MWCC NO. 00 01504-G-8372-E-21

BONITA S. MULLETT, SURVIVING SPOUSE,
MOLLY MULLETT AND MICHAEL MULLETT,
DEPENDENTS OF
FRANK EDWARD MULLETT, DECEASED                                                                                             CLAIMANT

V.

MISSISSIPPI BAPTIST MEDICAL CENTER                                                                                           EMPLOYER

AND

THE VIRGINIA INSURANCE RECIPROCAL                                                                                             CARRIER

APPEARING FOR THE CLAIMANT:
John Griffin Jones, Esquire, Jackson, Mississippi

APPEARING FOR THE EMPLOYER AND CARRIER:
Douglas R. Duke, Esquire, Jackson, Mississippi

On May 10,2000, the claimants filed a petition to controvert alleging that on January 12, 2000, Frank Edward Mullett was found dead at work, having died from an apparent acute myocardial infarction. The employer and carrier denied the compensability of the death, contending that the evidence rebutted the "found dead presumption," and did not pay any workers' compensation benefits. A hearing was held in Hearing Room A at the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi, on February 26, 2001. The matter was held in abeyance after the hearing for the parties to submit memoranda of law.

1. Frank Edward uls average weekly wage on January 12,2000, was $1,115.38.

2. Frank Edward Mullett was on the employer's premises dunng his normal working hours when he died, and, thus, the rebuttable "found dead" presumption applies in this case.

The primary issue to be resolved by the Administrative Judge is whether Frank Edward Mullett's death arose out of his employment with the Mississippi Baptist Medical Center, thus entitling his surviving spouse and dependent children to death benefits pursuant to Mississippi Code Annotated § 71-3-25(1990).

Bonita Shurden Mullett, widow of Frank Edward Mullett, is a resident of Madison, Mississippi. She has lived there three and a half years. She and Frank Mullett married September 24, 1983, and continued to be married until the date of his death. She has not remarried and is not employed.

Bonita and Frank Mullett had two children, both of whom were living with their parents at the time Frank Mullett died. The children, a son, thirteen, and a daughter, ten, continue to live with their mother and attend school in Madison. The birth certificates entered into evidence show that Michael Eldon Mullett was born April 13, 1987, and Molly Kathryn Mullett was born February 8, 1991.

Mrs. Mullett testified that she met Frank in February 1983. He had completed three and half years of college but did not earn a degree. Before they met, Frank had worked for a manufacturing company in Mendenhall. After she met him, he worked for Computer World doing computer work. He subsequently went to different computer companies, bettering his position and salary each time. He had some management and sales experience. For a year he sold telephones for MCTA. Otherwise, he always worked in the computer field. Immediately before the job at the Mississippi Baptist Medical Center, Frank worked for a company in Madison where he sold, installed, and taught accounting software to companies.

In early 1997, probably about January 1997, Frank purchased a $500,000 life insurance policy. This was a few months before he started his job at the Mississippi Baptist Medical Center.

In May 1997, Frank was employed at the Mississippi Baptist Medical Center in Jackson as computer analyst, project manager, in charge of one particular computer program, the repository program. The repository program is a computer information center about patients for doctors and nurses. Frank worked on that project until the date of his death on January 12, 2000. Chris Brossette, then Becky Carruth, then Rick Caldwell, going up the chain of command, were his supervisors.

According to Mrs. Mullett, Frank had a computer at their residence so he could work on various programs for the hospital at home. When he was at home he could be paged or telephoned, then he would tie into the hospital computer system by modem and work from home if he could. If he could not solve the problem at home, he would go to the hospital.

Mrs. Mullett remembered her husband being stressed out, particularly when he had to bring his problems with the computer program home with him. Frank's supervisor, Rick Caldwell, was from a military background and was all business. He expected perfectionism in the work force, and he came down hard on Frank several times. Frank would meet with Mr. Caldwell on Wednesdays about every other week. Sometimes the meetings were pleasant and sometimes, not.

Frank was solely responsible for the repository program. He would often go to Becky Carruth and ask her for some help, telling her he could not do it all by himself. Right before Thanksgiving in 1999, in a conversation with Becky Carruth, he threatened to quit if he did not have some help.

According to Mrs. Mullett, Frank never smoked. He always engaged in a regular exercise program from the time they met in 1983. He ran and worked out with weights. He did triathalons for several years after they met. During the fall and winter months of 1999 and 2000, he did not do any running, but he worked out on the treadmill and stair master and with weights. He was 5,11" and weighed about 160 pounds. His weight did not change significantly from the time they met until the time he died.

