The Manitowoc Co., Inc. and Sentry Insurance, Petitioners
Workers' Compensation Appeal Board (Cowan), Respondent
Submitted: June 28, 2013
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
ROCHELLE S. FRIEDMAN, Senior Judge
The Manitowoc Company, Inc., and Sentry Insurance (together, Employer) petition for review of the February 27, 2013, order of the Workers' Compensation Appeal Board (WCAB) affirming the decision of a workers' compensation judge (WCJ) to grant the fatal claim petition filed by Colt Cowan (Claimant). We affirm.
On August 31, 2010, Claimant filed a fatal claim petition under section 301(c)(1) of the Workers' Compensation Act (Act) alleging that his father, Jeffrey Cowan (Father), fell from a crane platform at work and later died as a result of the injuries he sustained from the fall. In his petition, Claimant sought dependent's benefits and funeral expenses. Employer filed an answer denying the material allegations in the petition but stipulating to Claimant's dependency.
On the morning of January 4, 2010, Father and co-worker Jerry Harmon were working on an elevated crane platform without harnesses. The platform was approximately six feet from the ground and had no handrails. While in a crouched position, Father said, "Hold it. Wait a minute." Harmon saw Father's eyes roll back, and Father fell off the platform, striking his head on the floor. Harmon testified that Father went limp and did not try to catch his fall. Within seconds of the fall, Father began turning blue and blood was coming out of his mouth. (WCJ's Findings of Fact, Nos. 3-4, 6-7, 11.)
Andy Keeseman, a certified emergency medical technician and Employer's first responder, rushed to the scene. When Keeseman arrived, Father was breathing slowly and had a faint pulse. Father did not respond to verbal stimuli but responded to a sternum rub. Father soon stopped breathing. Keeseman administered rescue breathing and chest compressions with the assistance of Kyle Hutchins.Father began agonal respirations. The paramedics arrived, intubated Father, and transported him to the hospital. (WCJ's Findings of Fact, Nos. 18-26, 28-29.)
On January 10, 2010, diagnostic tests revealed that Father was brain dead, and he was disconnected from life support. The autopsy report stated that the cause of Father's death was cardiac dysrhythmia due to mitral valve prolapse. (WCJ's Findings of Fact, Nos. 52-54.)
In support of his petition, Claimant presented the deposition and live testimony of Thomas R. Stoner, D.O., who is board-certified in internal medicine. Dr. Stoner explained that he could not be medically certain about Father's state of consciousness at the time of the fall because Father was not hooked up to any monitors. (N.T., 10/4/11, at 20, 57.) Dr. Stoner concluded, however, based on the observations of the multiple eyewitnesses, that Father did not experience cardiac arrest at the time of the fall "because once on the ground he clearly had a pulse and was breathing and not agonal." (Stoner Report, 5/26/11, at 2.) Dr. Stoner further opined that Father did not die from mitral regurgitation or heart disease; rather, Father's death was the direct result of falling onto his head, which caused a closed-head injury with a massive concussion and a diffuse axonal injury, leading to anoxic brain injury and cerebral edema. (WCJ's Findings of Fact, Nos. 48, 55, 57, 62; N.T., 10/4/11, at 48-49.)
Employer presented the deposition testimony of Paul M. Shipkin, M.D., a board-certified neurologist. Dr. Shipkin testified that as the paramedics intubated Father, they saw a moderate amount of blood and a large clot in Father's hypopharynx. There was no indication, however, that Father's airway was blocked. Because Father went limp and fell without trying to catch himself, Dr. Shipkin concluded that Father lost consciousness before he fell. Based on Father's pre-existing mitral valve disease and the fact that he turned blue quickly, Dr. Shipkin testified that it was highly possible that a cardiac episode caused Father to lose consciousness. (WCJ's Findings of Fact, Nos. 66-68, 71-73.) Dr. Shipkin opined that Father's brain insult stemmed primarily from cardiac arrhythmia and secondarily "from the whack on the head when he hit the floor." (Shipkin Dep., 4/6/11, at 51.) On cross-examination, Dr. Shipkin testified that the head trauma had little impact on Father's death because it did not cause bleeding in the brain and Father would have died whether or not he struck his head. (Id. at 93-94.)
Both Dr. Stoner and Dr. Shipkin agreed that Father suffered brain death. However, Dr. Stoner disagreed with Dr. Shipkin's opinion that a cardiac event was the primary cause of Father's death because Father had no cardiac arrhythmia while he was hospitalized until he was disconnected from life support. (WCJ's Findings of Fact, Nos. 59-60, 62, 81.) Dr. Stoner noted that Father had severe mitral valve disease, but that "was [the] only significant cardiac finding." (Stoner Report, 5/26/11, at 4.) Dr. Stoner also found it significant that the autopsy report showed neither a heart attack nor coronary artery disease. (Id.) Dr. Stoner explained:
[Father] sustained more than a whack to the head. [He] fell 6 f[eet] off a crane platform and directly landed on his head onto a concrete floor sustaining a skull fracture and primary trauma-torque related midbrain hemorrhages with [a] severe concussion that affected his respirations and conscious state. [Father] tried to cling to life as his work mates assisted him and he continued to breath[e] through blood dripping down his hypopharynx around his trachea and eventual tracheal obstruction with a large blood clot and eventual hypnoxia and loss of pulse and v-fib cardiac arrest. Once his pulse was lost his brain didn't perfuse and he had resultant anoxic brain death.
Employer also presented the live testimony of Joseph Gascho, M.D., a board-certified cardiologist. Dr. Gascho determined that Father had mitral valve prolapse and mitral regurgitation. Dr. Gascho opined that Father experienced ventricular fibrillation because of the mitral valve regurgitation, which lead to his anoxic brain injury and death. According to Dr. Gascho, ventricular fibrillation does not commonly result from head trauma unless there is bleeding in the brain. Dr. Gascho concluded that Father's diffuse brain swelling and anoxic ...