Opinion
CLAIM NO. D511762
OPINION FILED JULY 9, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE KEITH BLACKMAN, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by HONORABLE WALTER A. MURRAY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal to the Full Commission an Administrative Law Judge's opinion filed October 30, 2001. The Administrative Law Judge found that the claimant proved that he sustained a compensable heart attack in 1985. After reviewing the entire record de novo, the Full Commission affirms the opinion of the Administrative Law Judge.
I. HISTORY
Charles "Bud" Marshall, age 59, testified that he was a patrolman for the City of Jonesboro in 1985. The claimant described his work responsibilities as "general patrol of the city. I also helped with the range duties, where we did our firearm qualifications and training." The claimant testified:
Q. And as far as the work out there the day of this incident, do you recall what time you got out there?
A. Some time around 1 o'clock. . . .
Q. All right. Now, where were you that day physically at the range? What were you doing?
A. We were getting ready to have a officer survival school the next week. This happened on a Saturday, July the 20th. We had just built a rappel tower and didn't have safety rails around the top of it. And we were putting those around the top.
Q. What were you physically having to do yourself out there?
A. I had a half inch drill drilling holes through the top of the utility post. Having to put my weight and body into it to, you know, get it to bite and go through the post. And at times, you know, it would catch and spring out of my hands. I'd have to unplug it and back it out and do it again. . . .
Q. Were you sweating?
A. Yes, sir. Pretty bad. . . .
Q. And with regard to your work, the actual physical activity you were involved in, you said it was some sort of a railing that you put up on this?
A. Yes, sir.
Q. This tower, how tall a tower are we talking about?
A. It was 40 feet.
Q. And how did you get up to the top of it?
A. Had to climb up the outside. The first 20 feet just had steps and a utility pole. And once you got to the 20 foot level, then it had a ladder going the rest of the way to the top. With a platform, you know, to stand at the top.
Q. How many times did you go up and down that over the day? Do you have an approximation?
A. Five to ten times. . . .
Q. Tell us what happened, what first gave you the indication that there was a problem.
A. Well, I started having a tight feeling in my chest and my hands got to tingling, little numbness. I thought I was just getting too hot. And I told Sgt. Polley that I was getting too hot, and I climbed down to the second level. It was shaded there. . . . I stayed there probably five to ten minutes, and it wasn't getting any better. So I climbed on down the post and got in my pickup, started it. Turned the air on, and stayed in there, laying in the seat, probably ten minutes more. That wasn't doing any good, so I got out and told him he was gonna have to take me to the hospital.
The record indicates that the claimant was hospitalized on July 20, 1985 and was treated for an acute "myocardial infraction." The parties stipulated that the July 20, 1985 injury was accepted as compensable. Dr. R. O. Lawrence reported on August 15, 1985:
This is a 42 YO WM who works as a Police Officer for the Jonesboro Police Department. He presented to the ER on the day of admission with severe anterior chest pain, nausea, vomiting, diaphoresis, and shortness of breath, and was found to have an acute inferior wall MI. The duration of pain was only 1 ½ hours or less and he was seen in consultation with Dr. Hill on admission.
He was taken to the cath lab where left heart catheterization was performed and Streptokinase infusion was begun. This was successful in opening a very proximal right main coronary artery obstruction. . . .
He underwent cardiac rehab inpatient program during hospitalization and was discharged to continue the cardiac outpatient rehab program.
The final diagnosis on discharge was acute inferior wall myocardial infarction. Dr. Lawrence wrote to the respondent-carrier on September 17, 1985:
In answer to your questions, 1) Mr. Marshall's condition was not pre-existing, 2) the catherization was done post the infarction of July 20, and 3) Mr. Marshall should be able to return to full activity after this month.
Due to the seriousness of the illness, Mr. Marshall will need to be monitored on a period basis for preventive measures to avoid progression of his atherosclerotic disease. However, this should not prevent Mr. Marshall returning to full activity and he should be able to perform his occupational duties at the same level as prior to his infarction in July.
Dr. Lawrence reported the following in June 1995:
PROBLEM: Known atherosclerotic cardiovascular disease and recurrent chest pain of undetermined etiology. . . . The pt was recently hospitalized, apparently while I was away on vacation and treated for palpitations. At the time, he was having some chest pain, he was not cathed and did not have a thallium study. However, he had just had a treadmill within the 2 months that was interpreted as normal. At the time he had an MI, long ago, he was smoking, he has not smoked since. He follows a reasonable cholesterol diet, he exercises fairly regularly and this is the first time since his heart attack that he has had any chest pain.
