West Virginia Supreme Court Upholds LODD Benefits to Widow

The Supreme Court of Appeals of West Virginia ruled today that the widow of a firefighter who suffered a fatal heart attack after transporting a patient to the hospital is entitled to worker’s compensation dependent benefits.

FF-EMT Garry Rose of the McMechen Volunteer Fire Department, died on February 6, 2015. He collapsed at the Ohio Valley Medical Center after having transported a patient to the facility in a McMechen Fire Department Ambulance. The cause of death was listed as hypertension and arteriosclerotic heart disease. A post-mortem examination indicated a history of hypertension, high cholesterol, seizures, and a family history of heart attacks.

The fire department argued that Jeannette Rose was not entitled to dependent benefits because the cause of her husband’s death was his underlying medical condition, not his employment. Based on conflicting medical information, a worker’s comp claims administrator agreed with the fire department and denied her dependent benefits on March 23, 2015. She appealed that decision to the West Virginia Worker’s Compensation Office of Judges, who reversed the administrator’s ruling on June 23, 2017 and awarded her dependent benefits. On January 31, 2018 the Worker’s Compensation Board of Review affirmed the Office of Judge’s decision, prompting the fire department to appeal to the West Virginia Supreme Court of appeals.

In a unanimous decision, the court found no error in the decision of the Office of Judges as affirmed by the Board of Review.

  • The evidence of record indicates Mr. Rose had an exceptionally strenuous EMS call immediately prior to his death and it is just as likely as not that the physical and emotional exertion contributed to his sudden cardiac death.
  • For the foregoing reasons, we find that the decision of the Board of Review is not in clear violation of any constitutional or statutory provision, nor is it clearly the result of erroneous conclusions of law, nor is it based upon a material misstatement or mischaracterization of the evidentiary record.
  • Therefore, the decision of the Board of Review is affirmed.

Here is a copy of the decision: McMechen Volunteer Fire Dep_T v. Gaiser_ 2018 W. Va. LE

Many states have “heart and lung bills” that make heart attacks presumptively line of duty occurrences for firefighters, to avoid this kind of salt-to-the-wound insult to surviving spouses.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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