Opinion
Anaheim District Office
OPINION AND ORDER DENYING PETITION FOR RECONSIDERATION
ANNE SCHMITZ, DEPUTY COMMISSIONER
STEFANIE ASHTON WORKERS' COMPENSATION JUDGE
STEFANIE ASHTON WORKERS’ COMPENSATION JUDGE
We have considered the allegations of the Petition for Reconsideration and the contents of the Report and the Opinion on Decision of the workers’ compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ’s Report and Opinion on Decision, both of which we adopt and incorporate, we will deny reconsideration.
We are persuaded that the WCJ’s factual determinations are supported by substantial evidence in light of the entire record. (Lab. Code, § 5952(d); Lamb v. Workmen’s Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen’s Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen’s Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].) Therefore, we will not disturb the WCJ’s decision.
For the foregoing reasons,
IT IS ORDERED that the Petition for Reconsideration is DENIED.
WORKERS’ COMPENSATION APPEALS BOARD
I CONCUR, CRAIG SNELLINGS, COMMISSIONER, JOSé H. RAZO, COMMISSIONER
SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.
DEBORAH JOHNSON
LAW OFFICES OF HUGH W. GREGG
THOMAS LAW
MED LEGAL PHOTOCOPY
STATE COMPENSATION INSURANCE FUND
REPORT AND RECOMMENDATION ON PETITION FOR RECONSIDERATION
I. INTRODUCTION
Date of Alleged Injury: August 7, 2014
Parts of Body Alleged: Heart resulting in death
Identity of Petitioner: Defendant
Timeliness: The petition was timely filed on August 3, 2021
Verification: The petition was verified
Date of Orders: July 15, 2021
Petitioner’s Contentions: Petitioner contends the WCJ erred in finding injury AOE/COE.
II. STATEMENT OF FACTS
On August 7, 2014 at 8:00 a.m. applicant/decedent Richard Johnson commenced his shift as a tow truck driver for the defendant employer. Applicant/decedent’s normal work shift was 8:00 a.m. to 5:00 p.m. five days a week, remaining on call during the night on the days that he worked. (EAMS Doc ID 36483948 at 5:23-7:1.) During the day in question, applicant/decedent had no tows, but moved a car with a forklift and put dry-sweep on an oil spill approximately 40’ in length. (EAMS Doc ID’s 36483948, 36483949 and 74171713.) Applicant/decedent also spent part of his day cleaning the yard of debris. (EAMS Doc ID 36483948 at 18:12-19; EAMS Doc ID 36483949 at 6:1- 9.) At approximately 3:15 p.m., applicant/decedent was found unresponsive in the driver’s seat of his tow truck which was parked under an awning that was running with the air-conditioning on. (EAMS Doc ID 36732011.) Emergency services were called to the scene and Mr. Johnson was pronounced dead at 3:45 p.m. An autopsy performed by the Riverside County Sheriff’s Department lists the cause of death as “Atherosclerotic and Hypertensive Heart Disease.” (EAMS Doc ID 36732011.)
The matter was submitted on May 19, 2021 on the issue of injury AOE/COE. On July 15, 2021, this trier of fact issued her Opinion on Decision and Findings and Award finding that applicant/decedent sustained injury arising out of and occurring in the course of employment August 7, 2014 resulting in his death. It is from this threshold finding that the Petition for Reconsideration was filed contending that the applicant/decedent did not meet his burden of proving injury AOE/COE and that the WCJ erred in finding that he did so.
III. DISCUSSION
The parties presented the issue of injury AOE/COE to PQME Paul Grodon, M.D. The case was originally tried before Judge Tien Nguyen who vacated submission and ordered development of the record having found Dr. Grodon’s opinions lacking. Additional discovery was conducted and the matter was again submitted for decision on the issue of AOE/COE. It is undisputed that Mr. Johnson was within the course of his employment at the time of his death because he died within the time and space limits of his employment; but whether his death arose out of his employment was the central issue presented to the Court.
The unrebutted evidence established that:
1) While the applicant/decedent was in the process of moving a vehicle across the yard with a forklift, he received a call at 2:07 p.m. by president of the company Michael Pulcheon, who was leaving for lunch, asking that upon conclusion of that task, applicant/decedent put dry sweep on an oil spill that was roughly 40’ in length. (EAMS Doc ID 74171713 at 3:3-4; 4:6- 7; 5:7-8.);
2) Mr. Pulcheon was not on the premises when applicant/decedent finished moving the vehicle. (EAMS Doc ID 74171713 at 3:10-11, 3:23-24, 4:1-2, 4:8-9.)
3) Mr. Pulcheon was not on the premises when the applicant/decedent put dry sweep on the oil spill. (EAMS Doc ID 74171713 at 3:10-11, 3:23-24, 4:1-2, 4:8-9.)
4) Mr. Pulcheon does not know how long it took applicant/decedent to complete the tasks of moving the vehicle and placing the dry sweep on the oil spill. (EAMS Doc ID 74171713 at 3:12-13; 4:1-2, 4:8-9.)
5) Applicant/decedent performed the jobs he had been asked to complete. (EAMS Doc ID 74171713 at 4:4-5.)
6) Applicant/decedent weighed 314 pounds and for him, the activities he performed that day can be considered significant. (EAMS Doc ID 36524799 at 21:4-7; EAMS Doc ID 36524887 at 38:18-24.);
7) Applicant/decedent did not respond to a call at 3:15 p.m. which subsequently lead to his discovery by Ms. Romano, the company secretary. (EAMS Doc ID 36483949 at 8-11; EAMS Doc ID 36732011.)
8) Applicant/decedent was unresponsive to lifesaving measures and was pronounced dead at the scene at 3:45 p.m. (EAMS Doc ID 36732011.)
9) If the physical activity performed by applicant/decedent that day at work occurred proximal to his ventricular fibrillation, there is a nexus between the activity and the collapse. (EAMS Doc ID 36524799 at 23:1-3; EAMS Doc ID 36524887 at 27:3-5; 39:5-10.)
What remained unclear is exactly what time the applicant/decedent completed his physical tasks and exactly what time he experienced the ventricular fibrillation that lead to his sudden death. Because the only direct witness is deceased, those questions can only be answered by circumstantial evidence since direct evidence is obviously unavailable.
“‘Circumstantial evidence is sufficient to support an award of the commission, and it may be based upon the reasonable inferences that arise from the reasonable probabilities flowing from the evidence; neither absolute certainty nor demonstration is required.’” (Guerra v. Workers’ Compensation Appeals Board (2016) 246 Cal.App.4th 1301, 1307 citing to Pac. Emp. Ins. Co. v. Ind. Acc. Com. (1942) 19 Cal.2d 622, 629.) “‘[C]ertainty is not the test of the admissibility of evidence… . The test is whether the inferences which it is alleged may be drawn from proffered evidence might be drawn by a reasonable mind and whether it is relevant to the issues to be determined by the jury.’” (Guerra supra at 1308 citing to People ex rel. Dept. of Public Works v. Graziadio (1964) 231 Cal.App.2d 525, 530–531.) An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.” (Evidence Code Section 600, subd. (b).)
It is undisputed that decedent performed physical labor for his employer before he was found non- responsive on his employer’s premises. Further, the medical evidence established that applicant/decedent’s work activities on the day in question would have had a nexus to his ventricular fibrillation resulting in his sudden death so long as the activities were proximate to said death. Defendant seems to suggest that the burden of proof requires that applicant/decedent establish with certainty the timeline of the physical activity in question and the actual time of the ventricular fibrillation. What the defendant appears to have overlooked, however, is that certainty is not the test of a reasonable inference. Rather, the inquiry is whether the inference is one that may be drawn by a reasonable mind. (People ex rel. Dept. of Public Works supra.)
