Norman Heiskell v. Golden City Foundry Inc.

the weight of their testimony, resolve any conflicts in the evidence, and reach its own conclusions of factual issues independent of an administrative law judge. Pavia v. Smitty's Supermarket, 118 S.W.3d 228 (Mo.App. S.D. 2003).

The ultimate determination of credibility of witnesses rests with the Commission. The Commission should take into consideration the credibility determinations made by an administrative law judge. However, the Commission is not bound to yield to an administrative law judge's findings, including those relating to credibility, and the Commission is authorized to reach its own conclusions. The law only requires the Commission to take into consideration the credibility determinations of an administrative law judge and not give those determinations deference. Kent v. Goodyear Tire \& Rubber Co., 147 S.W.3d 865 (Mo.App. W.D. 2004).

A decision made by an administrative law judge in a workers' compensation proceeding does not in any way bind the Commission and in fact, the Commission is free to disregard an administrative law judge's findings of fact. Bell v. General Motors Assembly Div., 742 S.W.2d 225 (Mo.App. E.D. 1987).

An administrative law judge is no more qualified than the Commission to weigh expert credibility from a transcript or deposition. Kent v. Goodyear Tire \& Rubber Co., 147 S.W.3d 865 (Mo.App. W.D. 2004).

Medical causation not within common knowledge or experience must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause. Selby v. Trans World Airlines, Inc., 831 S.W.2d 221 (Mo.App. W.D. 1992). Section 287.240 RSMo, provides for compensation "if the injury causes death".

II. Summary of Facts

The dependents filed the Claim for Compensation August 19, 2004. The following allegations were contained in the Claim for Compensation: October 2003, was the alleged date of accident; the description of how the injury occurred was that employee died from complications due to work related blunt trauma; and the date of death was alleged to be November 19, 2003.

The date of the hearing before the administrative law judge was May 2, 2007.

Ms. Heiskell, surviving spouse, testified that while at home approximately two weeks prior to the death of her husband, he indicated to her shortly after showering that he needed to lose some weight and she noticed that he was breathing heavy. Ms. Heiskell did not notice any physical marks on employee's body. Ms. Heiskell admitted she had no knowledge of employee sustaining a work related injury in approximately October 2003.

Ms. Heiskell further testified and described a fainting episode sustained by employee at home in the early morning hours of Sunday, November 16, 2003. On this occasion, 911 was called and employee was taken by ambulance to Barton County Memorial Hospital. Ms. Heiskell testified that employee, contra to medical advice given when seen in the emergency room at Barton County Memorial Hospital, refused admission and left the hospital on his own accord.

Ms. Heiskell further testified that the evening of November 18, 2003, employee complained to her of leg pain but he did not mention any previous injury, trauma or accident occurring.

The following morning, November 19, 2003, Ms. Heiskell served employee breakfast in the "back room", located next to the kitchen, and Ms. Heiskell returned to the kitchen. While in the kitchen, Ms. Heiskell heard the plate drop. She turned around and saw employee slumped in a chair. Ms. Heiskell placed employee on the floor and attempted to revive him while Aaron Heiskell, her then 13 year old son, called 911. Aaron Heiskell also called a neighbor, Henry Lopez, for assistance, as Henry worked with the local ambulance service. Henry Lopez arrived before the ambulance and attempted to assist the employee. By the time the ambulance unit arrived, employee had died. The ambulance transported employee to Springfield, Missouri, and

Ms. Heiskell requested an

autopsy be performed.

At trial Ms. Charissa Heiskell testified that she had one discussion with her father approximately one month or so prior to his death about a work injury. After acting on her father's request she furnished him an analgesic cream and she watched him apply it to his upper thigh. Her father told her he hurt himself at work, i.e., a pallet had hit him in the leg at work.

Aaron was 13 when his father died. He remembered he had one conversation with his father concerning a work injury. The conversation took place approximately three weeks before he died. His father was rubbing a sports analgesic cream on his stomach and his father told him he was messing with a pallet and it started to fall and it "landed on his lower abdominal - - on his leg". Aaron further testified he noticed a hitch in his father's leg one week before he died. Aaron additionally recounted his father falling unconscious on November 16, 2003, and being transported to Barton County Memorial Hospital where his father later checked himself out that same day.

Mr. Norman Heiskell, Sr., was the father of the employee. He testified by deposition he was aware of an injury approximately 30 days or more preceding the death of his son. He observed his son walking with a limp one day, although he cannot recall which leg. He talked to his son concerning his limp and his son indicated to him he was "moving or loading something" at work and "something fell off of something and dropped and hit him in the leg". He testified his son told him it weighed approximately 500 pounds.

George V. Nichols, an acquaintance of employee, saw employee limping one day and inquired about his condition. Employee indicated to Mr. Nichols that he was "acting stupid and hurt himself a little".

Mr. Peterson and employee were co-owners of the business. Deceased was a first cousin of Mr. Peterson and they were partners for 13 years preceding the death of employee. Prior to employee's death on November 19, 2003, Mr. Peterson was unaware of any injury. Mr. Peterson never noticed any evidence of an injury. After employee sustained the fainting episode at home on Sunday, November 16, 2003, and after employee discharged himself from Barton County Memorial Hospital contra to all medical advice, employee came to work Monday, November 17, 2003. Employee told Mr. Peterson he needed to get back on his medication for diabetes and there was absolutely no mention of any work injury. Employee further volunteered that he had been "binging", eating snacks at midnight and not taking care of himself.

Dr. Koprivica testified at the request of the dependents of the employee. Dr. Koprivica is board certified in emergency medicine and occupational medicine. Dr. Koprivica performed a medical records review of the following documents: the certificate of death of employee; the autopsy report from Greene County Medical Examiner; a copy of the EMS trip ticket addendum sheet; records from Barton County Memorial Hospital; records of Dr. Christiansen; and a copy of the deposition testimony of Norman Heiskell, Sr., dated February 21, 2005.

The conclusions of Dr. Koprivica were as follows: the direct cause of death of the employee was the development of pulmonary emboli. Based on the deposition testimony of employee's father, Dr. Koprivica was of the opinion that the prevailing factor in the development of deep venous thrombosis and subsequent pulmonary embolism was a traumatic injury approximately 30 days preceding his death. And it was his opinion within a reasonable degree of

medical certainty that employee's death arose as a direct and probable consequence of an injury sustained at work approximately 30 days prior to his death.

At the request of employer/insurer, Dr. Boulware performed a medical records review of employee. Dr. Boulware reviewed the autopsy report, emergency room and EMS reports and the treating records of employee's primary care physician, Dr. Christiansen. Dr. Boulware is board certified in internal medicine and experienced in treating deep venous thrombosis and pulmonary embolus.

Dr. Boulware was of the opinion that the most likely cause of death was due to a pulmonary emboli but the cause of the pulmonary emboli was unclear. Dr. Boulware noted from the autopsy report that the emboli were multiple and of varying ages. Dr. Boulware discussed several risk factors which were possible causes of employee's pulmonary emboli, including obesity, male sex, diabetes, heart failure, etc.

As to the allegation by employee's dependents that an injury occurring to employee's leg approximately 30 days preceding his death, while at work, resulted in a deep vein thrombosis which embolized to the lung, Dr. Boulware indicated that there were no significant abnormalities to the patient's extremities noted in the autopsy report and the follow-up visit of November 17, 2003 with his primary care physician, Dr. Christiansen, was noteworthy for the absence of any leg pain or swelling and no mention of any alleged work related injury. Dr. Boulware stated there was no medical evidence of deep ve