Frank had never had any serious health problems except for some kidney stones during the summer of 1999. He usually drank two cups of coffee before he left the house in the mornings, and he ate "pretty healthy."

Sometime in early 1997, Frank began to have headaches. He consulted Dr. Bob May, family physician with the MEA Medical Clinic, who was a member of the same church as Frank and Bonita Mullett. Dr. May diagnosed Frank Mullett with high blood pressure and prescribed Diavan. The headaches stopped when Frank started taking the Diavan; at one point Dr. May changed him to a different dose of Diavan.

They obtained a blood pressure monitor from Frank's mother's home when she went to a nursing home at the end of 1997. She had had a massive stroke in October 1997 and never went home again. His mother died in February 1998, at age seventy-one. Frank and his mother were close, and her death was stressful for him. At the time of his death in January 2000, Frank was still trying to get his mother's house ready to sell. The house was paid for when his mother died, however. In late November 1999, Frank helped his sister-in- law with some problems and cosigned a note for her.

Frank would check his blood pressure every morning and evening. In early December 1999, Frank started to have headaches again, and the monitor registered that his blood pressure was "a little high." Dr. May gave him some samples of Norvasc which worked to eliminate the headaches after about three days. Frank did not complain again about headaches. He took the Norvasc only at night, continuing to take the Diavan in the morning. Frank ran out of the samples of Norvasc, however, and called Dr. May's office and left messages that he needed a prescription for Norvasc. For some reason, the clinic did not get the prescription called in. Mrs. Mullett said Dr. May had told them at church "No need to come in. If the medication works we'll call it in." It was probably a year since Frank had been to Dr. May for an office check.

When he ran out of the Norvasc samples, Frank started to take the Diavan at night again as well as in the morning. He renewed his Diavan prescription on December 17, 1999, obtaining sixty pills. He took two a day. Mrs. Mullett thought he continued to take the Diavan without interruption until his death.

Mrs. Mullett brought to the hearing the pills that Frank was taking at the time of his death. There was a Diavan refill dated December 17, 1999, with ten pills left. There were also bottles of herbal or natural remedies that Frank had purchased from a health food store in November 1999: Omega-3-9, a nutritional oil; Carnatine Co-Q-10 and B-5, amino acid and antioxidant and B-S acid; Vitamin C; Megataurine caps, amino acid; zinc lozenges; and multiple vitamins with Co-Q-10, gingko and lipoid acid. He was not taking anything else at the time he died.

Mrs. Mullett testified that in the day or so before his death, Frank did not complain but "he wasn't himself" He was concerned about not getting the Norvasc prescription. He went to the drug store once or twice and she went to the drug store another time, but the prescription was not there.

The day before his death. Frank told his wife he had had a stressful day. She said he said only that it had been a "tough day." That evening they painted their bedroom, getting ready for a new bedroom suit that was to be delivered the next day, Wednesday, January 12, 2000, what turned out to be the day of Frank's death. They painted from 6:30 until 10:00 p.m. They had moved their old furniture away the previous Saturday. They moved the furniture out on the front porch themselves, and the people to whom they gave it picked it up off the porch. The Mulletts were roughing it a few days until the new furniture arrived.  Frank did not complain of headaches or other problems at that time.

Early on the morning of the day of his death, Mrs. Mullett saw Frank standing at the kitchen counter getting ready to leave for work. He seemed a little bothered and commented that he needed to get the prescription from Dr. May. She suggested he run to Dr. May's office that day to take care of the prescription. He did not complain about a headache or a high reading on the blood pressure monitor, but his Day Timer indicated that he had called Dr. May at home that morning. She guessed Dr. May had already gone to the office.

On the day Frank died, he went into work at 7:00 a.m. Mrs. Mullett knew he had a 10:00 a.m. meeting and afterward a workout at the Baptist Fitness Center. They did not talk that morning although they left voice mail messages for each other.

Mrs. Mullett was working at Ridgecrest Baptist Church in Madison as music secretary thirty to thirty-five hours a week. She went home at lunch on January 12, 2000, to take delivery of the furniture. The telephone rang while the delivery people were there, and she did not answer it then. When she checked voice mail, she learned it was the church. She was told to come to the church and told that Frank was sick. She went to the hospital, and the associate pastor told her Frank had died.

The certificate of death which has been admitted into evidence shows that Frank Edward Mullett died of an acute myocardial infarction at 1:30 p.m. The coroner added to the death certificate in a section entitled "other significant conditions" that Frank had conditions contributing to death: "hypertension, med. history heart disease." (Exhibit 4).

After Frank's death, Bonita Mullett wrote a letter to Dr. May, and the letter, which explained that she was hurt because Dr. May did not contact her after Frank's death. In the letter, Mrs. May related Frank's difficulty about getting the prescription for the new blood pressure medicine from Dr. May's office. She wrote, in pertinent part:

If you remember correctly back before Christmas you put Frank on a different kind of blood pressure medicine at night (samples) due to headaches and some other problems he was having. You then told him that if that medication worked to call you and you would call in a prescription for him. The matter that I have been so upset about is that he called your office three different times the week before he died trying to get a prescription. The first time he called one of the nurses told him she would see that it got called in to Walgreens in Madison. He went to the drug store and it was not there. He called again, she told him again that she would see that it got called in. That time I went to the Walgreens in Madison. Again it did not get called in. The third time he called she told him he would have to come in. At this point he had been without the medicine for several days and was not feeling well. The day he died he stood at the kitchen counter and told me he did not know what to do about the medicine because he could not reach you. I told him to please keep trying.

Bob, I don't know if not having the medicine could have caused his heart attack. All I know is that I'm dealing with some hard feelings about the fact that someone dropped the ball about getting the prescription for him and now my children do not have a father.

Dr. May answered with a letter which is dated February 4, 2000, and has been admitted as part of Exhibit 10. He responded to her questions about the prescription:

Concerning the prescription I find that the records do not show the call in was approved. As a matter of fact 5 separate calls were made between 1/7/00 and 1/10/00 in an attempt to have Frank recheck at the clinic since he had not been seen in several months. We had no record as to how his blood pressure was doing.

Norval Yerger testified by undated deposition that he is a computer analyst or technical support specialist for Baptist Medical Center where he has been employed since 1985 or 1986. Beginning the first part of 1999, he worked in the same unit with Frank Mullett. Mr. Yerger said he held a similar position to Frank, and they worked together but not on the same part of the project. They had the same supervisors: Chris Brossette, Becky Carruth, and Rick Caldwell, the chief information officer.

Mr. Yerger read Becky Carruth's letter and said he agreed with her assessment that "Frank perceived a tremendous amount of pressure." (Exhibit 7, p. 7). Mr. Yerger said he did not feel the same degree of pressure, that "I think different people are affected differently by things." (Exhibit 7, p. 7). Mr. Yerger thought the project was going better in the last few months before Frank's death.

Mr. Yerger said Frank had complained to him off and on about problems working under Rick Caldwell. Mr. Yerger had no problems with Mr. Caldwell, however. Mr. Yerger testified about Frank:

He felt more pressure than I did. I can say somehow it affected him more than it did some others. And it seemed like he was more in Rick's eye because he was the one responsible for this project. And if it wasn't going well, Rick would, you know, complain to Frank, you know. He got a lot more attention from Rick than I did.

According to Mr. Yerger, everyone in the department worked nine hours a day and took every other Friday off as their regular schedule. In December 1999, Mr. Yerger worked several Saturdays and stayed until 8:00 or 9:00 p.m. a few nights. He worked New Year's Eve and Day. He said he was working on Y2K concerns which did not involve Frank's part of the project.

On the day Frank died, Mr. Yerger saw him at the 10:00 am, meeting. Mr. Yerger went to lunch at 11:00 and returned about 11:45. He thought Frank went to the Fitness Center to work out during lunch as he often did, and at about noon Frank walked in and said he had been to the Fitness Center. Mr. Yerger said Frank said something about it being a "rough workout," and Mr. Yerger did not know what that meant. (Exhibit 7,p. 17). Then Mr. Yerger could hear Frank sit down in his nearby cubicle and make a telephone call. There was only a four-foot-high partition separating their cubicles. Mr. Yerger said further:

Then I heard him making a strange sound, kind of a wheezing sound. At first I thought he was laughing and then it kept on. And I said, "Frank, are you all right?" And he didn't answer. And so I kind of got up and looked, and he was slumped back in his chair like this, you know, like he was - something was wrong with him.

Mr. Yerger ran in, and Frank kept wheezing but did not respond to him. His eyes were open at first but apparently unseeing. Mr. Yerger thought Frank was having a seizure and he tried to get his collar unfastened. Frank kept slumping further back. Mr. Yerger said he was too befuddled to know what to do and he called for Paula, the nurse. By the time Paula came in., Frank had slid out of his chair, and Paula started CPR.

Paula Katherine McCormack testified by undated deposition that she is a registered nurse. She came to work at Baptist Health Systems in November 1998 as senior programmer analyst to work on a system called Care Manager, a nursing documentation and also on a Star Order Management System. She worked in an office across the hall from Frank Mullett.

