At the end of 2016, the Department of Labor issued a decision denying summary judgment for Claimant in Eixenberger v. Rapid City Winair Company and Travelers Ins. Co., HF No. 128, 2014/15, citing that several factual issues still needed to be hashed out and summary judgment was not proper.

Eixenberger worked for Rapid City Winair Co. as a delivery driver and as warehouse personnel. He pulled products and loaded trucks, and also drove the delivery truck.  On July 8, 2013, Eixenberger was loading the truck on an 87-degree day, and earlier that day told a co-worker that he felt sick to his stomach. Later that afternoon, a co-worker found Eixenberger lying next to the truck, unresponsive. Emergency medical services were called and he was rushed to the hospital, but unfortunately passed away due to what was later determined to be a heart attack. The emergency room doctor, Dr. Newman, opined Eixenberger’s work activities on July 8, 2013, were a major contributing factor in his heart attack, stating that the physical exertion that day caused the heart attack.

Several facts that Dr. Newman relied upon in reaching that conclusion were determined by the Department to be disputed – including the amount of physical exertion, including how much lifting was going on and the pace at which Eixenberger was working, Eixenberger’s physical appearance prior to the collapse and statements he made to co-workers. Dr. Newman conceded that his opinion would change if Eixenberger’s physical exertion was less than he understood it to be at the time he gave his opinion.

Employer and Insurer offered the opinion of Dr. Del Core, a board-certified cardiologist from Creighton Medical School. Dr. Del Core ultimately testified that the heart attack was not necessarily related to Eixenberger’s work activities. The Department noted that Dr. Del Core assumed that Eixenberger was not performing extreme physical activity on the day that he died, and pointed out that the level of exertion was a disputed fact at that heart of the case. In denying Eixenberger’s motion for summary judgment, the Department stated that “whether…unusual activity occurred that day is disputed, and a hearing will be needed to resolve the matter.”

This decision highlights the importance of a factual investigation after an injury or death, including speaking to all the witnesses. It also highlights the importance of an employer keeping a pulse on their employees and the tasks that they are performing on any given day and to ensure proper documentation of those tasks where feasible. These cases can be won or lost based on the expert testimony, and the law provides that expert testimony is only as good as the facts upon which it is based – so make sure you have all the facts.