President of the defendant employer Michael Pulcheon was deposed on January 10, 2020, six and half years after the incident. Mr. Pulcheon was also called to testify at trial. Mr. Pulcheon testified in great detail as to the physicality of the applicant/decedent’s job and the tasks applicant/decedent had been asked to complete that day. Mr. Pulcheon, admitted that he was not present at the yard when the tasks were performed and he admitted that he does not know how long the applicant/decedent actually took to complete the tasks. (EAMS Doc ID 74171713 at 3:10-11, 3:12- 13, 3:23-24, 4:1-2, 4:8-9.) Despite this, Mr. Pulcheon provided his estimate as to how long each task should have taken the applicant/decedent to complete. (EAMS Doc ID 74171713.)
It the estimated timeline of events provided by Mr. Pulcheon upon which the petitioner relies to “prove” that applicant/decedent could not have suffered his ventricular fibrillation proximal to his physical activities. However, Mr. Pulcheon’s estimates were based entirely on speculation and without any firsthand knowledge. Further, Mr. Pulcheon admitted to not knowing how long applicant/decedent actually took to complete his physical tasks. As a result, this trier of fact did not find Mr. Pulcheon’s testimony persuasive or probative of the issue.
The secretary at the defendant employer Stacie Romano was also deposed on January 10, 2020. It was Ms. Romano who found applicant/decedent unresponsive in his truck after applicant/decedent did not respond to a telephone call that was placed at 3:15 p.m. Ms. Romano did not see the applicant/decedent complete his tasks and does not know how long applicant/decedent had been nonresponsive in his truck at the time she found him. (EAMS Doc ID 36483949 at 6:18-23, 8-11.) Ms. Romano’s testimony likewise did nothing to narrow down the timeline of events.
The petitioner argues that this trier of fact unnecessarily shifted the burden of proof to the defendant in contravention of the law. That is not what this WCJ did. This WCJ determined that based on the evidence and all reasonable inferences to be drawn therefrom, applicant/decedent successfully met the threshold burden of proof as to AOE/COE in conformance with Labor Code Sections 5705 and 3202.5 which the petitioner failed to rebut. Although there is no way of knowing for certain how long it took applicant/decedent to perform the job duties he was assigned, it is reasonable to infer that applicant/decedent performed those physical activities, considered significant due to his body habitus, proximate to his ventricular fibrillation.
“‘It is not incumbent upon a plaintiff to show that an inference in his favor is the only one that may be reasonably drawn from the evidence; he need only show that the material fact to be proved may logically and reasonably be inferred from the circumstantial evidence. [Citations.] … The mere fact that other inferences adverse to plaintiff might be drawn does not render the inference favorable to plaintiff too conjectural or speculative for consideration [by the jury].’ [Citations.]” (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 121 [184 Cal. Rptr. 891, 649 P.2d 224].)
IV. CONCLUSION
There are principles of substantial justice and liberality of statutory interpretation that are constitutionally and statutorily prescribed in a workers’ compensation case. (Labor Code Section 3202.) The WCAB “has broad equitable powers with respect to matters within its jurisdiction. [Citation].” (Truck Ins. Exchange v. Workers’ Comp. Appeals Bd. (Kwok) (2016) 2 Cal.App.5th 394, 401.) “Labor Code section 3202 requires the courts to view the Workers’ Compensation Act from the standpoint of the injured worker, with the objective of securing the maximum benefits to which he or she is entitled.” (Rubalcava v. Workers’ Comp. Appeals Bd. (1990) 220 Cal.App.3d 901, 910.)
To determine whether there is any causal connection between the employment and the death, the board is bound, as are the courts, "by the fundamental principle that to effectuate the purposes of the compensation statute, all reasonable doubts as to whether an injury is compensable are to be resolved in favor of the employee." (California Comp. & Fire Co. v. Workmen's Comp. Appeals. Bd. (1968) 68 Cal.2d 157, 161.)
After a review of all of the documentary and testimonial evidence submitted along with all reasonable inferences to be drawn therefrom, and in accordance with the mandate of Labor Code Section 3202, this Court found that applicant/decedent Richard Johnson sustained injury arising out of and occurring in the course of his employment to his heart resulting in his death on August 7, 2014.
V. RECOMMENDATION
Based on the foregoing, it is respectfully requested that the petition for reconsideration be DENIED.