When asked about the kind of stress Frank was under, Ms. McCormack responded:

I just think there was always a big - you know, it was a big project and that there was a lot of - I don't know how to put it. A lot of emphasis put on it. And I think it hadn't gone well for a while, and it was going better once I got there. And I think they had gone live with it and then had turned it off and had started again. So there was some physician insecurities about it, and so that was putting stress on the hospital itself and then, ultimately, on the rest of IS people that dealt with it.

Ms. McCormack was in the meeting that took place on the morning Frank died. She said that "it was a nice meeting" and Frank looked okay. (Exhibit 6, p. 13). She saw him later that day:

Sometime after lunch Frank came over to my cube and asked me a question. I was trying to think what it was related to. He asked me if I had time. And I said, "I don't have time right now." But then I asked him what he wanted. We were joking around, I guess. I can't remember what it was related to now, but he asked me a question about something. And he sat down beside my desk, and he was there maybe three or four minutes max. This was about, I would say, 10 to 15 minutes prior to them calling me over to his office.

Frank was on the floor right inside his cubicle and stretched out on the floor. He was not breathing. He was cyanotic, blue around his mouth, and he did not have a pulse. .. I thought maybe he had had a seizure, so I tried to stimulate him for a minute and there was no response. And so I started CPR.

On February 2, 2000, Becky Carruth, Director of Information Services at Mississippi Baptist Health Systems, wrote a letter to the claims adjustor regarding the stress Frank Mullett was under while working at Mississippi Baptist Health Systems. She said:

It is true that Frank was under a great deal of stress here at work. He was the primary person responsible for implementation of a very visible and important software system, a clinical data repository. The project has been extremely challenging, and there was a great deal of pressure to produce results. This product is really in it's [sic] infancy in use across the country and so at times we were treading on new ground with inadequate support from our vendor. Frank perceived a tremendous amount of pressure from our CIG [Rick Caldwell] to make the system work. However, I think it is key to understand that all of my staff function under pressure to produce.

Some other fact [sic] need to be considered. Frank's wife made the statement in the ER that Frank's father died of a heart attack in his early 50's. I also know that Frank discovered that he had high blood pressure shortly after he started work at Baptist. It was my understanding from him that they had some difficulty getting it under control. I was also told recently that Frank had been trying "natural" methods for lowering his blood pressure; I do not know if that means he had discontinued his perscription [sic] medication or not.

Frank had a great deal of stress in his life away from work as well. He lost his mother, to whom he was very close, last year. Frank was a very emotional person, and I know that he was still dealing with that loss. Frank has had to put a great deal of work into "fixing up" his mother's house to prepare it for selling. I don't think they've been able to sell it yet, and this has been an additional burden.

It is also my understanding that there have been several situations with Frank's wife's family that required Frank's involvement. I was told that her sister was arrested and that they had to go move all of her belonging [sic] out of her apartment or they would be thrown away; this happened within the last few months. I'm not sure of the details but I understand there was another crisis with another sister of Bonita's that required their intervention.

Mary Elizabeth Slinkard testified by undated deposition that she is director of the Mississippi Medical Information Network at Mississippi Baptist Health Systems. She said Frank Mullett worked in a different unit, Information Systems, but their cubicles were in the same suite of offices. She worked with Frank on some projects, and she saw him daily. She was at the meeting the morning he died.

Ms. Slinkard agreed that Frank was under a great deal of stress at work and agreed with the statements in Becky Carruth's letter. She said everyone put in overtime and worked New Year's Eve. She said she worked about ten hours a day in January 2000 and so did Frank.

On the day Frank died, Ms. Slinkard saw Frank at the 10:00 meeting. She had seen him earlier that morning for a "little chitchat." (Exhibit 8, p. 13). She said:

He was great. It was a great day.. . . He was just in a good mood and things were going well. It was a wonderful meeting. He really had it going. With this stressful job, he had the whole meeting in control. It was a great day for Frank.

When asked about Rick Caldwell, Ms. Slinkard said:
 

Rick has a level of expectation. He has general rules and expectations that he expects from everybody across the board from us all. He's a raise-the-bar 13 kind-of-guy. He wants us to be the first choice and our systems are first, and we have targets we have to live up to.

When asked about Frank during the first thirteen days of January 2000, Ms. Slinkard testified:

The first 13 days of January this year were good days. He was really on top of the project and things were going very well for him with that project. So those were not the stressors that I recall. The stressors I recall were more involved with all of the other goings-on in his life that were happening with family or things.

Good meetings like he had that day and the two weeks prior to where everybody would say, That a boy, Frank. Good job.

Christopher David Brossette testified by undated deposition that he was technical team leader in the information services department at Mississippi Baptist Health Systems. He was Frank Mullett's direct supervisor on January 13, 2000. Mr. Brossette worked under Becky Carruth and Rick Caldwell. Mr. Brossette said he had worked with Frank Mullett approximately eight months.

