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In re Worker's Compensation Benefits Claimed By Scherf

Supreme Court of Wyoming

September 23, 2015


Appeal from the District Court of Big Horn County The Honorable Robert E. Skar, Judge

Sky D Phifer of Phifer Law Office, Lander, WY. Representing Appellant

Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; and Samantha Caselli, Assistant Attorney General. Representing Appellees

Before BURKE, C.J., and HILL, [*] KITE, DAVIS, and FOX, JJ.

HILL, Justice.

[¶1] Robert Scherf died from a heart attack he suffered at work while servicing a front end loader. His widow Sharen Scherf (Claimant) applied for worker's compensation death benefits, and those benefits were denied. The Office of Administrative Hearings (OAH) upheld the denial of benefits, finding that although the Claimant had proved the required causal link between the work exertion and the heart attack, she had failed to prove that the exertion itself was unusual or abnormal for an employee servicing heavy equipment. The district court affirmed, and this appeal followed. We find the OAH order to be unsupported by substantial evidence and reverse and remand for entry of an order awarding benefits.


[¶2] Claimant presents two issues on appeal, which she states as follows:

1. Was the denial of death benefits for the Claimant as a result of the death of her husband from a coronary condition arbitrary, capricious, an abuse of discretion or contrary to law?
2. Was the denial of death benefits for the Claimant as a result of the death of her husband from a coronary unsupported by substantial evidence?


[¶3] Robert Scherf began working for Mountain Construction Company shortly after the company was formed in 1999 or 2000. Mountain Construction does road construction, primarily highway paving and crushing, throughout Wyoming. During his employment with Mountain Construction, Mr. Scherf worked in a number of positions, including as a truck driver, loader operator, and oiler. Mike Frost, president of Mountain Construction and one of its co-owners, described Mr. Scherf as one of the company's better hands.

[¶4] Although Mike Frost considered Mr. Scherf one of the company's better hands, Mountain Construction, on June 3, 2011, fired Mr. Scherf. At that time, Mr. Scherf was working as a truck driver and had had a couple of mishaps, first pulling a truck loaded with asphalt into a ditch where it became stuck and shortly thereafter failing to open the tarps on a truck before the truck was reloaded. Nearly immediately after the company fired Mr. Scherf, Mike Frost offered to rehire Mr. Scherf in the position of oiler, which is the position responsible for maintaining the heavy equipment, including fueling the equipment every night, changing oil as needed, greasing equipment, and changing air filters.

[¶5] Mr. Scherf accepted the position of oiler but requested some time off before beginning work as an oiler. In making that request, Mr. Scherf told Mr. Frost that he had not been feeling well, and he felt that this was the reason for his mistakes. Mike Frost told him it was fine to take the time he needed to heal. Mr. Scherf then began work as an oiler on Monday, June 13, 2011, at a jobsite outside Greybull, Wyoming.

[¶6] When Mr. Scherf was out of town for work, it was his routine to talk at least daily with his wife (Claimant), who was home in Lander, Wyoming. In keeping with that routine, Mr. Scherf called Claimant after he completed work on Thursday, June 16, 2011. Claimant described that conversation:

A. * * * Then he called me that Thursday, and told me that he had pulled some rib muscles. He told me that this loader he was servicing was really hard to get the panel out and put it back in. He said, I pulled some rib muscles.
Q. Did he say why it was really hard to pull out?
A. He said it was just really crusted up with mud and stuff.
Q. Did he tell you anything else about what he felt at the time that he was doing this? You said he felt like he pulled some ribs. Did he tell you how else it felt?
A. He said, I feel very nauseated and light-headed.
Q. Had he ever pulled ribs before?
A. Yes.
Q. And had he ever had a heart attack before?
A. No.
Q. So what did he tell you that he did then?
A. He said that Stu Eckhart drove in, and he had gone to Stu and asked him if he wanted him to service his vehicle. He said, well, you might as well, so he did that. Then he got in his truck and he left. He said that he felt nauseated and light-headed and he stopped on the side of the road.
Stu had started – when he seen Bob, Bob just stuck his hand out the window and told him to go on because he could see it was Stu. He stopped about two or three times he said, and then he got to the camper.
Q. Going back to when he was working on the loader and he had to open up the panel, did he say how much exertion – how hard it was?
A. It was very hard, he said, to get that out, and then he said, but mostly shoving it back in. He said that's when the pain came, when he was getting it back in.

