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Konichek v. Industrial Commission6/7/1990
Jones, the forensic pathologist who performed the autopsy, testified that although he did not know with absolute certainty why Konichek had died, his opinion was that it was due to cardiac dysrhythmia. The evidence was that Konichek was in good health and had no known pre-existing condition. The pathologist acknowledged that the fact that the body was decomposing made it difficult for him to determine the exact cause of death. He testified that if he had not learned that Konichek's father had died of a cardiac problem in his late forties or early fifties,
he would have listed the cause of death as unknown.
Many times during his examination, the doctor responded that he found it difficult to answer questions about a causal connection between Konichek's activities and his death because of his uncertainty about the exact nature of Konichek's death. He testified that when a predisposition to cardiac dysrhythmia exists, any kind of activity can be implicated in triggering an incident of dysrhythmia, such as vomiting, a sneeze or the Valsalva maneuver in having a bowel movement. The pathologist testified that the work Konichek was performing the day he died and the environmental factor of high temperatures could have contributed to the cardiac dysrhythmia that killed him. He also testified that the fact Konichek was alone at the time contributed to his death because persons suffering from cardiac dysrhythmia who go into ventricular fibrillation require immediate resuscitation to survive.
The ALJ accepted the pathologist's testimony that the cause of death was cardiac dysrhythmia. He then found, however: "After reviewing Dr. Jones' testimony and opinions, and having observed his demeanor, while testifying under oath, it is found that his testimony is speculative and equivocal." Those two findings are completely inconsistent.
Respondents contend that the unexplained death presumption does not apply in this case because the cause of death is not unexplained, pointing to the pathologist's determination that the probable cause of death was cardiac dysrhythmia. The presumption is applicable, however, even though the cause of death is known. In Bennett, supra, there was no question that the employee was killed by a gunshot. The court held that the presumption supplied the required employment connection between his activities and his death because of the lack of evidence as to the activities in which he was engaged immediately before he died. In that case, no one else was at the job site when the employee died.
" he principal practical reason for the unexplained-death rule the fact that death has eliminated the only witness who could supply the missing evidence demanded of his dependents." Larson, supra, at 3-119. See also Circle K Store # 1131 v. Industrial Commission, 162 Ariz. 560, 785 P.2d 80 (App.1989). This case is therefore like Bennett. No one can testify as to exactly what Konichek was doing at the time he suffered the attack of cardiac dysrhythmia because no one else was there. As Larson has observed, in jurisdictions such as ours that have
adopted the rule that unusual exertion need not be proved in heart cases[, i]t would seem to follow that employment contribution could be adequately established by showing that decedent was engaged in his usual exertions and that his usual exertions were medically capable of helping to induce the heart attack.
Larson, supra, at 3-120. Larson notes that a causal connection between the exertion and the heart attack must still be shown for the heart attack to be compensable.
In light of the pat
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