When asked about whether he agreed with what Becky Carruth reported to the claims adjustor in her letter of February 2, 2000, Mr. Brossette said:

Initially there was a lot of stress with the job, but as we got further along within the project the stress level was reduced because Frank had made great strides with the product and the vendor became a lot more supportive. There was also less stress from the CIO after we got the product up and running.

(Exhibit 11, p. 6). He elaborated:

In our job it's always going to be a stressful position. It doesn't matter what position you're in. And there's no more or less stress in this job than any I've had in the past, and there's less stress than some places I've worked.

Mr. Brossette said Frank had complained to him about the level of stress at work. Several times Frank also threatened to quit unless some things were straightened out. Mr. Brossette did not remember the specific dates.

Mr. Brossette said he was in the 10:00 meeting the morning Frank died. He described the meeting as "Very upbeat. A very good meeting. Rick was very positive." (Exhibit 11, p. 13). Frank looked fine that day. Mr. Brossette was not at the hospital when Frank died. He did not know what Frank was doing at the onset of the heart attack.

Some records of the MEA Medical Climc and Dr. Robert May are attached to Dr. Crosthwait's deposition (Exhibit 9). The earliest record is dated July 9, 1997, when Frank Mullett presented to the clinic complaining of high blood pressure. Notations about family history indicate Frank's father and mother had hypertension. There is a note about an exercise program in place at the Fitness Center. The notes are hard to read but show a reference to hypertension and a blood pressure reading of 188/124.

Three months later, on October 11, 1997, the blood pressure reading was 160/100, when Frank presented to the clinic with sinus problems and possible strep. Checked on the note form under "Major Problem List" was "High Blood Pressure." On November 4, 1997, Frank called needing a refill on medication, and Monopril was called in on November 5, 1997.

The next record is dated July 2, 1998, stating

Pt. Called wanting Monopril [refill]. Was angry because he was advised to RTC, has not been [checked] for B/P since 7/97. Advised pt. he could have #5 pills until Dr. May RTC. He became angry & stated he wasn't paying $50.00 to have B/P [checked]. Going out of town. Called pharmacy at 968-1135 closed. Monopril 20 mg. #20 [no] refill per Dr. Byrd. Pt. needs to RT & see Dr. May.

Dr. James L. Crosthwait, board-certified internist and specialist in cardiology at the Jackson Heart Clinic, testified by deposition dated November 22, 2000. Dr. Crosthwait did not examine or treat Frank Mullett but reviewed certain medical records from the Baptist Hospital and MEA Medical Clinic and certain correspondence about his job, including the letter written by Becky Carruth to the claims adjustor. The Baptist hospital records included an EKG taken in the emergency room which showed ventricular fibrillation. Dr. Crosthwait said he had no affiliation with the Baptist Hospital and does not practice there.
 

Although an autopsy was not performed, it would appear that the sudden death was related to ventricular fibrillation, most likely secondary to arteriosclerotic heart disease. The patient had a strong family history of early heart disease as well as hypertension, the latter likely not well controlled. I do not have any record of his cholesterol levels.

It is stated that he was under some increased stress at work with developing a software program for Baptist Hospital but at the time of his sudden death, was sitting in front of a computer without unusual stress and had just completed an exercise program at the Fitness Center. Such an exercise work out was not unusual for him.

No electrocardiographic data is available to substantiate the diagnosis of acute infarction but as stated, such an episode of sudden death in a person of this age is almost invariably due to a sudden arrhythmia related to ischemic heart disease. My diagnosis then, would be cardiac arrest due to ventricular fibrillation secondary to ischemic heart disease. I do not feel that his sudden death was related to his employment at the Baptist Hospital. I do not feel that his coronary artery disease or ischemic heart disease was related to his occupation and employment at the Baptist Hospital.

After rendering his preliminary opinion, Dr. Crosthwait reviewed depositions concerning the nature of Frank Mullett's job and the correspondence between Mrs. Mullett and Dr. May. His opinion remained the same as he had stated in the letter dated May 16, 2000.

At his deposition, Dr. Crosthwait testified that Frank Mullett suffered from a sudden death syndrome. The far and away most likely cause of this is the sudden failure of the heartbeat, which we call ventricular fibrillation.

I feel that the - although there was no autopsy performed when they - that this is by far and away the most likely cause of his death. And there are other possibilities, but this would be the most likely possibility.

When asked about whether Frank's job contributed to his death, Dr. Crosthwait responded:

The information I received to review on this case indicated that indeed - that he was in a job with quite a few responsibilities. But my feeling was that there was not - that the job did not cause or contribute to his heart disease or to the sudden death episode.

