STATE OF NEW HAMPSHIRE

DEPARTMENT OF LABOR

CONCORD, NEW HAMPSHIRE

 

THE ESTATE OF MICHAEL RICE 

v. 

WALMART STORES INC

 

 

DECISION OF THE HEARING OFFICER



APPEARANCES:
Joyce Smithey, Esq. representing the Estate of Michael Rice
Donna M. Daneke, Esq. representing the employer through AIG Claim Services

WITNESSES:
Vicki Rice, widow of Michael Rice
David Calkins, WalMart employee
AI Jenkins, District Manager for WalMart Northern New England
Jeffrey Whitney, Store Manager of Concord WalMart
Sherri Jone, Personnel Manager at Concord WalMart

NATURE OF DISPUTE:
RSA 281-A:2XI,XIII- Causal Relationship to of Injury to Employment
RSA 281-A:26 - Compensation for Death Benefits

DATE OF INJURY:
9/2/99

DATES OF HEARING:
9/19/2000 and 10/10/2000

 

BACKGROUND AND STATEMENT OF THE ISSUES

 

A First Report of Injury dated 7/17/2000 reflects a date of injury of 9/2/1999 and indicates a heart attack while "walking up to Radio Grill" which was located inside the WalMart Store in Tilton, New Hampshire.   A memo of Denial was issued on 8/4/2000 based on no causal relationship to employment.

 

This hearing was scheduled pursuant to Estate counsel's request received on 8/8/2000.   Initial notice of hearing was issued on 8/21/2000.   A hearing was held which extended for two days on 9/19/2000 and 10/10/2000.   A Birth Certificate was submitted after close of the hearing.

 

FINDINGS OF FACT

 

Michael Patrick Rice, the deceased, was born on 7/11/51 and died on 9/7/99.   A Certified Abstract of a Certificate of Death indicates that the cause of death was diffuse anoxic brain injury and myocardial infarction.  At the time of his death, Mr. Rice had been recently employed as an assistant manager at the WalMart in Tilton, New Hampshire.  His employment at WalMart began in August of 1989 and for the next 10 years, Mr. Rice relocated himself and his family six times in order to advance his career at WalMart.  He had aggressively sought a position at WalMart following an entrepreneurial history which included owning his own business.  Mr. Rice was a loyal employee and by all accounts dedicated himself to the company.  Originally, from Missouri, the claimant eventually found himself in the northeast and in August of 1997 he became the manager of the Hooksett Store.  However, due to various circumstances peculiar to the Hooksett store, Mr. Rice was demoted after a year and half and was relocated to the Tilton New Hampshire Store as an assistant manager.  As both an assistant manager and manager, Mr. Rice worked long hours routinely expected of the salaried employees.  However, Mr. Rice would work as much as 75 hours per week and it would not be unusual for him to work between that and 90 hours per week during holidays.  Witness testimony confirmed the fact that the claimant was always at work before 7:00 am and often before 5 am, and would work until after 10 pm.  There were no time clocks for salaried employees and additional witness testimony suggested that working in excess of 52 to 54 hours per week was not expected or required.  -However, Mr. Rice's employer was aware that the claimant worked excessive hours and understood that Mr. Rice "loved his job."

 

Following Mr. Rice's forced transfer to the Tilton Store as an assistant manager, Mr. Rice worked very hard to "prove himself." In the last 16 days of his life, he had worked 10 days in a row, prior to taking 3 days off, and again working 48 hours over the next three days.  The store was short staffed prior to the Labor Day weekend.  Employees were expected to "be available for numerous departments and Mr. Rice himself was working not uncharacteristically at various levels including customer support.  On 8/31/99, no stockmen were available to help customers take heavy purchases to their vehicle.  Mr. Rice came to the assistance of a female customer who had just purchased a "larger" television set.  Electronic records confirm that on that date six televisions with 25" and larger screens were sold.  A 25" television weighed approximately 62 pounds.  The term "larger" was used to refer to televisions with 27" screens or more.  Mr. Rice was observed pushing a "larger" television on a so-called "silver bullet" dolly for a female customer from the cash register area out into the parking lot.  A co-worker had indicated that "Mike need help with one of the larger TVs." Mr. Rice was observed returning back into the store at which point he collapsed on the floor to the inside right of the entrance near the Food Grill area.  The time elapse between Mr. Rice's walking out of and returning back into the WalMart Store was less than five minutes.

 

Although CPR was initiated, there was apparently some delay in obtaining oxygen.  Mr. Rice was transferred to the Franklin Regional Hospital by emergency rescue where he was diagnosed with an acute myocardial infarction \ status post cardio pulmonary arrest.  Mr. Rice remained on life support for the next several days but died due to anoxic encephalopathy or brain death.