DATE: August 11, 2021
OPINION ON DECISION
INJURY AOE/COE
On August 7, 2014 at 8:00 a.m. applicant/decedent Richard Johnson (herein after “decedent”) commenced his shift as a tow truck driver for the defendant employer. The decedent’s normal work shift was 8:00 a.m. to 5:00 p.m. five days a week, remaining on call during the night on the days that he worked. During the day in question, the decedent had no tows, but moved a car with a forklift and put dry-sweep on an oil spill approximately 40’ in length. The evidence also points to the possibility that the decedent spent part of his day cleaning the yard of debris. At approximately 3:15 p.m., the decedent, who did not respond to a tow call, was found unresponsive in the driver’s seat of his tow truck that was running with the air-conditioning on, parked under an awning. Emergency services were called to the scene and Mr. Johnson was pronounced dead at 3:45 p.m. An autopsy performed by the Riverside County Sheriff’s Department lists the cause of death as “Atherosclerotic and Hypertensive Heart Disease.”
The parties presented the issue of injury AOE/COE to PQME Paul Grodon, M.D. The case was originally tried before Judge Tien Nguyen who vacated submission and ordered development of the record having found Dr. Grodon’s opinions lacking. Additional discovery was conducted and the matter was again submitted for decision on the issue of AOE/COE – most specifically the question of whether Mr. Johnson’s death arose out of his employment. It is undisputed that Mr. Johnson was within the course of his employment because he died within the time and space limits of his employment. But whether his death arose out of his employment was the central issue presented for decision.
PQME Dr. Grodon authored two reports and submitted to three depositions. Dr. Grodon consistently opined that while decedent may have had Atherosclerotic and Hypertensive Heart Disease, those diseases were not the cause of death because the decedent’s heart upon autopsy revealed no damage. Rather, Dr. Grodon determined that decedent experienced lone ventricular fibrillation resulting in his sudden death. The question then becomes, what caused the ventricular fibrillation? Unable to initially answer that pivotal question, the parties were ordered by Judge Nguyen to provide to Dr. Grodon a more definitive timeline of decedent’s activities at work and the weather conditions on that date.
President of the defendant employer Michael Pulcheon was deposed on January 10, 2020, six and a half years after the incident. Mr. Pulcheon testified that on the date of his death, decedent had been cleaning the yard of trash and was moving a car around in preparation for an inspection. Mr. Pulcheon confirmed that decedent had not performed any tows that day and appeared in good spirits. Around the lunch hour (at various points in the deposition either between 11:30 a.m. – noon or 11:30 a.m. to 12:30 p.m.) applicant was moving a car with a forklift across the yard when Mr. Pulcheon left for lunch. Noticing that the forklift had left an oil slick, Mr. Pulcheon called the decedent as he was leaving for lunch and asked that decedent place dry sweep on the slick when done with the forklift. The slick was estimated to be 40’ in length.
Mr. Pulcheon testified that he had been at lunch for approximately 30-40 minutes when he got the call of a medical emergency involving the decedent. Mr. Pulcheon returned to the tow yard where he spoke with investigators and showed them his phone in order to get an accurate timeline of events. Mr. Pulcheon also went into great detail discussing the physicality of the decedent’s job and the tasks he was asked to complete that day in addition to providing his estimate on how long each task should have taken the decedent to complete. Mr. Pulcheon admitted however that he was not present at the yard when the tasks were performed and he therefore does not know how long the decedent actually took completing the tasks. Mr. Pulcheon was also called by the defendant to testify at trial. His testimony at trial did not substantially deviate from his deposition testimony.
The secretary at the defendant employer Stacie Ramano was also deposed on January 10, 2020. Ms. Ramano testified that on the date in question, she believed the decedent had been working in the yard picking up car parts. The decedent was also asked to move a car with a forklift. At approximately 3:00 – 3:30 p.m. Ms. Ramano called the decedent two times attempting to reach him regarding a tow job. Unable to reach him, she looked out of her window and saw the decedent’s truck parked under an awning. She walked over to the driver’s side of the truck and saw the decedent slumped over the steering wheel. She opened the driver’s side door and noticed the decedent had a grey pallor. She tried to rouse him but was unable to do so. After getting the assistance of a co-worker, they called 911 and ran back to the decedent’s truck to await instructions from emergency personnel.
