OAH 15-2400-19393-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE

COMMISSIONER OF PUBLIC SAFETY

In the Matter of a Public Safety Death Benefit for Ryan M. Sorek

FINDINGS OF FACT, CONCLUSIONS AND ORDER

A hearing was held before Administrative Law Judge Beverly Jones Heydinger on April 16 and 17, 2008, at the Office of Administrative Hearings, 600 North Robert Street, Saint Paul, Minnesota, pursuant to a Notice and Order for Prehearing Conference and Hearing, issued on December 28, 2007. The hearing record closed upon the submission of the final post-hearing memoranda on June 24, 2008.

Appearances:

Bruce P. Grostephan, Attorney at Law, Peterson, Engberg & Peterson, appeared on behalf of Jennifer Sorek and Danika Sorek (Applicants).

Emerald Gratz, Assistant Attorney General, appeared on behalf of the Commissioner of Public Safety.

STATEMENT OF THE ISSUES

Was Ryan M. Sorek killed in the line of duty, as that term is defined in Minnesota Statute section 299A.41, subd. 3[1], or did he die of natural causes?

Summary: Applicants have demonstrated by a preponderance of the evidence that Mr. Sorek did not “die of natural causes” and his child and spouse are entitled to the Public Safety Officer Death Benefit authorized under Minn. Stat. § 299A.44.

Pursuant to Minn. Stat § 299A.43, this is a final order, subject to review by Petition for a Writ of Certiorari pursuant to Minn. Stat. §§ 14.63-68.

Based on the evidence in the hearing record, the Administrative Law Judge makes the following:

FINDINGS OF FACT

Procedural History

1. On or about October 17, 2007, Jennifer Sorek, Ryan Sorek’s widow, filed an application for a public safety officer death benefit, authorized under Minn. Stat. § 299A.44, with the Commissioner of Public Safety on behalf of herself and her daughter (Applicants).

2. By letter dated November 19, 2007, the Commissioner of Public Safety (Commissioner) denied the application and notified Ms. Sorek that she was not eligible for the benefit because her husband had died of natural causes, and was not killed in the line of duty.

3. By letter dated December 4, 2007, Applicants appealed the Commissioner’s denial of the public safety officer death benefit. A prehearing conference was held on February 28, 2008, and the dates were set for hearing.[2] The hearing was conducted on April 16 and 17, 2008.

Stipulated Facts

4. Ryan M. Sorek was a public safety officer, as that term is defined in Minn. Stat. § 299A.41. He was 25 years old at the time of his death. The Respondent, Jennifer Sorek was his spouse and eligible to apply for the public safety officer death benefit on behalf of herself and their daughter, Danika.

5. Mr. Sorek was at work as a paramedic for Hennepin County Medical Center on March 8, 2007, until approximately 11:30 p.m. He was found dead at home on March 9, 2007, at approximately 8:30 a.m. His cause of death was lymphocytic myocarditis. Although the time of death is not known, the responding officer noted that rigor mortis and some livor mortis had set in. It was estimated that Mr. Sorek had been dead for perhaps five to six hours when he was found.[3]

Findings of Fact

6. The Hennepin County paramedics respond to calls for emergency medical services of many types and at many locations. They must quickly assess and diagnosis a broad range of critical incidents, and determine and administer appropriate medical care, including basic and advanced life support techniques.[4] Time is of the essence, and the conditions under which paramedics work may be dirty, confined, noisy or present other challenges to the performance of their duties. Paramedics are frequently in contact with people who are ill, injured, intoxicated or under the influence of other drugs, and paramedics are frequently exposed to body fluids, including blood, vomit, urine, feces and saliva. It is a physically demanding job that ordinarily requires lifting, restraining or carrying ill or injured people, and may require extracting them from difficult places and carrying them up or down stairs or on difficult terrain. Paramedics frequently carry heavy equipment to aid the victim. The job is stressful because of the physical effort and because of the time pressure and the uncertainty and range of circumstances surrounding each call for assistance.[5]