Dr. Crosthwait reviewed Dr. May's medical records and did not see any notation of heart problems or symptoms. He noted from the records that for some time Frank's blood pressure had been "elevated and poorly controlled." (Exhibit 9, p. 18). When asked if an individual with arteriosclerotic heart disease and ischemic heart disease would be expected to have symptoms prior to an acute attack, Dr. Crosthwait answered, "Oftentimes there are symptoms, but oftentimes there are not symptoms." (Exhibit 9, p. 18). He also said, "[I]t is very common for people to have sudden fatal heart attacks with absolutely no history." (Exhibit 9, p. 19).

Dr. Crosthwait thought Frank's sudden death was more likely related to a heart attack than to a stroke. Dr. Crosthwait said, "Poorly controlled hypertension is a risk factor for a heart attack and sudden death." (Exhibit 9, p. 22). Dr. Crosthwait thought Frank

had an acute plaque rupture which closed one of his heart artenes.

That's his - a plaque - a rupture- that's what causes heart attacks is you have a rupture of a cholesterol plaque, sets up a blood clot, occludes the artery, and causes an immediate problem.

If your blood pressure is high, these plaques are more likely to rupture. And I'm assuming based on - even though we don't have his blood pressure at the immediate time, the - he very well - as you say, his pressure was not controlled. This could be related to the acute episode of high blood pressure.

Dr. Crosthwait admitted that when he rendered his opinion that he thought Frank Mullett was not taking any blood pressure at the time of his death. When asked if he would change his mind if Frank had been taking Diavan at the time of his death, Dr. Crosthwait answered that it was just the fact that he had high blood pressure that put him at risk for developing heart disease. If the blood pressure were controlled the risk would be less. Dr. Crosthwait pointed out that the MBA records indicated the blood pressure was not controlled. Dr. Crosthwait elaborated:

Now, had his blood pressure - and, again, I'm not sure what you're trying to - if his blood pressure was normal the day he died, then obviously the - we can't say the high blood pressure affected him on that particular day. But over the long haul, the last few months of his life, the pressure being elevated most of that time apparently, or a lot of that time, would have been a risk factor for developing heart disease.

When asked about emotional stress as a factor in the heart attack, Dr. Crosthwait responded:
 

If somebody had an extraordinary emotional stress and then within a minute fell dead, then I would be hard put not to say that that emotional stress had nothing to do with it. And I - common sense would say that.

But I cannot make a statement that under ordinary, everyday activities, that emotional stress would be a trigger for a heart attack.

After carefully considering the pleadings, pretrial statements, stipulations, lay and medical evidence, and the applicable law, the Administrative Judge finds as follows:

The employer and carrier have produced credible lay and medical evidence to rebut the found-dead presumption, that is, the presumption that Frank Mullett' s death was causally related to his employment at the Mississippi Baptist Medical Center. His heart attack and death did not arise out of his employment.

The Mississippi Supreme Court long ago established that if a worker is found dead while on the job there is a presumption that the death is compensable.¹ This presumption is not absolute but is rebuttable.

In 1988, the legislature codified the "found-dead presumption" in the Mississippi Workers' Compensation Act by amendment to the definition of "injury" set forth in Mississippi Code Annotated § 71-3-3 (b), "injury" for purposes of the Act is defined as

accidental injury or accidental death arising out of and in the course of employment without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner. Untoward event includes events causing unexpected results. An untoward event or events shall not be presumed to have arisen out of and in the course of employment, except in the case of an employee found dead in the course of employment. (emphasis added).

When an employee is found dead under circumstances indicating that death took place within the time and space limits of the employment, in the absence of any evidence of what caused the death, most courts will indulge a presumption or inference that the death arose out of the employment.

The theoretical justification is similar to that for unexplained falls and other neutral harms: The occurrence of the death within the course of employment at least indicates that the employment brought deceased within range of the harm, and the cause of harm, being unknown, is neutral and not personal. The practical justification lies in the realization that, when the death itself has removed the only possible witness who could prove causal connection, fairness to the dependents suggests some softening of the rule requiring claimant to provide affirmative proof of each requisite element of compensability.

All risks causing injury to a claimant can be brought within three categories:  risks distinctly associated with the employment, risks personal to the claimant, and "neutral" risks - i.e., risks having no particular employment or personal character. Harms from the first are universally compensable. Those from the second are universally noncompensable. It is within the third category that most controversy in modern compensation law occurs. The view that the injury should be deemed to arise out of employment if the conditions of employment put claimant in a position to be injured by the neutral risk is gaining increased acceptance.