The Coroner’s Investigative Report written contemporaneous to Mr. Johnson’s death, has a slightly different timeline and a slightly different version of the events. Per the Coroner’s Investigative Report, Ms. Ramano called the decedent at 1515 (3:15 p.m.) that day. Unable to reach him, she called a co-worker to inquire as to the decedent’s whereabouts as she was unable to see him from her vantage point. She was informed that the decedent was parked under an awning in the front of her building. Ms. Ramano left her building and approached the driver’s side of decedent’s tow truck. Stepping on the running board, Ms. Ramano peered into the driver’s side window at which time she saw that the decedent was slumped to the right. She moved to the passenger side, opened the door and noticed that the decedent was unresponsive. She summoned assistance from a co-worker who called 911.
Per the Coroner’s Investigative Report, Mr. Pulcheon called the decedent at 1407 (2:07 p.m.) that day and asked him to throw some dirt on oil spots on the driveway. After he was finished, per Mr. Pulcheon, the decedent went to sit in his tow truck under the awning.
All of this additional documentation, in addition to weather data reflecting that the high was 87 degrees on the date in question, was submitted to Dr. Grodon for review. Over the course of a supplemental report and two additional depositions, Dr. Grodon ultimately opined that while decedent had coronary disease and hypertensive disease he did not die because of those diseases. Rather, the decedent died of ventricular fibrillation for which acute stress and physical exertion were risk factors. In Dr. Grodon’s opinion, applicant’s work activities on the day in question would have had a nexus to his ventricular fibrillation resulting in his sudden death so long as the activities were proximate to said death. According to Dr. Grodon, if the applicant suffered the ventricular fibrillation within 20 minutes of concluding his physical activities, there would be an industrial nexus. Anything beyond 20 minutes and the nexus would be more difficult to establish.
Applicant raised the case of Clemmens v WCAB (1968) 33 CCC 186 for the proposition that Decedent is entitled to a presumption of industrial causation regarding his death. In Clemmens, the decedent, an electrical engineer, was found dead lying near an instrument console with his test equipment connected to the console. Medical professionals disagreed as to whether the death was caused by diabetes, or by electrocution. The Court of Appeal ultimately remanded the case back to have the trial court judge resolve the dispute between the conflicting medical opinions. Despite the holding, the Court of Appeal analyzed the proposition that under certain circumstances, it is proper to find a presumption of industrial causation. In that regard the Court of appeal stated:
“In 1 Larson Workmen’s Compensation Law, the author states (pp. 108-111):
“When an employee is found dead under circumstances indicating that the death took place within the time and space limits of the employment, in the absence of any evidence of what caused the death, most courts will indulge a presumption or inference that the death arose out of employment. The theoretical justification is similar to that for unexplained falls and other neutral harms: The occurrence of the death within the course of employment at least indicates that the employment brought deceased within the range of harm, and the cause of harm, being unknown, is neutral and not personal. The practical justification lies in the realization that, when the death itself has removed the only possible witness who could prove causal connection, fairness to the dependents suggest(s) some softening of the rule requiring claimant to provide affirmative proof of each requisite element of compensability.”” (Clemmens supra at 5.)
Additionally, the Court noted:
“Larson further states (pp. 112-113): "In many so-called unexplained-death cases, however, there are some employment or personal ingredients on which an inference one way or the other could be based. Thus, awards have been made for unwitnessed accidents in which employees have been found run over by trains or trucks, burned by gasoline, asphyxiated by gas, buried by cave-ins, and blown up by dynamite. In such cases, although no one may have seen the accident so as to be able to say why the dynamite exploded or the gasoline ignited, the character of the harm is so obviously work-related that it becomes practically impossible even to suggest a hypothetical personal explanation. Similarly, when employees have died as the result of unwitnessed falls down elevator shafts, from buildings, from boats, or from trains, a noncompensable origin is virtually inconceivable.”” (Clemmens supra at 5-6.)
