MCMECHEN VOLUNTEER FIRE DEPARTMENT, INC., Employer Below, Petitioner
JEANNETTE ROSE, WIDOW OF GARRY ROSE, Claimant Below, Respondent
Appeal No. 2052094 (Claim No. 2015025832)
McMechen Volunteer Fire Department, Inc., by Daniel Murdock,
its attorney, appeals the decision of the West Virginia
Workers' Compensation Board of Review. Jeannette Rose,
widow of Garry Rose, by Jeffrey Kessler, its attorney, filed
a timely response.
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
Order was affirmed by the Board of Review on January 31,
2018. The Court has carefully reviewed the records, written
arguments, and appendices contained in the briefs, and the
case is mature for consideration.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
is appropriate under Rule 21 of the Rules of Appellate
Rose, a firefighter and EMT, died in the course of his
employment on February 6, 2015. A treatment note from Ohio
Valley Medical Center that day indicates Mr. Rose, who was
sixty-seven, was performing his duties as an EMT when he
brought a patient to the emergency room. While there, Mr.
Rose collapsed, was unable to be revived, and passed away.
The clinical impression was cardiac arrest.
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,
carried 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
ambulance. 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 dispatched in the early
hours of February 5, 2016, to assist with a patient. Ms.
Rucki stated that she was about four feet from Mr. Rose when
he collapsed. Though cardiopulmonary resuscitation was
immediately started, Mr. Rose did not respond and was
Brown also gave a statement regarding 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 and 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.
Rose were called to the house of an unresponsive male on
February 5, 2016. They loaded the patient into the ambulance
and transported him to the emergency room. While there, Mr.
Rose collapsed and ultimately died.
death certificate lists the cause of death as hypertension
and arteriosclerotic heart disease. On March 31, 2015, a
report 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 cholesterol, seizures, and a family
history of heart attacks. Mr. Rose collapsed at work and
after forty minutes of cardiopulmonary resuscitation, was
pronounced dead. The autopsy showed hypertension and
arteriosclerotic heart disease as well as adrenal cortical
adenoma. Dr. DelTondo opined that Mr. Rose died due to
hypertensive and arteriosclerotic heart disease. The manner
of death was listed as natural.
19, 2015, James Comerci, M.D., Mr. Rose's family
physician, completed a report opining that Mr. Rose's
physical and emotional exertion during his job duties as an
EMT were directly related to his death. He asserted that the
activity of transporting the patient contributed to the
sudden cardiovascular event.
Rucki testified in a deposition on December 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, and two police
officers carried him down a large number of stairs. She
stated that Mr. Rose carried the bulk of the weight. After
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 feet 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 testified 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 exhausted and sweating by
the time it was finished, as was Mr. Rose. She stated that it
was a high exertion, high stress, and high anxiety transport
because the patient was unresponsive and seizing and they had
to move as quickly as possible 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 strenuous part of the job.
Ms. Rucki stated that it probably takes five to ten minutes
for her blood pressure and pulse to calm down after a
transport. While she was waiting for paper work, 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.
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 arrived at a call with Mr. Rose.
When they got there, they realized the patient was completely
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 gentleman and performed the bulk of the lifting
when possible, including when they arrived at the emergency
room early that morning.
Comerci testified in a deposition on November 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 that 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 surgery 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 pulmonary
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 led to
hypotension, and it is very common for such an event to cause
March 9, 2017, file review, ChuanFang Jin, M.D., opined that
Mr. Rose's sudden cardiac death was caused by severe
coronary artery 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 autopsy report that the cardiac 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 arrhythmia 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 conclusion
overstates the effect of exertion on the heart. The autopsy
showed no evidence of heart attack, and Mr. Rose's
cardiac event was most likely caused by arrhythmia, which has
been found as the cause in a vast majority of sudden cardiac
deaths. She stated that the majority of cardiac deaths occur
at rest, not during or right after exertion.
claims administrator denied Mrs. Rose's request for
dependent's benefits on March 23, 2015. The Office of
Judges reversed the decision and granted dependent's
benefits in its June 23, 2017, Order. It found that Mr. Rose
was in the course of his employment when he died. The
question to be answered was whether the death was the result
of his work. The Office of Judges found that the autopsy
listed the cause of death as hypertension and
arteriosclerotic heart disease. Statements taken from Ms.
Rucki and Ms. Brown, who were with Mr. Rose on the house call
prior to his death, indicate that he exerted significant
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 activity has little effect on sudden cardiac death.
The Office of Judges concluded that given the record as a
whole and 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, contributing ...