### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

MCMECHEN VOLUNTEER FI RE DEPARTMENT, INC., FILED Employer Below, Petitioner May 29, 2018

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS 

### vs.) No. 18-0178 (BOR Appeal No. 2052094) OF WEST VIRGINIA 

### (Claim No. 2015025832)

JEANNETTE ROSE, WIDO W OF GARRY ROSE, Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner McMechen Volunteer Fire Depart ment, Inc., by Daniel Murdock, its attorney, appeals the decision of the West Virginia Work ers’ Compensation Board of Review. Jeannette Rose, widow of Garry Rose, by Jeffrey Kessler, its attorney, filed a timely response.

The issue on appeal is dependent’s benefits. The claims administrator denied dependent’s benefits on March 23, 2015. The Office of Judges reversed the decision in its June 23, 2017, Order and granted dependent’s benefits. The Or der was affirmed by the Board of Review on January 31, 2018. The Court has carefully review ed the records, writt en arguments, and appendices contained in th e briefs, and the case is mature for consideration.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate

Procedure.

Garry Rose, a firefighter and EMT, died in the course of his empl oyment on February 6, 2015. A treatment note from Ohio Valley Medical Ce nter that day indica tes Mr. Rose, who was sixty-seven, was performing his duties as an EM T when he brought a patient to the emergency room. While there, Mr. Rose collapsed, was unabl e to be revived, and passed away. The clinical impression was cardiac arrest.

In a witness statement, Susan Rucki, an EMT who worked with Mr. Rose, stated that on that day, she and Mr. Rose were called out for an emergency. They met at the patient’s house,

1carried him down the stairs, and loaded him into the ambulance. Mr. Rose then drove to the emergency room and helped move the patient to a bed. He then cleaned and redressed the

ambulance cot and loaded it back into the ambulan ce. Ms. Rucki stated that she was waiting in the lobby when she saw Mr. Rose collapse to the ground. Cardiopulmonary resuscitation was immediately started but he did not respond. Ms. Rucki also completed an incident report in

which she stated that she and Mr. Rose were di spatched in the early hours of February 5, 2016, to assist with a patient. Ms. Ruck i stated that she was about four feet from Mr. Rose when he collapsed. Though cardiopulmonary resuscitation was immediately starte d, Mr. Rose did not respond and was pronounced dead.

Crystal Brown also gave a statement regardi ng Mr. Rose’s death. She stated that she was an EMT and responded to the same call as Mr. Rose on February 5, 2016. Ms. Brown noted that the patient weighed between 100 and 130 pounds. Ms. Brown stated that she, Mr. Rose, Ms. Rucki, and two police officers carried the patient down a set of stairs a nd loaded him into the

ambulance. Mr. Rose then drove the ambulance to the hospital, pushed the patient into the emergency room, and assisted with the transfer to a bed. Ms. Brown also completed an incident report in which she reiterated that she and Mr. Ro se were called to the ho use of an unresponsive male on February 5, 2016. They loaded the patien t into the ambulance and transported him to the emergency room. While there, Mr. Rose collapsed and ultimately died.

The death certificate lists the cause of deat h as hypertension and ar teriosclerotic heart disease. On March 31, 2015, a re port of death investigation and post-mortem examination findings was completed by Joseph DelTondo, D.O., Chief Deputy Medical Examiner. The report indicates Mr. Rose had a history of hypertension, high ch olesterol, seizures, and a family history

of heart attacks. Mr. Rose co llapsed at work and after fort y minutes of cardiopulmonary resuscitation, was pronounced dead. The autopsy s howed hypertension and ar teriosclerotic heart

disease as well as adrenal cor tical adenoma. Dr. DelTondo opined that Mr. Rose died due to hypertensive and arteriosclerotic heart disease. The manner of death was listed as natural.

On May 19, 2015, James Comerci, M.D., Mr. Rose’s family physician, completed a report opining that Mr. Rose’s physical and emo tional exertion during his job duties as an EMT were directly related to his de ath. He asserted that the activity of transporting the patient

contributed to the sudden cardiovascular event.

Ms. Rucki testified in a deposition on D ecember 31, 2015, that she was called to a patient’s house on February 5, 2016, and met Mr. Rose there. She stated that after they got the patient loaded onto a cot, she, Mr. Rose, a nd two police officers ca rried him down a large

number of stairs. She stated that Mr. Rose carried the bulk of the weight. Af ter they arrived at the emergency room, they transferred the patient to a cot and then Mr. Rose redressed and reloaded the cot. She was standing approximately four f eet from Mr. Rose when he collapsed, which was approximately five minutes after they arrived at the hospital. Ms. Rucki stated that Mr. Rose did not appear to be in distress over the course of the evening. She tes tified that the house they were called to had approximately twenty steps which were very steep and uneven. Mr. Rose went up and down them at least twice, once with a patient. She stated that he was at the head of the cot and took most of the weight. Ms. Rucki opined that it was an incredibly tiring call, and she was

2exhausted and sweating by the time it was finishe d, as was Mr. Rose. She stated that it was a high exertion, high stress, and hi gh anxiety transport because th e patient was unresponsive and seizing and they had to move as quickly as pos sible to get him to the emergency room. Once they got to the emergency room, Mr. Rose took the lead because he never let female coworkers take the bulk of the weight, and he did the most st renuous part of the job. Ms. Rucki stated that it probably takes five to ten minutes for her bl ood pressure and pulse to calm down after a transport. While she was waiting for paper wor k, Mr. Rose was standing four feet away and appeared to be sweating and in a stressful physical exertion stage. Ms. Rucki testified that he convulsed briefly and then collapsed.