[¶7] Claimant called Mr. Scherf the following morning, and he told her that he did not feel well and was not going to work that morning. Claimant stated he was not very coherent and hung up on her. Claimant then contacted a co-worker, who sent his daughter and grandson to check on Mr. Scherf. Mr. Scherf told them he just needed to sleep and asked that they leave. Claimant then contacted Mike Frost and asked him to check on her husband. Mr. Frost called Mr. Scherf, who told him he thought he had pulled a muscle in his chest or back and "that if everybody would just leave him alone, he could get some rest and he would be fine." Mr. Frost remained concerned so he visited Mr. Scherf in person. Mr. Frost found that Mr. Scherf looked tired and sick and did not make much sense. Mr. Frost suspected a heart attack and called an ambulance.

[¶8] Mr. Scherf was taken by ambulance to the hospital in Powell, Wyoming, where he was diagnosed with an "Acute ST elevation myocardial infarction." He was then transferred to Wyoming Medical Center in Casper, Wyoming. Mr. Scherf was treated without success at Wyoming Medical Center and died at 11:36 p.m. the evening of June 17, 2011. The cause of death was acute myocardial infarction with cardiogenic shock.

[¶9] On February 3, 2012, Claimant submitted an injury report to the Wyoming Workers' Safety and Compensation Division (Division). On March 5, 2012, the Division issued a final determination denying benefits on the grounds that the myocardial infarction was not a compensable injury and there was no indication that the work being performed by Mr. Scherf when he suffered his attack was unusual or abnormal for his job. Claimant objected, and the matter was referred to the OAH for hearing.

[¶10] In support of her claim that the work Mr. Scherf was performing when he had a heart attack directly caused the attack, Claimant submitted the expert opinion of cardiologist, John Rudoff, MD. Dr. Rudoff opined[1]:

Mr. Robert Scherf was an approximately 68-year-old man, a long-time smoker, with chronic hypertension, hyperlipidemia, and renal insufficiency. Approximately 8:30 p.m. on June 16, 2011, while doing heavy physical work for his employer, consisting of straining to open and shut an access panel while doing maintenance on a 980G Loader, he suddenly felt the abrupt onset of pain shooting through his chest. He managed to finish that work activity and a subsequent work activity. He was noted to be moving slowly.
The following morning, when his wife was unable to reach him by telephone, she called his place of employment and asked them to investigate. He was subsequently brought to Powell Valley Medical Center where he was found to be having a myocardial infarction.
He was immediately transferred by Life Flight to the Wyoming Medical Center, where he almost immediately had a syncopal event requiring cardiac resuscitation. At that time he was in cardiogenic shock and he was taken for emergency cardiac catheterization. The cardiac catheterization was done with considerable difficulty under emergency circumstances. Consideration was given to use of a balloon pump, but this could not be placed because of a large abdominal aortic aneurysm (which had not ruptured). The proximal left anterior descending coronary artery was chronically occluded with right to left collateral flow. The interventional cardiologist was able only to open one diagonal branch. After the procedure he was returned to the intensive care unit, where he subsequently died from cardiogenic shock.
There is no reasonable doubt that this patient died of an acute myocardial infarction. This is based on the presentation of his symptoms, the electrocardiograms, the troponin abnormalities, the findings at angiography, his hemodynamics, and his ultimate outcome. This is all mainstream cardiology, and is a well described and well understood course of acute myocardial infarction with cardiogenic shock. The mortality rate of cardiogenic shock is extremely severe, and even in the best of circumstances approaches 50%.
There is also no reasonable doubt that this myocardial infarction began while he was at work on June 16, 2011. Based upon the information presented in a narrative and also in the admitting dictation from Powell Valley Health Care, his presentation of an acute myocardial infarction was completely typical. This includes the acute onset of substernal chest pain described as beginning approximately 8:30 p.m., with radiation into the right arm as far as the elbow. Associated symptoms included diaphoresis, dizziness, and nausea. This is indeed a perfectly typical presentation of a myocardial infarction. This is particularly evident in the setting of his being a high risk individual, with ongoing heavy smoking, hypertension, and hyperlipidemia.
Furthermore, it is also my considered opinion, based upon my experience as a cardiologist with approximately 25 years' experience with many cases of acute myocardial infarction, that there was a direct material causal connection between the immediate phase of his heavy work and the onset of his acute myocardial infarction. The precise mechanism of this is presumed to be, with probably 90% likelihood, acute rupture of a non-occlusive plaque in the diagonal branch of the anterior descending. This was precipitated here by sudden exertion that was more severe than usual. The reason for the assertion of 90% likelihood is that at least that percentage of acute myocardial infarctions is caused by an acute plaque rupture.
While it is clearly true that the majority of myocardial infarctions begin at rest, that is because people generally spend more time at rest than they do in acute strenuous exertion. The mechanisms and triggers of plaque rupture are complicated and multifactorial. These generally include a combination of humoral factors such as adrenaline release, inflammation, and dynamic blood vessel tone; and also include mechanical factors such as shear forces, blood viscosity, and the degree of underlying arterial narrowing. It is quite clear, and in keeping with mainstream cardiology thinking, that in this vulnerable individual, the abrupt effort of attempting to make a repair on the equipment he was working on materially contributed to most of those factors, both mechanical and humoral.
This is very similar to the well-known "snow shoveling myocardial infarction" which has been described for many decades in cardiology. A previously asymptomatic individual does unusually heavy exertion, and abruptly develops symptoms and findings consistent with acute myocardial infarction. It is unfortunately the case that the most common initial presentation of coronary artery disease is either sudden cardiac death or acute myocardial infarction, as it was in this case.