 

The claimant has a past medical history suggesting that in 1989 he had a "silent" inferior wall myocardial infarction with a chronically occluded right coronary artery.  However, for the next 10 years, Mr. Rice worked at WalMart as described above.  He had been told to modify his life style in response to which he gave up his smoking habit for the next eight years and his widow indicated he attempted to create healthy food habits.  In June 1998, the claimant was evaluated by a primary care physician, Dr. Betchart who recommended a cardiac evaluation given the claimant's past history and risk factors.  Mr. Rice was evaluated by Dr. Kenneth Deloge, a cardiac specialist, who requested that Mr. Rice undergo a treadmill stress test in March 1999 (which he passed) and advised him to modify his risk factors.

 

Mr. Rice's personal life reflected a good 27 year marriage.  He had two sons, ages 27 and 17.  Given Mr. Rice's schedule, Mrs. Rice attempted to take care of all home life issues, although there were difficulties and occasional turmoil regarding one of the children about whom Mr. Rice would express concerns to co-workers.  In the two years preceding his death, Mr. Rice had begun smoking approximately a half pack of cigarettes per day and was known to enjoy doughnuts and other fast foods which he would obtain at the Food Grill at WalMart.  Mr. Rice had expressed his concerns regarding the evolving nature of the store philosophy following Sam Walton's death.  His own demotion from his long sought managerial position as a manager (in Hooksett) and as well as the evolving WalMart culture had impacted him.  However.  Mr. Rice was well liked by his co-workers and associates for his good nature and generosity of spirit.

 

DISCUSSION AND CONCLUSIONS

 

All of the evidence was carefully reviewed for the purpose of this decision.  The specific medical records from the Franklin Hospital Admission and Discharge, as well as Dr. Kenneth Deloge's opinion letter of 6/12/2000, Dr. Frank Betchart's opinion letter of 8/9/2000, and Dr. Millo Pulde of Brigham and Women's General Medical Associates record review dated 8/14/2000 are essentially consistent for the following facts.  Mr. Rice had a cardiac history and multiple cardiac risk factors.  These factors include male gender, tobacco use, the weight issue, and cholesterol issue.  The claimant had a myocardial infarction which had resulted in the anoxic encephalopathy, which plainly stated \ indicated brain death secondary to lack of blood flow during the resuscitation efforts following the cardiac arrest.  Although Mr. Rice's myocardial infarction could have resulted from his predisposition, Dr. Pulde himself indicates that MR. Rice was able to undergo the treadmill stress test with considerable energy on 3/4/99 albeit with changes noted.  Dr. Pulde writes that triggers of myocardial infarction, specifically significant exertion, can occur within a half to one hour of the episode and that a clarification of the circumstances surrounding the individual's sudden collapse are essential to identifying a trigger.  Facts support Mr. Rice did have unusual exertional event approximately five minutes prior to his collapse.  Mr. Rice was observed handling the "larger" television set which weighed at least 62 pounds, if not more.  Circumstances suggest that the female customer did not have Mr. Rice accompany her to her vehicle with the television on the "silver bullet" only to load it herself.  Mr. Rice was seen walking to the vehicle with the television and returning directly from the vehicle at which point he collapsed.  The circumstantial evidence strongly supports an unusual exertional event proximate to Mr. Rice's collapse upon reentry into WalMart.

 

The case law is well established in this area.  The evidence supports a finding of a substantial contribution in a form of an incident involving unusual exertion and therefore legal causation of injury to employment.  The medical records identify the claimant's past history and also indicate that despite these risk factors, an unusual exertional event would trigger the onset of myocardiac infarction.  The actual weight of the object in excess of 62 pounds is not in and of itself determinative.  Dr. Pulde himself identifies that the amount of energy required to carry an object greater than 60 pounds is a possible exertional trigger.  Although Dr. Deloge was misinformed with respect to the weight of the television, his final opinion regarding the work-related death resulting from an episode of overexertion remains persuasive and is in fact supported by arguments advanced in Dr. Pulde's thorough report.  It is noted that Dr. Pulde failed to have the benefit of the credible testimony regarding the circumstances of Mr. Rice's sudden collapse.  Accordingly it is concluded that medical causation of injury to employment is satisfied.

 

DECISION

 

It is determined that based on all of the evidence submitted, the Estate of Michael Rice has met its burden of proof by preponderance of the evidence that the death resulting on 9/7/99 was causally related to the episode at WalMart on 8/31/99.  Accordingly, the Estate's request under RSA 281-A:2XI,XIII and A:26 is granted.

 

December 26, 2000

Date of Decision                                               J.M.V.  Swenson-Shea, Hearing Officer

 

JMVSS/mh

 

 

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