Props to Vince Hedrick and John Gilbert for battling it out in another one of those IAB causation cases involving a heart attack. These don't really crop up all that often and this one has a little twist on its facts--claimant did not succumb on the job, he collapsed during a program of work conditioning using an elliptical workout machine at PRO Physical Therapy following an occupational knee injury which produced a fracture of the right tibia. Did you ever notice that all of the funky PT issues transpire at PRO? I guess they are just ahead of the curve over there....:>)
Returning to our tutorial, and what made this case worthy of defense, no doubt, was the fact that this Claimant was a real poster boy for Jenny Craig. The defense medical expert, Dr. Irena Stolar, testified that she could not weigh the claimant because her scale only went up to 350 pounds; the claimant reported he weighed 395 pounds. Co-morbidities impacting the proclivity for a heart attack included high blood pressure, diabetes, high cholesterol, and a pack per day smoking history. Claimant's past medical history included a cardiac catheterization in 2005.
The claimant's medical expert was Dr. Gilbert Leidig, in whose opinion the July 10th event on the elliptical was the trigger for the claimant's heart attack. According to Dr. Leidig, notwithstanding the aggressive medical treatment in place for an acknowledged situation with heart disease, diabetes, and hypertension, the "high activity from the exercise on July 10 caused the heart rate and blood pressure to go up and triggered the attack."
Dr. Stolar testified that that the July 10 heart attack was "more related to his underlying predisposing risks." Both doctors opined that the event could have occurred at any time with or without exertion; there was no dispute that the cardiac episode manifested during exercise on the elliptical machine and that sudden intense physical activity can be a trigger for a heart attack. Dr. Stolar, however, did not concede that the exercise was a "trigger" or a "substantial cause" in light of the other admitted risk factors.
Why this case?
This one's worth reading to take a careful look at how the Board (and Chris Baum) dealt with the causation issue. The facts were not in dispute and truth be told, the medical testimony was really not that far apart-- more a matter of semantics than anything else. There was more agreement among the docs than divergence in opinion. It did not matter that the heart attack could have occurred at any other time with any other activity (or lack thereof). And Dr. Stolar's conclusion that the heart attack was "more related" to claimant's co-morbidities side-stepped the issue, according to the Board.
The Board refers to the "but for" analysis of Reese, and to the requirement that the exertion on the elliptical machine need only be a "substantial cause" of the heart attack, not the primary or predominant cause. George Powell v. Ken-Crest Services, IAB # 1314711 (8/5/10).
But does it make sense?
Given the state of our case law, I guess so.
Vince Hedrick did a great job for his client with this one. This decision is a splendid exemplar of the low causation threshold here in Delaware. Was this claimant a heart attack waiting to happen? Sure seems so. Was John Gilbert thinking clearly when he suggested they fight the claim? I would say heck yes, though the odds were stacked against him. As many injured workers as I have represented in my almost 3 decades of legal practice, I still don't fully get the liberality of the standard, though. It seems like such a "gimme".
And here is what comes to mind-- that famous line from Miracle on 34th Street, one of my favorite Christmas movies...... "Faith is believing in something when common sense tells you not to." Whether it's Kris Kringle and (a very young) Natalie Wood or Vince Hedrick and his client discussing the merits of this case at the outset....that line is exactly what comes to mind....:>)
Oh, and someone hand that man another cigarette, if you would be so kind.
Stay cool, stay poolside,
Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts
1. the guy obviously had a work injury that the carrier wanted him to return to work from or he would not have been doing work hardening. Carrier brought it on itself. Guy is clearly a heart attack waiting to happen, so why stress him by insisting on work hardening when he obviously needs a much more sophisticated plan for rehabbing safely?
2. The problem with understanding this is that few people who do defense work actually understand and accept that the thin skull rule is the rule, not the exception. Reese, Sewell, Whalen and all the others can be understood much more easily if you understand and ACCEPT that rule and what combining it with the natural and direct consequence rule does.. If you resist it, you will have cognitive dissonance when faced with the straight forward application of it.
3. He would not have been doing PT at that time and in that way had work hardening for a work injury not been necessary, thus if he suffers any further harm doing the PT (including an auto accident GOING to the PT), it is a covered event.
4. If harm flows from treatment, even malpractice or accident incident to treatment, WC is on the hook.
5. They would have been better off paying total and protecting their little time bomb from detonation once they were exposed to the risk, but the drive to get to partial instead of total is rather like the drive of a salmon to return to the stream where it was born to procreate, overwhelming all sense and ignoring all dangers....