When employment and personal risks concur to produce injury, the injury arises out of the employment, since the employment need not be the primary cause, but need only contribute to the injury.

The found-dead presumption shifts to the employer/carrier the procedural burden of producing evidence of explanation for the initially unexplained death.⁴ The employer/carrier must satisfy a three-part test to rebut the presumption. The employer/carrier must show (1) a full development of the decedent's work activities leading up to the time of death. (2) the cause of death, and (3) that the activities of the worker did not cause or contribute to the death.⁵All three prongs of the test must be met.⁶

Larson's treatise contains a section on unexplained deaths involving heart attacks, § 7.04[2][a], which states that in a substantial majority of states compensation is denied when:

[t]here is positive evidence that the decedent suffered a heart attack, and no definite evidence that the employment contributed to the onset of the attack, as through heat or exertion, or to the aggravation of its effect, as through a fall from a height.

At the other extreme are origins of harm so clearly personal that, even if they take effect while the employee is on the job, they could not possibly be attributed to the employment. If the time has come for the employee to die a natural death, or to expire from the effects of some disease or internal weakness of which he or she would as promptly have expired whether the employee had been working or not, the fact that the demise takes place in an employment setting rather than at home does not, of course, make the death compensable.

In some cases, the deceased employee's dependents offer medical evidence of connection between the employee's activities and the death rather than relying on the found- dead presumption alone.⁹ This is because once the employer/carrier rebut the presumption of compensability, the burden shifts back to the decedent's dependents to present evidence connecting the causal connection of the death to the work.

In the case of Frank Mullett, there is detailed evidence of what Frank did on the day of his death. He arose early, although he had had a strenuous evening painting the bedroom the previous night. He was obviously upset about not being able to obtain the Norvasc prescription which he needed for control of his blood pressure, and he had tried to call Dr. May at home but was unsuccessful. His wife said he had not been himself for several days, apparently extremely bothered because he could not get the Norvasc prescription without going to the Medical Climc. She was also distressed about the prescription problem, so much so that she wrote Dr. May a letter that could be interpreted as blaming Frank's death on his inability to obtain the Norvasc after the samples ran out.

Frank went to work about 7:00 a.m. Once at the Baptist Medical Center, Frank had chatted with Mary Elizabeth Slinkard sometime early in the morning. At 10:00 a.m., he had a regular, biweekly meeting with other staff members, and the meeting went very well. Frank was described as looking fine, exhibiting no symptoms, and making no complaints. Ms. Slinkard said Frank was in a good mood and things were going well for him. He was being complimented on his work with the project, and the project was past the most trying stages of development.

At his lunch break, Frank went to the Fitness Center for exercising that afterward he described to Norval Yerger as "a rough workout," returning to his office about noon. Sometime after the lunch hour, Frank went to Paula MeCormack's cubicle and asked her a question. She described their conversation as lasting only a few minutes and characterized it as "joking around." Mr. Yerger sat in a cubicle near Frank's, and he could hear Frank sit down and make a telephone call. Mr. Yerger heard nothing unusual until at some point he heard Frank making a wheezing sound he at first thought was laughing. Then he realized that something was wrong, and he ran in and discovered Frank slumped down in his desk chair, apparently as he died.

No autopsy was performed, so the cause of death cannot be determined with absolute certainly. This is true in any death case where there is not an autopsy. There is no requirement of an autopsy in a workers' compensation death claim.

The employer and carrier have produced credible expert medical opinion from Dr. Crosthwait who opined that Frank Mullett's sudden death was cardiac arrest related to ventricular fibrillation, or sudden failure of the heartbeat, as shown on the EKG at the emergency room, most likely secondary to arteriosclerotic heart disease. Dr. Crosthwait testified that the poorly controlled high blood pressure was a risk factor for development of heart disease but it did not cause the death. He did not think the level of the blood pressure on the day of the heart attack was as important as the fact that there had been a long period of poorly controlled hypertension, as evidenced by the records of the MBA Medical Clinic and Mrs. Mullett's letter to Dr. May.

When asked if the stress Frank Mullett had on the job caused his heart attack, Dr. Crosthwait said the job did not cause or contribute to the heart disease or sudden death. Dr. Crosthwait had reviewed the letter from Becky Carruth and the depositions of the other four coworkers at Baptist Health Systems, in addition to Frank's medical records, so he knew what Frank's activities were on the day of his death.

It is undisputed that Frank Mullett had a job with many responsibilities, and there were daily stresses on the job. He was a computer analyst earning approximately $60,000 a year as the primary person in charge of a particular software system project at the hospital. Becky Carruth, a supervisor, wrote that Frank perceived a great deal of stress at work. She said that all the Information Systems staff worked under pressure to produce, however. Other coworkers agreed that Frank felt the pressure, but they also agreed that the project was in good shape and Frank was on top of things regarding the project. The several weeks or months before the heart attack, things had been going well.

By all accounts, there was no episode of extreme stress on the job on the day Frank died. He did not in any way exert himself physically at work. While at work, he was within the sight or hearing range of coworkers. Norval Yerger worked in an adjacent cubicle with only a four-foot high partition between their work spaces, and he could hear what Frank was doing in his cubicle.

It is also unrefuted that Frank was significantly bothered by blood pressure that had not been well controlled for several years. His family physician, Dr. May, had prescribed Monopril, then Diavan, then another type of Diavan, through the months, attempting to control the hypertension. About a month before his death, Frank had complained of headaches again and had received from Dr. May some samples of a new medication, Norvasc, that seemed to relieve the elevated blood pressure. He ran out of the Norvasc and for a week or so was quite upset about not getting a prescription for this medication. It is apparent that the Diavan he had been taking was no longer doing the job. Frank had even tried various natural remedies that he purchased at a health food store about two months before he died, and he was apparently taking those vitamins and other supplements at the time of his death, in addition to the Diavan which he still had.

There were other personal stresses in Frank's life as well. His mother's death had been difficult for him emotionally, and he had the responsibility of fixing up her house to sell. His sister-in-law had been in some financial trouble, and he was helping her. His personal problems were of such a magnitude that his coworkers were aware of them.

The employer and carrier have presented evidence to satisfy the three parts of the test to overcome the found-dead presumption. Through Frank's wife's testimony and the statement/depositions of his co-workers, they have fully developed Frank's activities up to the time of death on the day he died. They have presented credible medical evidence from Dr. Crosthwait that Frank died of sudden failure of the heartbeat due to ischemic heart disease, a personal condition not caused or related to his work. Dr. Crosthwait knew what Frank's activities were on the day of his death and said that his ordinary, everyday activities did not trigger the heart attack.

IT IS THEREFORE ORDERED that the claim of Bonita S. Mullett, Molly Mullett and Michael Mullett, for workers' compensation benefits relating to the death of Frank Edward Mullett is hereby denied and dismissed.

SO ORDERED, this the 2nd day of April, 2001.

LINDA A. THOMPSON
ADMINISTRATIVE JUDGE

ATTEST:
Jo Ann McDonald
COMMISSION SECRETARY
 
 

1 E.g., Washington v. Greenville Mfg. & Machine Works, 223 So.2d 642 (Miss. 1968) (Washington was found dead of a heart attack before anyone else caine to the workplace early in the morning.).

2 1 LARSON'S WORKERS' COMPENSATION LAW § 4.02.

3 1 LARSON'S WORKERS' COMPENSATION LAW §4.03.

4 Holman v. Standard Oil Co. of Kentucky, 242 Miss. 657, 666, 136 So.2d 591, 594
(1962).

5 Washington v. Greenville Mfg. & Machine Works, 223 So.2d 642, 647 (Miss. 1969).

6 Washington v. Greenville Mfg. & Machine Works, 223 So.2d 642 (Miss. 1969)
(Activities of worker before his death were completely unknown, and thus the first part of the test was not met.); Johnston v. Hattiesburg Clinic, PA., 423 So.2d 114 (Miss. 1982) (Activities of decedent were not fully developed, so it was not known whether she was doing something strenuous. ); Nettles v. Gulf City Fisheries, Inc., 629 So.2d 554 (Miss. 1993) (Employer failed to rebut presumption because the medical experts did not know anything about the decedent's activities at work and could not testify about whether the activities caused the death, thus not satisfying the third part of the test.).

7 See, e.g., Dependents of Chapman v. Hanson Scale Co., 495 So.2d 1357 (Miss. 1986) (Claimant had idiopathic fall but struck head on concrete floor of employer's premises).

8 Union Producing Co. v. Dependents of Simpson. 251 Miss. 183, 168 So.2d 808 (1964); see, e.g, Hungerford v. Southern Shell Fish Co., 230 So.2d 59 (Miss. 1969)(no evidence that deceased "over-extended himself' before his acute myocardial infarction); Univ. of Miss. Medical Center v. Dependents of Stewart, 318 So.2d 825 (Miss. 1975) (worker not doing anything
strenuous when he had an acute myocardial infarction).

9 E.g., Nettles v. Gulf City Fisheries, Inc., 629 So.2d 554, 556 (Miss. 1993); Univ. of Miss. Medical Center v. Dependents of Stewart, 318 So.2d 825 (Miss. 1975).