[¶11] The OAH accepted Dr. Rudoff's opinion that there was a direct causal link between Mr. Scherf's work and his myocardial infarction. The OAH rejected the claim for benefits, however, on the ground that Claimant had not met her burden of showing that the employment stress that led to the myocardial infarction was unusual to or abnormal for the particular employment in which Mr. Scherf was engaged. The OAH concluded:

9. By way of the competent medical evidence provided by Dr. Rudoff, together with the other evidence produced, the Office is convinced that there was a direct causal connection between the condition under which Mr. Scherf was performing the maintenance of the loader on June 16, 2011, and the myocardial infarction in that the acute symptoms of the condition were clearly manifested not later than four hours after that causative exertion. W.S. § 27-14-603(b)(i) and (iii).
10. Claimant also has the burden to demonstrate that the causative exertion occurred during a period of time that the stress was clearly unusual to or abnormal for employees in that particular employment, irrespective of whether the employment stress was unusual to or abnormal for that particular employee. W.S. § 27-14-603(b)(ii). This has been identified by the Wyoming Supreme Court as an objective test which requires examination more of the job rather than the individual performing the job. Loomer v. State ex rel. Wyoming Workers' Safety and Compensation Div., 2004 WY 47, ¶ 22, 88 P.3d 1036, 1043 (Wyo. 2004).
11. Claimant's "particular employment" at the time of his cardiac event was that of oiler, or one who performs routine maintenance on, among other things, the 980G loader. Claimant argues that her husband was performing routine maintenance but that the conditions were not routine, in that the equipment was covered with mud which required an additional exertion on his part. If the paving operation was up and going, as it was on June 16, 2011, the equipment must be maintained, regardless of the muddy equipment.
12. Dr. Rudoff testified that there was a sudden exertion more severe than usual, and this has to be based upon the statement forwarded to him by Claimant's counsel which again reiterated the discussion by and between Claimant and her husband on the night of the 16th regarding the condition of the loader that day (encrusted with mud). The Office is not convinced, however, that the cardiologist demonstrated the appropriate foundation for this opinion or otherwise expressed a sound understanding of what it was that oilers or heavy equipment operators do in order to give a legitimate opinion that Mr. Scherf exerted himself in a more severe than usual manner than oilers generally experience.
13. Even if Mr. Scherf had to exert himself more than usual in opening and closing the panel to access the loader's engine oil on the day in question, while it may have been an employment stress unusual or abnormal for him, the Office is not convinced that it was clearly unusual or abnormal for oilers in this industry. This is the reason why Claimant's claim must fail.
14. The Office does not base its decision in any way upon the fact that Claimant had numerous cardiac risk factors at the time of his heart attack. The decision is based upon the fact that Claimant was doing nothing unusual or abnormal for an oiler when the heart attack occurred.

[¶12] Claimant appealed the OAH decision to the district court, and the district court affirmed. Claimant thereafter timely filed her notice of appeal to this Court.


[¶13] This Court reviews a district court's decision on an administrative decision as though the case came directly from the administrative agency. Stevens v. State ex rel. Dep't of Workforce Servs., Workers' Safety & Comp. Div., 2014 WY 153, ¶ 30, 338 P.3d 921, 928 (Wyo. 2014) (citing Hirsch v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2014 WY 61, ¶ 33, 323 P.3d 1107, 1115 (Wyo. 2014)). Our review is go verned by the Wyoming Administrative Procedure Act, which provides:

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
(i) Compel agency action unlawfully withheld or unreasonably delayed; and
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or ...

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