7. Between January 1, 2006 and March 10, 2007, Mr. Sorek responded to 1484 emergency calls, including seven during his last shift.[6]

8. Mr. Sorek’s pre-employment health screening was completed on August 16, 2005. At that time, there was no evidence of any heart disease or that his heart was functioning improperly.[7] On September 18, 2006, Mr. Sorek went to his medical clinic with complaints of left ear pain and decreased hearing, and an antibiotic was prescribed. On November 7, 2006, Mr. Sorek went to the clinic with complaints of ear pain and a sore on his left tonsil. He told the physician that he had been exposed to sick persons at work. Again, the physician prescribed an antibiotic.[8]

9. Mr. Sorek had flu-like symptoms during January or February, 2007, including vomiting and diarrhea. He did not go to the doctor, but did leave work early one day because of his illness.[9]

10. During his shift on March 8, 2007, Mr. Sorek responded to two calls that were particularly stressful. At 5:26 p.m., he and his partner responded to a call of a person suffering from a drug overdose. The paramedics found a man sitting with an empty syringe still in his left arm, unconscious, and breathing about once per minute. The paramedics opened the man’s airway, administered oxygen, inserted an IV line, and administered NARCAN, an antidote for the probable drug overdose. The paramedics extricated the patient from the back seat of a car, lifted him onto a stretcher and transferred him to Hennepin County Medical Center. The paramedics were back in service, ready to respond to another call, at 6:15.[10]

11. Later that shift, at 8:44 p.m., Mr. Sorek and his partner responded to a call to assist a woman who had been hit in the face and stabbed with a butcher knife. The victim was lying in a hallway, upset and crying, and the paramedics could not gain access to the victim immediately because the police were concerned that the assailant was still in the area. The paramedics inserted an IV line, carried to the victim to the ambulance by stretcher, and transferred the victim to Hennepin County Medical Center. The call was completed and they were back in service at 9:33.[11]

12. At approximately 10:30 p.m., Ms. Sorek spoke to her husband by telephone from California and arranged for him to pick her up at the airport early the next morning. He expressed no concerns about his health.[12] Mr. Sorek left work at approximately 11:30 p.m., and told his partner, Mr. Johnson, that he was tired, going home to get some rest, and looking forward to seeing his wife. Mr. Sorek did not tell Mr. Johnson that he felt ill, nor did Mr. Johnson observe any signs of illness.[13]

13. Ms. Sorek’s airplane arrived at approximately 6:00 a.m. on March 9, 2007; her husband did not meet her, and her calls to him were unanswered. Ms. Sorek called her mother, Cynthia Olson; Ms. Olson went to the Sorek home but was unable to get in. Ms. Olson went to the airport and picked up her daughter and granddaughter. When the women returned to the Sorek home, Ms. Sorek found her husband unconscious on the floor in the kitchen. Ms. Olson called 911, but paramedics’ efforts to resuscitate Mr. Sorek were unsuccessful.[14]

14. An autopsy was performed on Mr. Sorek on March 9 and 10, 2007, and the cause of death was determined to be lymphocytic myocarditis, a heart condition that led to Mr. Sorek’s sudden cardiac arrest. The autopsy report stated: “There is at most 20% narrowing of the left anterior descending coronary artery by atherosclerosis.”[15] Although there was evidence of some narrowing of the coronary artery by atherosclerotic plaque, typical of coronary artery disease, the degree was not considered clinically significant, and there was no evidence that it contributed to his cardiac arrest.[16] The death certificate listed the cause of death as “natural,” by lymphocytic myocarditis.[17]

15. Dr. Brian Mahoney, Medical Director, Hennepin County Medical Center Emergency Medical Services, conducted a review of the medical records and autopsy findings for Mr. Sorek and concluded that, to a reasonable medical certainty, Mr. Sorek suffered sudden cardiac death due to lymphocytic myocarditis. On May 15, 2007, Dr. Mahoney stated that Mr. Sorek’s job would have frequently exposed him to the viruses that caused lymphocycytic myocarditis, and that the two major transports involving intense physical activity on the evening prior to Mr. Sorek’s death contributed substantially to the exacerbation of Mr. Sorek’s myocarditis, and his sudden death.[18]

16. Dr. Shannon Mackey-Bojack[19] performed a microscopic examination and dissection of Mr. Sorek’s heart and produced a report on May 24, 2007. Based uon her examination, Dr. Mackey-Bojack concluded that Mr. Sorek’s heart showed multiple foci of active lymphocytic myocarditis and myocyte injury.[20] She also noted that his left circumflex coronary artery was narrowed 40 to 50 percent by atherosclerotic plaque, not a level considered clinically signficant.[21] She classified Mr. Sorek’s death as “sudden and unexpected.”[22] In a letter dated May 31, 2007, Dr. Mackey-Bojack stated: “It is my opinion to a reasonable degree of medical certainty that Mr. Sorek died as a result of sudden cardiac arrest due to lymphocytic myocarditis. This cardiac condition fulfils the definition of “heart attack” by causing “sudden cardiac arrest.”[23]

17. Samples from Mr. Sorek’s heart were sent to the Centers for Disease Control and Prevention (CDC). The testing showed the presence of enterovirus, with the highest presence of group B enteroviruses.[24]

18. Dr. Edward L. Kaplan, professor of pediatrics at the University of Minnesota Medical School and adjunct professor in the division of epidemiology at the University of Minnesota School of Public Health, testified at the hearing about lymphocytic myocarditis.[25] The deposition of Dr. Shannon M. Mackey-Bojack, John Nasseff Heart Hospital, Saint Paul, was also received into evidence.[26] The two physicians were in agreement about the nature of lymphocytic myocarditis, its cause, and its effect on the heart.

19. Myocarditis is an inflammation of the myocardium, the muscular tissue of the heart. Lymphocytic myocarditis is the inflammation of the myocardium, caused by a virus or some other unknown agent that inflames the myocardium and attracts the lymphocytes. The lymphocytes are attracted as a response to the injury to the myocardium, the viral destruction of the patient’s heart muscle cells.[27] Destruction of the heart muscle cells causes ventricular arrhythmia which may lead to sudden cardiac arrest and death.[28] There are many different viruses that may cause myocarditis and many of them are commonly present in the community.[29]

20. Mr. Sorek’s lymphocytic myocarditis was caused by exposure to an enterovirus,[30] which is commonly present in the community,[31] second in frequency only to the Rhinovirus, associated with the common cold. Despite the widespread presence of the enterovirus, many people who contract it show no symptoms.[32] Some people affected by it experience flu-like symptoms and the virus goes away; very few people who contract the virus develop myocarditis. The incidence of mycarditis is less than 0.5 instances per 100,000 population, per year.[33] Of those who contract myocarditis, most do not die from it.[34] Typically the virus is present for a short time, a number of days, with varying degree of damage to the heart.[35] Of those who die, many have no symptoms associated with a heart attack prior to their sudden death, which may occur at rest or during activity.[36]

21. It is unlikely that an enterovirus would be transmitted by saliva or respiration. It is commonly found in the gut and could be transmitted through exposure to vomit or feces.[37]

22. If myocarditis is diagnosed, a patient is advised to refrain from strenuous physical activity because the heart muscle is damaged.[38]

23. The physicians disagreed about whether a paramedic was more likely to contract or die from lymphocytic myocarditis than persons who were not in public safety positions.[39] Perhaps because of the few deaths from lymphocytic myocarditis, there is no study of it among health care providers, and unlike other diseases contracted by health care providers such as Hepatitis B, there are no special precautions taken to prevent its occurrence. Although health care providers may be more frequently exposed to the virus, there is no evidence that the incidence of lymphocytic myocarditis is any greater in health care providers than in the general population, nor is there any evidence that they are more likely to die from it.

24. A paramedic is more likely to come into contact with the vomit or feces of others than most persons in the conduct of their daily affairs. Also, a paramedic for Hennepin County Medical Center will routinely act under time pressure and stressful circumstances involving injury, illness and death, and will routinely exert physical effort in the performance of the job. Such physical and emotional strain can increase the damage to the heart when myocarditis is present. Thus, paramedics’ exposure to the risk of contracting an enterovirus and aggravating myocarditis through physical exertion is increased by the nature of their job duties.

25. The Applicants received workers’ compensation and Public Employee Retirement Association (PERA) benefits. The PERA benefits are not taxed to the Respondent because PERA determined that Mr. Sorek died in the line of duty.[40]

Based on these Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

1. The Administrative Law Judge has the authority to consider the application for the police office death benefit pursuant to Minn. Stat. § 299A.43 and § 14.50.

2. The Department of Public Safety has complied with all relevant procedural requirements and has given proper notice of the hearing.

3. The surviving spouse and a dependent child of a public safety officer employed within Minnesota who is killed in the line of duty are eligible to receive $100,000, as adjusted, from the public safety officer’s benefit account. Jennifer Sorek is the surviving spouse of Ryan Sorek; Daneka Sorek is the surviving dependent child of Ryan Sorek.[41]

4. At the time of his death, Ryan Sorek was a paramedic for Hennepin County, and met the definition of a “public safety officer,” pursuant to Minn. Stat. § 299A.41, subd. 4 (7) and (8).

5. For the purpose of determining eligibility for the public safety officer death benefit, “killed in the line of duty” does not include death from natural causes.[42]

6. Ryan Sorek’s death from lymphocytic myocarditis within a few hours of leaving his shift at 11:30 p.m. constituted death in the line of duty, and not death from natural causes.

Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:

ORDER

It is hereby ordered that the Application for Death Benefits is GRANTED.

Dated: July 11, 2008

s/Beverly Jones Heydinger

Beverly Jones Heydinger

Administrative Law Judge

Reported: Digitally recorded: A-bjh-04162008

Partial transcript prepared

MEMORANDUM

The outcome of this case turns on the determination of whether Mr. Sorek’s death from lymphocytic myocarditis was a death from natural causes. It is a close question. However, in reviewing the statutory history of the various provisions that govern death benefits for persons such a paramedics engaged in hazardous public employment, and the case law interpreting those provisions, it is clear that the Legislature and the Courts have broadly interpreted the provisions to award benefits to the survivors of such employees.

The low incidence of death from lymphocytic myocarditis and the frequency of exposure by the general public to the enteroviruses that triggered Mr. Sorek’s myocarditis complicate the analysis of this case. There are no scientific studies that demonstrate that paramedics are more susceptible to enteroviruses and no studies that demonstrate that a paramedic who contracts myocarditis is more likely than a member of the general public to die from the disease. However, the Applicants have demonstrated that paramedics have an increased risk of exposure to enteroviruses from a wide range of persons. The Applicants have also demonstrated that strenuous exercise, inherent in the work of a paramedic employed by the Hennepin County Medical Center, will hasten the progress of myocarditis. Although death may occur when the person is at rest or exercising, persons with this diagnosis are advised to refrain from physical activity.

Although Mr. Sorek was not specifically tested for myocarditis prior to his employment, nor would such testing be performed on a seemingly healthy person,[43] there was no evidence that he had any pre-existing heart condition at the time of his employment. Moreover, the autopsy of his heart showed that it was otherwise healthy. According to Dr. Kaplan, a person who contracts lymphocytic myocarditis will ordinarily fully recover within a matter of days. It is extremely rare for a person to die from the disease, but those who do, will die within a relatively short time period, often with no symptoms. Thus, it is clear that Mr. Sorek contracted the enterovirus and myocarditis during the time of his employment with Hennepin County Medical Center.

The Department claims that there is no evidence that lymphocytic myocarditis is an inherent risk of paramedic employment and the benefits should be denied. It relies on Kramer v. Peace Officer’s Benefit Fund.[44] In that case, a police officer fell down the steps at work while engaging in routine administrative duties, suffered a heart attack and died some years later. Under those facts, the Supreme Court found that the term “killed in the line of duty” should be interpreted to mean a “death resulting from performance of those duties peculiar to a peace officer that expose the officer to the hazard of being killed,”[45] and denied benefits. The Department claims that the Applicants failed to show that the paramedic’s job exposed him to any greater hazard of dying from lymphocytic myocarditis than other persons. However, the subsequent decision in Johnson v. Plainview[46] rests on facts that are more similar to those presented in this case, and more broadly states the guiding principle of liberally interpreting the statute to assure that persons engaged in protecting the public are compensated for the greater risks that they face of physical injury and death.

In Johnson v. City of Plainview, the Supreme Court interpreted the definition of “killed in the line of duty” in the Peace Officers Benefit Fund statute in a case involving two firefighters who died from heart attacks that occurred while they were fighting fires. The statute stated: “killed in the line of duty’ does not include deaths from natural causes.” The Fund argued that the “natural causes” language was meant to exclude all deaths resulting from some preexisting disease process present at the time of death, and that only deaths caused solely by an external force would qualify under the statute. The Supreme Court disagreed with the logic of this interpretation. It found that the two firefighters had been exposed to the physical and emotional stress associated with firefighting and that those activities were a contributing factor in the heart attacks.[47] The Supreme Court espoused the general principle that the Fund was established to recognize the sacrifices made by peace officers performing hazardous work in protection of the public, and that “any death which results in part from the performance of such work should qualify for Fund benefits.”[48] The Supreme Court also commented that if the Legislature disagreed with the Court’s interpretation it could enact new clarifying legislation.

In 1992, the Legislature amended the definition of “killed in the line of duty” to include accidental death when the peace officer was acting in the course and scope of the officer’s duties, apparently in response to the ruling in Kramer, expanding eligibility to assure that persons who died from even an accidental injury while working could receive the death benefit. There were no apparent efforts by the Legislature to narrow the scope to reverse or further limit the result in Johnson, that death from a heart attack was not death from “natural causes.”

The Department argues that Johnson can be distinguished because each of the two claimants in that case had heart attacks while at the scene of the fire. It argues that the same distinction explains the Commissioner’s determination to award benefits following the death of Hennepin County paramedic James Blanchard who experienced symptoms of a heart attack while on duty and to deny benefits for Mr. Sorek’s death. Here, Mr. Sorek did not die until he returned home and apparently did not experience any illness or symptoms of illness while at work. However, the evidence clearly shows that Mr. Sorek died no more than a few hours after leaving work, and that death from lymphocytic myocarditis may occur without any warning. The testimony concerning the pathology of lymphocytic myocarditis rules out the possibility that Mr. Sorek could have developed myocarditis and died within a few short hours. Mr. Sorek’s departure from work and his death were so close in time that it would be an artificial distinction to deny benefits because he was not acting in the course of his employment at the time of his death.[49]

The Department also argues that the Applicants failed to show either that Mr. Sorek contracted the enterovirus while at work or that his work as a paramedic caused or hastened his demise. The Department is correct that the evidence of causation is inconclusive. But it is clear that Mr. Sorek was at greater risk of exposure to enterovirus than a person who did not engage in the profession of a paramedic, particularly because of his greater exposure to vomit and feces, and that the physical exertion required in the ordinary performance of his duties would have increased the damage caused by lymphocytic myocarditis. As the Supreme Court stated in Johnson, the award of this benefit should not be limited to deaths caused solely by an external force: any death which results in part from the performance of such work should qualify for the Fund’s benefits.[50] The intent of the statute is to provide some compensation to the dependents of public safety officers who die because of the unusual risks they face in their work.[51] Thus, although the causation is not clear, the Applicants have shown that a paramedic’s exposure to the conditions that lead to the admittedly rare death from lymphocytic myocarditis is great.

The Applicants’ arguments that the PERA and Workers’ Compensation eligibility determinations dictate the outcome of this determination are not persuasive. PERA and Workers’ Compensation benefits are intended to assure that lost wages and medical expenses are covered. The Public Safety Officers Death Benefit is an entirely separate type of compensation, unrelated to length of service, wages or expenses associated with the loss of the deceased. It is a benefit that is intended to show public support for the survivors of public employees who have faced physical risk to protect the public. As such, the interpretation of other statutes is not directly relevant. However, those provisions do demostrate that the Legislature has attempted to enact remedial legislation to award benefits more broadly to persons who perform public safety occupations.

Thus, in interpreting the Public Safety Officer Benefit statutes, one must be mindful of the directive to interpret the law to effectuate the Legislature’s intent, taking into account its necessity, the object it seeks to attain, and its consequences.[52] In this case, it is consistent with those principles to award a benefit to the widow and dependent child of a very young man who died suddenly and unexpectedly after returning home from his work as a paramedic, a job that exposed him to a broader number and range of enteroviruses than one might ordinarily encounter, and required a level of physical and emotional stress and physical exertion that would exacerbate lymphocytic myocarditis. Although it cannot be said with certainty that Mr. Sorek contacted the enterovirus at work or that he would not have died but for the exertion of his job, it can be said that his position significantly increased both risks. Under such circumstances, the award of the Public Safety Officer Benefit is appropriate.

B. J. H.

[1] Unless otherwise noted, all Minnesota statutory references are to the 2006 edition.

[2] Prehearing Order, February 29, 2008. The date for the start of the hearing was later advanced one day by agreement of the parties.

[4] See e.g. Ex. 11, attached Hennepin County Job Class Specifications, Paramedic; Test. of Dennis Combs, HCMC paramedic.

[10] Ex. 18; Test. of David Rogers; Test. of B. Johnson.

[14] Test. of J. Sorek; Ex. B; Test. of Lee Meyer.

[19] Ex. 1, Curriculum Vitae for Shannon M. Mackey-Bojack, M.D.

[25] Dr. Mahoney’s testimony and Dr. Kaplan’s testimony have been transcribed and added to the record. See also, Ex. C. (Dr. Kaplan’s curriculum vitae).

[28] Test. of Mahoney at 21; Test. of Kaplan at 111-113; Ex. 6 at 10 (Mackey–Bojack).

[29] Test. of Kaplan at 70-72; Ex. 4; Ex. 6 at 12-13 (Mackey-Bojack)

[31] Ex. 6 at 12-13 (Mackey-Bojack); Test of Mahoney at 39; Test. of Kaplan at 71-72.

[32] Test. of Kaplan at 73; Test. of Mahoney at 41.

[33] Test. of Kaplan at 116; Test. of Mahoney at 41.

[34] Test. of Kaplan at 117; Ex. 6 at 32 (Mackey-Bojack); Test. of Mahoney at 51-52.

[36] Ex. 4; Ex. 6 at 35 (Mackey-Bojack); Test. of Kaplan at 93-94.

[38] Test. of Kaplan at 92-93,109, 112; Test of Mahoney at 52-53.

[39] Compare Test. of Kaplan at 81 with Test. of Mahoney at 25 and Ex. 4 (Opinion of Mackey-Bojack).

[49] See e.g., 42 U.S.C. § 3796 (k) (1) (death of a pubic safety officer from a heart attack within 24 hours of participating in stressful or strenuous emergency medical services qualifies for federal public safety officer survivor benefits).

[51] See also Ondler v. Peace Officers Benefit Fund, 289 N.W.2d 486 (Minn. 1980) (finding unconstitutional the exclusion from benefits for death from heart attacks), and Minn. Stat. § 176.011, subd. 15 (broadly expanding the workers’ compensation definition of presumed “occupational disease” for paramedics that contract an infectious disease).