MWCC NO. 00-01504-G-8372

DEPENDENTS OF FRANK E. MULLETT (DECEASED)                                                                      CLAIMANTS

VS.

MISSISSIPPI BAPTIST MEDICAL CENTER                                                                                           EMPLOYER

AND

THE VIRGINIA INSURANCE RECIPROCAL                                                                                             CARRIER

REPRESENTING CLAIMANT:
John G. Jones, Esquire, Jackson, MS

REPRESENTING EMPLOYER/CARRIER:
Douglas R. Duke, Esquire, Jackson, MS

This matter was heard by the Commission on August 20, 2001 pursuant to the Claimants Petition for Review. The Claimants' argue that the Order of Administrative Judge entered April 2, 2001 erroneously denied them workers' compensation benefits for the death of Mr. Frank Edward Mullett, which occurred on January 12, 2000. We agree and reverse.

On January 12, 2000, Mr. Frank Edward Mullett was found dead at work, having died apparently from a sudden fatal heart attack. The Employer/Carrier denied the compensability of Mr. Mullett's death and paid no benefits therefor. In presenting the claim to the Commission for decision, the parties have stipulated that Mr. Mullett fell and was found dead during the course and scope of his employment, and that the familiar "found dead" presumption applies. The only question is whether this presumption of compensability has been adequately rebutted by the Employer/Carrier.

The found dead presumption is rooted in Miss. Code Ann. §71-3-3(b) (Rev. 2000) which states that an accidental death "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." The Mississippi Supreme Court has explained "that there is a presumption of casual connection between the employment and the injury or death when the onset of a heart attack occurs while the employee is about his work and engaged in the duties of his employment, and that the fatal consequences arise out and in the course and scope of his employment." Johnston v. Hattiesburg Clinic. P.A., 423 So.2d 114, 117-118 (Miss. 1982), quoting Russell v. Sohio Southern Pipelines Inc., 236 Miss. 722, 112 So.2d 357 (1959). As noted above, the parties in this case agree that Mr. Mullett's death falls squarely within this presumption.

In order for the Employer/Carrier to effectively rebut this presumption, they must present credible evidence which proves that Mr. Frank Mullett died from causes unrelated to his employment. More particularly, the Employer/Carrier must sufficiently prove the cause of death, and "the work activities of the decedent must also be fully developed to show that such activities did not cause or contribute to the heart attack." Nettles v. Gulf City Fisheries.. Inc., 629 So.2d 554, 557 (Miss. 1993), quoting Johnston, 423 So.2d at 119-120; Washington v. Greenville Mf~. & Machine Works, 223 So.2d 642, 647 (Miss. 1969).

Part of the Employer/Carrier's rebuttal proof must adequately explain the cause of Mr. Mullett' s death. The death certificate lists Mr. Mullett' s immediate cause of death as acute myocardial infarction. Dr. Crosthwait, an expert in the fields of internal medicine and cardiology, termed the cause of Mr. Mullett' s death as sudden death syndrome due most likely to ventricular fibrillation, or sudden failure of the heartbeat. In any event, no one seriously disputes that Mr. Mullett's death was caused by an acute heart attack.

The critical point of disagreement, and the outcome determinative issue in this case, is whether the Employer/Carrier has produced enough "credible evidence [to convince the fact finder] that the deceased employee's work 'activities did not cause or contribute to the heart attack."' Road Maintenance Supply. Inc. v. Maxwell, 493 So.2d 318, 321 (Miss. 1986).

Frank Mullett was born September 29, 1955 and was first hired by Mississippi Baptist Medical Center in May 1997 as a project manager. Mr. Mullett was an avid exerciser who enjoyed weights, tennis and running. He exercised regularly, including on the day he died, and had done so for 15 years preceding his death.

Shortly after his hire at Mississippi Baptist Medical Center, Mr. Mullett was diagnosed with hypertension. This was his only known health problem, other than kidney stones, and was controlled by medication. To the day he died, Mr. Mullett took his prescribed medication and monitored his blood pressure on a regular basis.

