Scherf v. State ex rel. Department of Workforce Services

2015 WY 130, 360 P.3d 66, 2015 Wyo. LEXIS 146, 2015 WL 5578492
CourtWyoming Supreme Court
DecidedSeptember 23, 2015
DocketNo. S-15-0015
StatusPublished
Cited by1 cases

This text of 2015 WY 130 (Scherf v. State ex rel. Department of Workforce Services) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scherf v. State ex rel. Department of Workforce Services, 2015 WY 130, 360 P.3d 66, 2015 Wyo. LEXIS 146, 2015 WL 5578492 (Wyo. 2015).

Opinion

HILL, Justice.

[T 1] Robert Scherf died from a heart attack he suffered at work while servicing a front end loader. His widow Sharen, Scherf (Claimant) applied for worker's compensation death benefits, and those benefits were denied. The Office of Administrative Hearings (OAH) upheld the denial of benefits, finding that although the Claimant had proved the required causal link between the work exertion and the heart attack, she had failed to prove that the exertion itself was unusual or abnormal for an employee servicing heavy equipment. The district court affirmed, and this appeal followed. We find the OAH order to be unsupported by substantial evidence and reverse and remand for entry of an order awarding benefits.

ISSUES

[T2] Claimant presents two issues on appeal, which she states as follows:

1. Was the denial of death benefits for the Claimant as a result of the death of her husband from a coronary condition arbitrary, capricious, an abuse of discretion or to law?
2. Was the dénial of death benefits for' the Claimant as a result of the death of her husband from. a coronary unsupported by substantial evidence?

FACTS

[¶ 8] Robert Scherf began working for Mountain Construction Company shortly after the company was formed in 1999 or 2000. Mountain Construction does road construction, primarily highway paving and crushing, throughout Wyoming. During his employment with Mountain Construction, Mr. Scherf worked in a number of positions, including as a truck driver, loader operator, [68]*68and oiler. Mike Frost, president of Mountain Construction and one of its co-owners, described Mr. Scherf as one of the company's better hands.

[T4] Although Mike Frost considered Mr. Scherf one of the company's better hands, Mountain Construction, on June 8, 2011, fired Mr. Scherf. At that time, Mr. Scherf was working as a truck driver and had had a couple of mishaps, first pulling a truck loaded with asphalt into a ditch where it became stuck and shortly thereafter failing to open the tarps on a truck before the truck was reloaded. Nearly immediately after the company fired Mr. Scherf, Mike Frost offered to rehive Mr. Scherf in the position of oiler, which is the position responsible for maintaining the heavy equipment, including fueling the equipment every night, charging oil as needed, greasing equipment, and changing air filters.

[T5] Mr,. Scherf accepted the position of oiler but requested some time off before beginning work as an oiler. In making that request, Mr. Scherf told Mr. Frost that he had not been feeling well, and he felt that this was the reason for his mistakes. Mike Frost told him it was fine to take the time he needed to heal. Mr. Scherf then began work as an oiler on Monday, June 18, 2011, at a jobsite outside Greybull, Wyoming.

[¶ 6] When Mr. Scherf was out of town for work, it was his routine to talk at least daily with his wife (Claimant), who was home in Lander, Wyoming. In keeping with that routine, Mr. Scherf called Claimant after he completed work on Thursday, June 16, 2011. Claimant described that conversation:

A. * * * Then he called me that Thursday, and told me that he had pulled some rib muscles. He told me that this loader he was servicing was really hard to get the panel out and put it back in. He said, I pulled some rib muscles.
Q. Did he say why it was really hard to pull out?
A. He said it was just really crusted up with mud and stuff.
Q. Did he tell you anything else about what he felt at the time that he was doing this? You said he felt like he pulled some ribs. Did he tell you how else it felt?
A. He said, I feel very nauseated and light-headed.
- Q. Had he ever pulled ribs before?
A. Yes. e
Q. And had he ever had a heart attack before?
A. No.
Q. So what did he tell you that he did then?
~ A. He said that Stu Eckhart drove in, and he had gone to Stu and asked him if he wanted him to service his vehicle. He said, well, you might as well, so he did that. Then he got in his truck and he left. He said that he felt nauseated and lightheaded and he stopped on the side of the. road.
Stu had started-when he seen Bob, Bob just stuck his hand out the window and told him to go on because he could see it was Stu. He stopped about two or three times he said, and then he got to the camper. to ©
Q. Going back to when he was working on the loader and he had to open up the panel, did he say how much exertion-how hard it was?
A. It was very hard, he said, to get that out, and then he said, but mostly shoving it back in.> He said that's when the pain came, when he was getting it back in, t

[¶ 7] Claimant called Mr. Scherf the following morning, and he told her that he did not feel well andfliavas not going to work that morning. Claimant stated he was not very coherent and hung up on her. Claimant then contacted a co-worker, who sent his daughter and grandson to check on Mr. Scherf. Mr. Scherf told them he just needed to sleep and asked that they leave. Claimant then contacted Mike Frost and asked him to check on her husband. Mr. Frost called Mr. Scherf, who told him he thought he had pulled a muscle in his chest or back and "that if everybody would just leave him alone, he could get some rest and he would be fine." Mr. Frost remained concerned so he visited Mr. Scherf in person. Mr. Frost found that [69]*69Mr. Scherf looked tired and sick and did not make much sense. Mr. Frost suspected a heart attack and. called an ambulance.

[T8] Mr. Scherf was taken by ambulance to the hospital in Powell, Wyoming, where he was diagnosed with an "Acute ST elevation myocardial infarction." He was then transferred to Wyoming Medical Center in Cas-per, Wyoming. Mr, Scherf was treated without success at Wyoming Medical Center and died at 11:86 p.m. the evening of June 17, 2011. The cause of death was acute myocardial infarction with cardiogenic shock.

[¶ 9] On February 3, 2012, Claimant submitted an injury report to the Wyoming Workers' Safety and Compensation Division (Division). On March 5, 2012, the Division issued a final determination denying benefits on the grounds that the myocardial infarction was not a compensable injury and there was no indication that the work being performed by Mr. Scherf when he suffered his attack was unusual or abnormal for his job. Claimant objected, and the matter was referred to the OAH for hearing.

[M10] In support of her claim that the work Mr. Scherf was performing when he had a heart attack directly caused the attack, Claimant submitted the expert opinion of cardiologist, John Rudoff, MD. Dr. Rudoff opined 1.

__ . «Mr. Robert Scherf was an approximately 68-year-old man, a long-time smoker, with chronic hypertension, hyperlipidemia, and renal insufficiency. Approximately 8:80 pm, on June 16, 2011, while doing heavy physical work for his employer, consisting of straining to open and shut an access panel while doing maintenance on a 980G Loader, he suddenly felt the abrupt onset of pain shooting through his chest. He managed to finish that work activity and a subsequent work activity. He was noted to be.

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2015 WY 130, 360 P.3d 66, 2015 Wyo. LEXIS 146, 2015 WL 5578492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scherf-v-state-ex-rel-department-of-workforce-services-wyo-2015.