Finally, the Court pointed out that:
“The rule is that when an employee at the place and in the period of his employment is injured by some neutral harm, the injury is compensable on the theory that his employment took him to the place of harm (citations).” (Clemmens supra at 6.)
Applicant argues that decedent’s death was as a result of neutral harm and per Clemmens the burden has shifted to the defendant to prove decedent’s death was unrelated to his employment. Defendant argues that reliance on Clemmens is misplaced in as much as the cause of death is known and is not neutral in nature and thus applicant must meet the requisite burden of proof.
The language used for analysis in Clemmens is applicable here. Here, like in Clemmens, the character of the harm is neither obviously work related nor obviously idiopathic. The only facts connecting the death to work is that decedent was found dead at work. At the same time, the only facts demonstrating an idiopathic or non-industrial cause, is Dr. Grodon’s opinion on the cause and timing of death. Thus there are multiple possible causative factors which are either personal in nature (unexplained ventricular fibrillation) or work related (acute stress and physical exertion resulting in ventricular fibrillation). Since the presumption, per Clemmens, applies only when the harm is neutral, it is found that the presumption cannot apply here.
Labor Code section 5705 provides that the burden of proof rests upon the party holding the affirmative of the issue. Labor Code section 3202.5 provides that all parties shall meet the evidentiary burden of proof on all issues by a preponderance of the evidence in order that all parties are considered equal before the law. “‘Although the employee bears the burden of proving that his injury was sustained in the course of his employment, the established legislative policy is that the Work[ers'] Compensation Act must be liberally construed in the employee's favor (Lab. Code, § 3202), and all reasonable doubts as to whether an injury arose out of employment are to be resolved in favor of the employee. [Citation.]’” (Matea v. Workers' Comp. Appeals Bd. (2006) 144 Cal.App.4th 1435, 1444.)
In this case it is undisputed that decedent performed physical labor within an hour of his having been non-responsive to the call placed by Ms. Ramano. Per Dr. Grodon, the decedent died of ventricular fibrillation for which acute stress and physical exertion were risk factors. Dr. Grodon also opined that applicant’s work activities on the day in question would have had a nexus to his ventricular fibrillation resulting in his sudden death so long as the activities were proximate to said death. Dr. Grodon deferred to this trier of fact with respect to the timeline of events and their proximity to decedent’s death. The only evidence regarding the timing of decedent’s activities that day come from the testimony of Michael Pulcheon who was deposed six and a half years after the day in question.
Quite a bit of time was spent trying to pin-down the timeline of decedent’s activities that day based on the estimates given by Mr. Pulcheon. The court did not find this testimony persuasive. Mr. Pulcheon was admittedly not on the employer’s premises when the decedent performed and completed his tasks and he therefore has no knowledge of how long it actually took the decedent to perform those jobs. Further, it is clear that Mr. Pulcheon does not have an accurate recollection of the day in question.
Mr. Pulcheon testified that he left for lunch sometime between 11:30 – 12:30 p.m. that day and called the decedent on his way out with instructions to clean the oil spill. Yet the Coroner’s Investigative Report written contemporaneous to Mr. Johnson’s death indicates that Mr. Pulcheon placed his call at 2:07 p.m. that day. Even Mr. Pulcheon concedes that the Coroner’s Investigative Report would be more accurate with respect to the timing of events. Mr. Pulcheon could not have gone to lunch sometime between 11:30 a.m. – 12:30 p.m. and placed a call to the decedent on the way out when the evidence reflects that the call was actually made at 2:07 p.m.
In resolving a conflict regarding the determination of whether there is any causal connection between the employment and the death, the board is bound, as are the courts, "by the fundamental principle that to effectuate the purposes of the compensation statute, all reasonable doubts as to whether an injury is compensable are to be resolved in favor of the employee." (California Comp. & Fire Co. v. Workmen's Comp. Appeals. Bd. (1968) 68 Cal.2d 157, 161.) Based on the above, and in accordance with the mandate of Labor Code section 3202, it was found that applicant/decedent Richard Johnson sustained injury arising out of and occurring in the course of his employment to his heart resulting in his death on August 7, 2014.
DATE: July 15, 2021