As for Mr. Mullett's work, everyone agreed his job was stressful, sometimes highly so. In addition to servicing and maintaining a number of the computer software programs used at the Hospital, Mr. Mullert had also been placed in charge of a project known as the Health Network Server ("HNS") project. This was a major project for Baptist which, when completed, would allow doctors and nurses to view complete information on their patients at anytime from a single computer location.

Mrs. Bonita Mullett, Frank Mullett's wife, testified that Frank often worked from home outside of his regular hours at the Hospital trying to troubleshoot computer problems at the Hospital. Many times these problems could not be fixed remotely and Mr. Mullett would go in to the Hospital. She described this near constant attachment to work as source of disagreement between her and Frank, and as a significant stressor for Frank.

Mrs. Mullett also testified that Frank's work was highly stressful because of the high expectations of his superior, Mr. Rick Caldwell, the Chief Information Officer for Baptist. According to Mrs. Mullett, Mr. Caldwell had a military background which showed through prominently in his management style; he expected perfection and would come down hard on those who did not achieve it.

Numerous times Mr. Mullett told another of his superiors, Becky Carruth, that he needed help on the HNS project, but none was ever provided. According to Mrs. Mullett, her husband threatened on several occasions to quit if more assistance was not provided, but he persevered instead. She remembered Frank telling her just before Thanksgiving in 1999 that he could not handle the stress load from his job much longer, and that Becky Carruth had promised she would try to help.

Mrs. Mullett also testified that Frank endured some stressful periods after his mother died in February 1998 because of his close relationship to his mother. Both Mrs. Mullett and her husband likewise endured some stressful times in late November 1999 because of problems they were having with a sister.

In the day or two before Mr. Mullett died, his wife could tell he was somehow not himself, yet he did not complain. She knew he had been agitated with his doctor's office about getting a prescription for a new blood pressure medication that his doctor had recommended. Mr. Mullett also told his wife the night of January 11, 2000 that he had been through an especially stressful day at work. That night, together, they painted a bedroom in their house and the next morning Mr. Mullett left for work as usual. That was the last time Mrs. Mullett saw her husband alive.

Becky Carruth, one of Mr. Mullett's supervisors, confirmed by letter to a representative of the Carrier, that 'Frank was under a great deal of stress here at work" prior to his death. Her letter about Frank Mullett also stated:

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 has been 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 CIO to make the system work. However, I think it is key to understand that all of my staff function under pressure to produce.

2.

Ms. McCormack was also present at a staff meeting on the morning Frank Mullett died. She thought this particular meeting went well. There were no harsh exchanges or statements by or between anyone present.

Sometime after lunch, Ms. McCormack was approached by Mr. Mullett who asked her a question about his project and sat down beside her desk for perhaps three or four minutes. She stated that Mr. Mullett did not appear to be in any distress and that he returned to his office cubicle. Within another 10 to 15 minutes, Ms. McCormack, a registered nurse, was summoned to Mr. Mullett's cubicle by a co-worker who said Frank had passed out. When she arrived, she observed Mr. Mullett stretched out on the floor, not breathing and with no pulse. Attempts by Ms. McCormack and others to resuscitate Mr. Mullett were unsuccessful. Importantly, Ms. McCormack had no idea what Mr. Mullett's activity or state of mind had been during the period after he returned from his workout and when he came to her office, or during the 10 to 15 minute period after he left her office.

Mr. Norval Yerger, another of Mr. Mullett's co-workers, testified by deposition that Mr. Mullett indeed had a stressful job which was made worse by the fact that the product vendor for the HNS project was not very helpful. Consequently, Mr. Mullett was required to spend a lot of time talking on the phone with the vendor trying to troubleshoot various problems. Mr. Yerger also confirmed that Mr. Mullett was under a lot of pressure from the Hospital CIO because of his leadership role in this particular project.

