June 02, 2014 BY Def Admin
Getting To The "Heart" Of The Matter: Effective Investigation OF Heart Attacks, Stroke, and Resulting Death Claims
Every on-the-job accident needs to be promptly and thoroughly investigated. However, this is especially true in the case of heart attacks, strokes, or deaths resulting from either. Effective investigation of these claims is crucial to preparing for potential litigation, and may help to limit liability or, in some cases, avoid it altogether.
A. Heart Attack and Stroke Injuries
Out of the gate, you first need to assess what kind of condition you are dealing with. Do not jump to conclusions about compensability just because a heart attack or stroke may have occurred at work, or had its onset there. Only certain types of cardiovascular or cerebrovascular conditions constitute “injuries” under the Georgia Workers’ Compensation Act, and there is a clear distinction between true heart attacks and/or strokes, and other similar conditions that cause nothing more than temporary symptoms or pain. Carter v. Kansas City Fire and Marine Insurance Co., 138 Ga. App. 601 (1976). A heart condition where there is temporary pain but no damage to the heart muscle is known as angina pectoris. This alone does not amount to a compensable injury under the Act. A “true heart attack” (myocardial infarction) requires medical evidence of something beyond just pain, specifically deterioration or damage to the heart tissue.
A similar distinction holds true for stroke cases. There are two types of strokes, ischemic (obstruction of a blood vessel) and hemorrhagic (rupturing of a blood vessel). Both cause an interruption of blood flow that can result in damage to parts the brain, which is diagnosed by way of an MRI or CT scan, and may constitute “an injury.” On the other hand, a transient ischemic attack “TIA,” which is a temporary blockage of the artery, causes many of the same symptoms as a stroke, but typically resolves within hours. In those cases, because there is no resulting long term damage, it can be argued that TIA does not constitute an injury under the Act. Bear in mind though, even angina or TIA could evolve into an injury if it ends up resulting in surgery.
Establishing the injury is only the first step. As with any workers’ compensation claim, the next question is whether the injury arose out of and occurred in the course of employment. This burden lies with the claimant, and it is no different with heart attack or stroke cases. In fact, with regard to heart attack and stroke cases, the burden is actually elevated. O.C.G.A. § 34-9-1(4) specifically excludes heart disease and strokes as compensable “injuries,” unless the claimant can show by a “preponderance of competent and credible evidence” that the condition is attributable to the performance of his or her usual job duties. And pursuant to a 1996 amendment, that standard can only be met with medical evidence.
B. Death Presumption
In some cases the employee dies at work. It is well established that if an employee’s death is unexplained, and the employee is “found dead in a place where he might reasonably have been expected to be in the performance of his job duties,” there is a rebuttable presumption that the death arose out of the deceased employee’s job. Odom v. Transamerica Ins. Group, 148 Ga. App 156 (1978). This presumption also holds true where an employee is found unconscious, and remains unconscious until death. General Accident Fire and Life Ins. Co. v. Sturgis, 136 Ga. App. 260 (1975). The practical justification for the rule is that the death itself has removed the only possible witness who could prove a causal connection to the job, so fairness to the dependents suggests some softening of the rule requiring claimants to provide affirmative proof of each element of compensability.
To avoid the death presumption, the employer must show that the employee’s death is not “unexplained.” Prior to 1982, that required nothing more than explaining the “cause of death.” However, inZamora v. Coffee General Hospital, the Georgia Court of Appeals held that in light of modern forensic capabilities, it is inevitable that the immediate cause of death will be determined in almost every case, within a reasonable degree of medical certainty, which makes the well established death presumption more or less impractical. 162 Ga. App. 82 (1982). Therefore, the court went on to rule that in order for an employer to avoid the death presumption the focus is not on explaining the “immediate cause” of death (ie. stroke), but rather the “precipitating cause” must be explained (the chain of events that led to the stroke). In 2008, the presumption was again expanded in Keystone Automotive v. Hall, and now requires that even if there is medical evidence to suggest “the most likely” explanation for the precipitating cause of death, the presumption applies unless the employer can show “exactly” what led to the death. 292 Ga. App. 645 (2008).
The take-away here is that the death presumption only arises when the employee’s death is unexplained. If the employer can show what caused the employee’s death, the burden would remain on the claimant to show that the condition constituted an injury that arose out of his or her job duties. As such, proper investigation is crucial.
C. Effective Investigation Tips
When investigating these types of work injuries, time is of the essence. Right away start by interviewing the witnesses to find out exactly what happened. Document everything the employee was doing at the time of the accident, including what was said, whether there were any dangerous conditions present (chemicals, gases, etc), the temperature where the accident occurred (extreme heat or cold), level of physical exertion, and what the employee’s job duties entailed. Also be sure to ask about any symptoms the employee may have complained of prior to the accident, specifically chest pain, shortness of breath, dizziness, anxiety, or “heartburn.” The sooner this information is recorded the better, before the details are forgotten or witnesses discuss the accident amongst themselves and confuse the facts, even if it means calling employees at their homes after hours.
Additionally, if you do not already have one, and the employee is capable of signing one, get a medical release as soon as possible and obtain the initial medical reports from the emergency room. If possible, go ahead and send an employer representative to the hospital to speak with the employee and the doctor. Get the results of any EKG or imaging studies that were done at the hospital, and find out the employee’s prognosis from the doctor and whether surgery may be needed. You will also want to pinpoint exactly when the condition began, to verify whether it might have started before work. In addition to witness accounts of the accident, tests results from the hospital showing cardiac serum enzyme levels can be used to approximate the time of onset, within hours.
Beyond obtaining statements and current medical evidence, you will also want to try to establish whether the employee ever experienced similar symptoms in the past, if he ever treated for a similar condition, if he has any prior diagnoses or disorders, any medications he is taking, and (assuming he is not represented by counsel) you may want to ask the employee what he thinks caused the attack. His response could guide your investigation further. Also, go ahead and request the medical records from the employee’s primary care physician and/or cardiologist, to evaluate the employee’s medical history, family history, and prior treatment.
Next, look into the potential risk factors that may have contributed to the accident. Talk to the employee’s friends at work, review the employment application and post hire medical questionnaire (if they exist), and talk to any supervisors about the employee’s job duties and work hours. Examine the work materials being used around the time of accident, and assess whether proper safety equipment was provided and used.
In addition to the work-related risk factors, there is a wealth of case law on the non work-related factors as well, including: diabetes, smoking or tobacco use, race, age, obesity, hypertension, high cholesterol, family history, gender, diet, and drug use. Other factors such as stress (inside and outside of work), sleep apnea, thyroid conditions, anemia, or extreme temperature variations have also been found to increase the risk for heart attacks and strokes. Finally, ask around to see if you can find out what the employee had to eat that day, whether he drinks a lot of caffeine or energy drinks, and make sure to request a post accident drug screen.
Given the number of factors that can impact heart attack and stroke cases, proper investigation is essential to effectively defending them. The sooner that information can be documented, the better. Do not make the mistake of overlooking symptoms which at first glance appear to be minor, for instance chest pain or shortness of breath, because what may seem like a small issue at first could be the first signs of a much more serious condition. The focus of these investigations should go beyond the mere details of the accident and medical treatment, to address work conditions, job duties, and even the employee’s personal life.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley