensation act shall be applied impartially to both employers and employees in cases arising thereunder.” K.S.A.2009 Supp. 44–501(g).
Again, K.S.A.2009 Supp. 44–501(a) provides that the burden of proof in proceedings under the Workers Compensation Act is on the claimant “to establish the claimant's right to an award of compensation and to prove the various conditions on which the claimant's right depends.” The trier of fact considers the whole record in determining whether the claimant has satisfied this burden of proof. K.S.A.2009 Supp. 44–501(a). In K.S.A.2009 Supp. 44–508(g), “burden of proof” is defined as “the burden of a party to persuade the trier of facts by a preponderance of the credible evidence that such party's position on an issue is more probably true than not true on the basis of the whole record.”
AgReliant's assertion that it was Claimant's burden to prove Claimant was alive at the time of the accident is based on K.S.A.2009 Supp. 44–510b, which awards compensation “[w]here death results from injury.” However, the plain language of the definition of “burden of proof” in K.S.A.2009 Supp. 44–508(g) indicates the legislature did not intend to require a claimant in a workers compensation proceeding to unequivocally prove his or her position. Under K.S.A.2009 Supp. 44–501(a) and K.S.A.2009 Supp. 44–508(g), a claimant simply must prove that he or she has a right to compensation and the various conditions on which that right depends are “more probably true than not true.” Thus, Claimant did not have to definitively prove that he was alive at the time of the accident; he just had to show that it was more probably true than not true that the accident caused his death.
Substantial evidence supports the Board's finding
AgReliant contends the Board's finding that Claimant's death was compensable is not supported in the record by substantial competent evidence. Specifically, AgReliant argues Claimant failed to sustain his burden of proof to affirmatively prove that it was the collision in question, and not heart failure, that caused his death.
The Board ultimately affirmed the award of the ALJ to Claimant's widow upon finding “Claimant's death was the result of a work-related automobile accident involving significant blunt force trauma.” In so finding, the Board expressly stated in its decision that it considered “the opinions of Dr. Evans and Dr. Noordhoek to be more persuasive than that of Dr. Farrar.” Specifically, the Board found persuasive the opinion of Dr. Noordhoek, who determined Claimant's cause of death was “ ‘[l]oss of vehicular control due to, or as a consequence of, probable cardiac arrhythmia.’ “ And the Board found significant that part of Dr. Noordhoek's testimony stating that massive blunt force trauma was the cause of Claimant's death and, if more specificity had been required at the time he filled out the death certificate, he would have included the fact that coronary artery disease was, indeed, a significant condition that contributed to Claimant's death. The Board also found persuasive the opinion of Dr. Evans, who determined that Claimant's cause of death was “blunt force trauma that crushed his chest and ruptured his brain and skull” and that he could find no evidence to show Claimant was experiencing a heart attack at the time he drifted across the centerline. Finally, the Board cited to an excerpt from the opinion of Dr. Farrar, who determined that “most likely [C]laimant suffered cardiac death prior to his truck accident.”
Viewing the evidence in light of the record as a whole, there is substantial competent evidence to support the Board's findings. More specifically, the following evidence supports a loss of consciousness before the accident and not a heart attack resulting in sudden death. Dr. Evans testified at his deposition that, in his opinion, Claimant's death “was caused by the blunt trauma that crushed his chest and also ruptured his brain [and] his skull” as opposed to sudden cardiac death. The letter he wrote summarizing his findings stated the cause of death as “multisystem trauma with destruction of the central nervous system, and multiple blunt traumatic injuries.”
In addition, much of Dr. Noordhoek's testimony supports the Board's determination that blunt force trauma was the cause of death. The record shows that Dr. Noordhoek actually performed the autopsy, he was the only expert who was a pathologist, and he was the only expert who reviewed the slides of tissue samples from Claimant's heart. During the autopsy, Dr. Noordhoek found the cranial vault had been ruptured, the brain had been destroyed, and the chest had been torn open by the forces of the accident. He noted the heart showed blood around the arteries, indicating that it had suddenly stopped. He said the trauma of the accident had forced the heart against the anterior surface of the chest, resulting in a contusion, or bruising on the surface of the heart. He went on to state the brain was basically liquified by the force of the impact. Dr. Noordhoek testified that these injuries would be enough to kill a person on their own.
Dr. Noordhoek also presented evidence a reasonable person might accept as being sufficient to support a conclusion that Claimant had an arrhythmia that caused him to lose consciousness just before the accident, as opposed to a heart attack that caused him to die just before the accident. Claimant's wife Debbie testified that Claimant had congestive heart failure, for which he was being treated with high blood pressure pills and a diuretic. The record also shows that Dr. Noordhoek noted Claimant's heart was “distinctly abnormal.” It was “markedly increased in size and shape,” weighing 795 grams, whereas a normal heart weighs 250–350 grams. Dr. Noordhoek also found scarring in the heart and evidence of a previous myocardial infarct, which is insufficient blood flow to a portion of the heart that causes scarring—or in layman's terms, a heart attack. He said the coronary arteries were “very calcific and stenotic” with greater than 80 percent stenosis of all three coronary arteries. Dr. Noordhoek testified that at approximately 70 to 80 percent stenosis of the coronary arteries, significant disruption of blood flow occurs. He further testified that in his microscopic evaluation, he saw evidence of an ongoing longstanding ischemic injury, a previous myocardial infarct, and an evolving infarct. An evolving infarct means there is insufficient blood flow so that the fibers are dying, which will result in a myocardial infarct. He concluded that Claimant would have been at significant risk of the sudden development of arrhythmias, which is a disruption of the heart's normal rhythm causing insufficient blood to circulate for either sustained consciousness or sustained life. He also stated that Claimant was at a marked risk for spontaneous thrombosis, i.e.,blood clots, of the artery that could result in a heart attack.