Mr. Yerger worked in a cubicle style office that was separated from Mr. Mullett's cubicle by only a four foot high partition and a small corridor. They conversed frequently with each other from their own cubicles although they could not visualize each other without moving away from their respective desks. On January 12, 2000, the date Mr. Mullett died, Mr. Yerger returned from lunch between 11:30 a.m. and 11:45 a.m. and Mr. Mullett was still at the Fitness Center at Baptist where he had gone to exercise during his lunch break. Mr. Yerger was in his office area with Eric Hindman, a representative from the product vendor on the HNS project, when Mr. Mullett returned at about noon.

Mr. Yerger did not see Mr. Mullett when he returned from lunch but he heard him make the comment that his workout had been rough. Mr. Yerger later heard Mr. Mullett place a phone call. Mr. Yerger did not know the nature of this phone call, but shortly thereafter he heard a strange, wheezing type sound coming from Mr. Mullett's cubicle. At first Mr. Yerger thought this was a laugh, but when the sound continued, he called to Mr. Mullett who did not respond. He then looked into Mr. Mullett's office and found him slumped in his chair and unresponsive.

Mr. Yerger estimated that no more than 10 minutes passed from the time Mr. Mullett placed this phone call until he suffered his fatal heart attack. Importantly, Mr. Yerger did not know specifically what Mr. Mullett was doing or who he was talking too from about noon until the time of the attack sometime around 1:15 p.m.

Mary Elizabeth Slinkard worked in the same office as Mr. Mullett though not on the same projects. Nonetheless, she attended a staff meeting with Mr. Mullett and others at 10:00 a.m. on the day he died. She described the meeting as successful and stated that Mr. Mullett was particularly impressive that day. Once this meeting broke, and everyone went their separate ways, Ms. Slinkard did not see Mr. Mullett again until after the heart attack.

Dr. James Crosthwait testified by deposition concerning the possible cause of Mr. s fatal heart attack. No autopsy was performed but Dr. Crosthwait did review medical records furnished by Baptist Hospital and MEA Medical Clinics, as well as certain information concerning Mr. Mullett's job with Baptist. Dr. Crosthwait concluded that Mr. Mullett's job did not contribute in any way to his heart attack. Dr. Crosthwait reached this opinion largely because the information he had been given suggested that Mr. Mullett was not subjected to any traumatic or unusually stressful events on the day of his death. Dr. Crosthwait also stated that Mr. Mullett's hypertension did not cause his heart attack. Instead, he felt Mr. Mullett had previously developed arteriosclerotic heart disease which in turn lead to his heart attack.

Significantly, Dr. Crosthwait admitted in his testimony that extreme emotional stress could trigger a fatal heart attack like the one suffered by Mr. Mullett. He stated that to effectively include or exclude a stressful event as a contributing cause, one would have to know what the deceased was doing at the time of the onset of the heart attack. In this case, Dr. Crosthwait admitted that he did not know specifically what Mr. Mullett was doing at the time of onset, and hence, whether he experienced an extremely stressful event just prior to onset. He also stated that Mr. Mullett would not necessarily have exhibited any symptoms or warning signs of his fatal attack 60 to 75 minutes prior to its onset.

The evidence in this case is clear that no one knows specifically what Frank Mullett was doing or what his emotional state of mind was at the time of his fatal heart attack, or for the 60 to 75 minutes just prior. The Employer/Carrier contends, however, that we know enough about Frank Mullett's activities and state of mind on the date of his death that we can safely assume the last 60 to 75 minutes of his life were routine and did not involve any activity or emotional stress which may have contributed to his fatal heart attack. Dr. Crosthwait, the Employer/Carrier's medical expert, admitted he did not know what Frank Mullett was doing in the last 60 to 75 minutes of his life, and had assumed from all of the aforementioned evidence that Mr. Mullett was having merely a normal day.