Ms. Brown also testified in a deposition on December 31, 2015. She stated that she worked with Mr. Rose for about two years. On February 5, 2016, she arri ved at a call with Mr. Rose. When they got there, they realized the patient was comple tely unresponsive. She stated that they did not run up the stairs because they were steep and uneven but they walked as quickly as possible. Mr. Rose went up and down the stairs twice, once while helping to carry the patient. Ms. Brown stated that Mr. Rose was a gentle man and performed the bulk of the lifting when possible, including when they arrived at the emergency room early that morning.

Dr. Comerci testified in a deposition on Novemb er 15, 2016, that he is board certified in family medicine and had been Mr. Rose’s family doctor. It was his opinion that the physical and emotional exertion during Mr. Rose’s duties as a first responder were directly related to his sudden death, and the activity th at day contributed to his sudden cardiovascular event. Dr.

Comerci stated that he reviewed Mr. Rose’s medical records, the autopsy, and the emergency

room records from the date he died. Mr. Rose had arterial bypass surger y five to seven years before his death but had no complaints of chest pain or other cardiovascular problems. Mr. Rose also suffered from chronic obstructive pulmon ary disease due to smoking and occupational exposure. Dr. Comerci stated that it was possible that he could have suffered the cardiac event without the stressful activities that proceeded it; however, it would be more surprising if

someone had a massive cardiac event that was not proceeded by exertion. He opined that Mr.

Rose had a cardiac event which le d to hypotension, and it is very common for such an event to

cause a seizure.

In a March 9, 2017, file review , ChuanFang Jin, M.D., opined that Mr. Rose’s sudden cardiac death was caused by severe coronary arte ry disease, significant hypertensive heart disease, and fibrosis of the heart. She stated that exertion is not a significant contributor to sudden cardiac death. She agreed with the autops y report that the cardi ac arrest was due to coronary artery disease with significant blockage of two vessels, significant hypertrophy, and probable arrhythmia due to fibrosis of the heart. Dr. Jin found that Mr. Rose’s death was unlikely

due to a heart attack as the autopsy showed no evidence of acute myocardial infarction. The cardiac arrest was most likely caused by arrhythm ia and had no relation to his employment. Dr.

Jin stated that she read Dr. Comerci’s testimony and disagreed with his conclusion. She stated that his conclusion was based on the presumption that physical activity during work caused heart ischemia and sudden death. She opined that his c onclusion overstates the effect of exertion on the heart. The autopsy showed no evidence of h eart attack, and Mr. Rose’s cardiac event was most likely caused by arrhythmia, which has been f ound as the cause in a vast majority of sudden

3cardiac deaths. She stated that th e majority of cardiac deaths occu r at rest, not during or right

after exertion.

The claims administrator denied Mrs. Rose’s request for dependent’s benefits on March 23, 2015. The Office of Judges reversed the decision a nd granted dependent’s benefits in its June 23, 2017, Order. It found that Mr. Rose was in th e course of his employment when he died. The question to be answered was whether the death was the result of his wo rk. The Office of Judges found that the autopsy listed the cause of death as hypertension and arterioscl erotic heart disease.

Statements taken from Ms. Rucki and Ms. Brow n, who were with Mr. Rose on the house call prior to his death, indica te that he exerted sign ificant physical effort while responding to the EMS call. The activities included walking up and down steep, uneven stairs multiple times and loading and unloading the patient. The Office of Judges further found that Mr. Rose’s treating physician opined that his job duties contributed to his sudden cardiac death. Dr. Jin, on the other hand, found that physical ac tivity has little eff ect on sudden cardiac deat h. The Office of Judges concluded that given the record as a whole a nd Dr. Comerci’s personal knowledge of Mr. Rose as his family physician, it was just as likely as not that Mr. Rose’s job duties, including emotional and physical exertion, were material, c ontributing factors in his death. Dr. Comerci’s opinion was determined to be of equal evidentiary weight as Dr. Jin’s file review given that he had treated Mr. Rose for years and Dr. Jin neve r examined him. The Board of Review adopted the findings of fact and conclusi ons of law of the Office of Judges and affirmed its Order on January 31, 2018.

After review, we agree with the reasoning an d conclusions of the Office of Judges as affirmed by the Board of Review. It cannot be said that the Of fice of Judges was clearly wrong in its determination that the opi nions of Drs. Jin and Comerci we re of equal evidentiary weight.

The evidence of record indicates Mr. Rose had an exceptionally stre nuous EMS call immediately prior to his death and it is ju st as likely as not that the physical and emotional exertion

contributed to his s udden cardiac death.

For the foregoing reasons, we find that the deci sion of the Board of Review is not in clear violation of any constitutional or statutory provision, nor is it clearly the result of erroneous conclusions of law, nor is it based upon a materi al misstatement or mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is affirmed.

Affirmed.

ISSUED: May 29, 2018

CONCURRED IN BY: Chief Justice Margaret L. Workman

Justice Robin J. Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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