Moreover, Dr. Noordhoek testified there were areas on the slides where the myocardial fibers were darker than the other fibers. He said the darker fibers are an indication of an acute disruption of blood flow associated with the onset of a new myocardial infarct. Dr. Noordhoek testified that this discoloration could not be attributed to any other cause, including massive trauma, and that he believed it to be evidence that Claimant was having some sort of a heart event. Therefore, Dr. Noordhoek testified he believed Claimant likely had an arrhythmia that resulted in a loss of consciousness, noting that it was not an active heart attack but could have resulted in one. He testified that he could say within a reasonable degree of medical probability that Claimant had some sort of cardiac arrhythmia that caused him to cross the centerline and impact the trucks based on both the discoloration in the heart and the observation that Claimant was slumped in the seat. However, Dr. Noordhoek acknowledged he could not make that statement based on the autopsy alone. He testified that, as described to him by the highway patrol, there was no evidence of skid marks at the scene and no apparent indication Claimant was conscious or tried to control the car prior to the impact, which suggested to him that Claimant was no longer able to function prior to impact.
In addition, there is also substantial evidence to support a finding that Claimant did not experience any heart event at all immediately prior to the accident. For example, Dr. Noordhoek stated that the types of color changes he found in Claimant's heart tissue samples could exist anywhere from within 30 minutes of an acute injury to the course of several weeks. Moreover, Dr. Noordhoek testified that he found no evidence of an acute ischemic event, which is a sudden interruption of blood flow such that there is loss of function, usually associated with the onset of arrhythmia. He also noted that he did not see any evidence of blood clots during the autopsy. Dr. Noordhoek stated that the toxicology examination was positive for a heart drug and diphenhydramine, which is usually found in cough or cold medication. Dr. Evans observed that the toxicology report showed Claimant had Benadryl in his system, which could make someone more sleepy. Combined with the evidence that Claimant was slumped over, this toxicology evidence could be accepted by a reasonable person as sufficient to support a conclusion that Claimant fell asleep at the wheel.
The only evidence detracting from the Board's finding that the cause of death was blunt force trauma is Dr. Farrar's testimony:
“I think it's by far and away most likely that he had sudden cardiac death, that he developed a ventricular fibrillation while he was driving his truck, lost consciousness, slumped forward, crossed over the central line, hit the one truck and then was diverted into the second truck and driven into the field.”
He further opined that generally when a person dies of an acute arrhythmia, there is no evidence of it in the autopsy. His letter summarizing his findings similarly stated: “The truck collision and accident resulted from death and in this instance, was not the cause of it.” Dr. Farrar based this opinion on “[t]he fact that he was slumped over in conjunction with the autopsy findings” and the fact that Claimant's medical history indicated an increased risk of sudden cardiac death. To that end, Dr. Farrar noted that Claimant had a history of congestive heart failure. Congestive heart failure occurs when the heart muscle is either weak or stiff so that it does not pump normally, causing pressure in the heart to build up and fluid to be pushed out of blood vessels into the tissues of the body. In addition, Dr. Farrar noted that Claimant had a history of peripheral vascular disease, which is blockages in arteries outside of the heart and is indicative of severe hardening of the arteries. He noted that Claimant underwent four cardiac catheterizations in a span of 10 years, and he testified that this indicated Claimant had ongoing and recurrent malignant coronary artery disease that required aggressive treatment. Dr. Farrar also found Claimant had a myocardial infarction in August 2009. At that time a coronary angiography was performed that showed a complete blockage of a branch of one of the three arteries, which was opened with a stent. The most recent echocardiogram Claimant underwent was in September 2009. That test showed mild left ventricular dysfunction, which Dr. Farrar said put Claimant at a high risk of heart failure, arrhythmias, and sudden death. He also noted Claimant had a history of hypertension, emphysema, and sleep apnea. He testified that people who have severe obstructive sleep apnea are at higher risk for heart attack, stroke, heart failure, atrial fibrillation, aortic dissection, and sudden cardiac death. When asked about whether he believed the car accident was the cause of Claimant's death as opposed to a heart attack, Dr. Farrar testified there simply was no way to be able to medically prove Claimant had been alive at the point of impact and that, in his opinion, there was an “overwhelming likelihood” that Claimant had suffered sudden cardiac death prior to the car accident given his underlying cardiac condition and the description of the scene.
But viewing the evidence in light of the record as a whole, we find substantial competent evidence in the record to support the Board's finding that Claimant's death was the result of a work-related accident involving significant blunt force trauma. In so finding, we acknowledge there was some relevant evidence detracting from such a finding. But given the substance of the medical testimony in the record that supports the Board's finding, we simply cannot say that the finding was so undermined by other evidence that it is insufficient to support the Board's conclusion. See Olds–Carter, 45 Kan.App.2d at 394–95.
Affirmed.