The question is whether Mr. Mullett's activities and state of mind on the date of his death were developed and explained in sufficient detail so as to rebut the presumption that his death was caused at least in part by his work. In our opinion, the answer is no. At first blush, the failure to prove the extent of Mr. Mullett's activities or state of mind during the last 60 to 75 minutes of his life may seem trivial, especially when his work day prior to that point has been so well documented and explained. Nonetheless, for purposes of rebutting the presumption of causal connection which applies in this case, it seems just as important, if not more so, to know what Mr. Mullett was doing in the last 60 to 75 minutes of his life as it is to know what he had done for the entire morning or the entire year prior. Unless the activities of Mr. Mullett are clearly reported "even up to the moments before [he] collapsed," then the presumption of causal connection is not effectively rebutted. Johnston v. Hattiesburg Clinic. P.A., 423 So.2d 114,117, 120 (Miss. 1982).

All we have presently are assumptions that Mr. Mulleti did not experience extreme emotional stress or engage in some other activity which triggered or at least contributed to the onset of his heart attack based on proof which shows the extent of his activities and state of mind for the period of time ending at least 60 to 75 minutes before the onset of the attack. As in
Washington v. Greenville Mfg. & Machine Works, 223 So.2d 642, 646 (Miss. 1969), if we "are to indulge in assumptions" that Mr. Mullett's death was not caused or contributed to by his employment based on the proof of his activities and state of mind leading up to the 60 to 75 minute period immediately preceding his death, "[t]hen there are other assumptions favorable to the employee which could be indulged in if we are to indulge in such assumptions."¹

"In today's case, we have no credible medical expert opinion testimony [based on established, not assumed, facts] to the effect that [Mullett's] death, even assuming it to have been the result of a heart attack, was not caused at least in part by his work activities. . ." Road Maintenance Supply. Inc. v. Dep. of Maxwell, 493 So.2d 318, 321 (Miss. 1986). The Employer/Carrier no doubt feel they have done enough, and that their development of the facts to within 60 to 75 minutes of Mr. Mullett's death is enough, but their complaints that the burden we have placed upon them is too rigorous "belie the likelihood that, if anything, greater unfairness would attend its placement on claimant[s] whose principal witness has been silenced by death." Id. at 322.

The Order of Administrative Judge entered April 2, 2001 is hereby reversed and held for naught. The Employer/Carrier are ordered instead to pay benefits, including penalties and interest as required, in accordance with Miss. Code Ann. §71-3-25 (Rev. 2000), to the Claimants herein as a result of the unfortunate and untimely death of Mr. Frank Edward Mullett.²

SO ORDERED this the 11th day of September, 2001.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
Ben Barrett Smith, Chairman
Barney J. Schoby, Commissioner
Lydia Quarles, Commissioner

ATTEST:
Jo Ann McDonald
Commission Secretary

1 For example, given the fact that he approached Ms. McCormack with a project question about 15 minutes before he suffered his fatal heart attack, it could reasonably be assumed that he had encountered significant problems with the HNS project which consumed his attention after returning to his cubicle at noon; and that the phone call he placed just prior to his death was a technical support call to the vendor which did not go well and which caused him extreme emotional stress. This phone call may well have concerned or signaled a significant set back on the project, a disturbing turn around given his presentation earlier in the morning which left the impression that good progress was being made with the HNS project. Or, perhaps, during the 60 to 75 minute period prior to the attack Mr. Mullett decided to try and reposition his desk or a partition wall and suffered a fatal heart attack under the physical strain. Assumptions yes, but no less reasonable than the assumption indulged in by the Employer/Carrier to the effect that nothing untoward whatsoever occurred during the last 60 to 75 minutes of Mr. Mullett's life which could have possibly contributed to the onset of his fatal heart attack.

2  Claimants' request to strike a supplemental memorandum submitted by the Employer/Carrier after the close of briefing and oral argument is also granted.