Dr. Roger D. Hill, a specialist in internal medicine and cardiovascular diseases, provided an assessment in May 1996.
1. Coronary artery disease, status post MI, remote past.
2. Hypertension, currently controlled.
3. PVCs, benign, medical therapy not needed at this time.
4. History of hypercholesterolemia currently on Zocor therapy, cholesterol status being followed by this (sic) family physician and he recently had lipid profile done, the results of this will be obtained from Dr. Lawrence for our record as well. . . .
Mr. Marshall is to be continued on his current medical regimen without any recommendations or changes. He is to continue his current activities and current risk factor modification lifestyle. Mr. Marshall will be seen in return in one year or sooner if needed.
Dr. Hill recommended the following on April 21, 1997:
Mr. Marshall is to continue his current medical regimen. Mr. Marshall may require treatment of his hypertension in the future. He will continue to follow closely with Dr. Lawrence for close monitoring of his blood pressure. Mr. Marshall was asked to return to cardiology clinic in one year at which time a repeat GXT will be performed. Also, I will acquire copies of Mr. Marshall's most recent lipid profile for my records.
The claimant followed up with Dr. Hill in April 1998 and underwent diagnostic testing. The record contains the following assessment:
The above findings are consistent with mild hypertensive heart disease and prior mid basilar inferoseptal and mid basilar posterior infarct with scar formation. No residual ischemia.
After the respondents controverted further benefits, Mr. Marshall claimed entitlement to additional workers' compensation. The claimant contended that he was entitled to additional medical treatment "from April 1997 forward." The respondents contended that the claimant did not sustain a compensable injury; in the alternative, that additional medical treatment was not reasonably necessary.
Hearing before the Commission was held on March 8, 2001. At that time, the claimant asserted that the respondents had waived their contention with regard to compensability. In an opinion filed April 23, 2001, the Administrative Law Judge found that the claimant sustained a compensable injury in 1985, and that the claimant was entitled to additional medical treatment. The Full Commission subsequently remanded to the Administrative Law Judge for findings on the "waiver" issue raised by the claimant.
The Administrative Law Judge therefore filed another opinion on October 30, 2001. The Administrative Law Judge found that the respondents did not waive their rights to challenge compensability of the claim; the claimant does not appeal this finding. The Administrative Law Judge again found that the claimant sustained a compensable heart attack in 1985, and that the claimant was entitled to additional medical treatment. The respondents appeal to the Full Commission.
II. ADJUDICATION
This case is governed by Arkansas Law as existed prior to the enactment of Act 796 of 1993. A heart attack is compensable only if there is a causal connection between the heart attack and one's employment. The claimant must establish by a preponderance of the evidence that there is a causal connection between his employment and the heart attack. C.J. Horner Co. v. Stringfellow, 286 Ark. 342, 691 S.W.2d 861 (1985). When it is established that the employee was putting forth unusual exertion at the time of the heart attack it is ordinarily held that the requirement of causal connection has been met. Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). Absent "unusual exertion" the applicable test is whether the required exertion producing the injury is too great for the employee undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or contributing cause of the injury. Fowler, supra.
In the present matter, the Full Commission affirms the Administrative Law Judge's finding that the claimant proved by a preponderance of the evidence that he sustained a compensable heart attack in 1985. The claimant, who the Full Commission finds was a credible witness, was a patrolman and firearm expert for the Jonesboro Police Department in 1985. On the afternoon of July 20, 1985, in preparation for an upcoming officer training program, the claimant was installing safety rails outdoors on a 40-foot rappel tower. The claimant climbed the first 20 feet of the tower on steps and a utility pole. The claimant testified that "once you got to the 20 foot level, then it had a ladder going the rest of the way to the top." Once the claimant reached the top, he used a manual power tool to drill holes into utility posts. The claimant, sweating excessively, climbed to the top of the 40-foot tower five to 10 times that afternoon in order to perform his work for the respondents. The claimant testified, "I started having a tight feeling in my chest and my hands got to tingling, little numbness. I thought I was just getting too hot." The claimant climbed down to the second level and stayed in a shaded area for a few minutes, trying to recover and resume his work duties; the claimant then attempted to cool off in his vehicle, but it was necessary for the claimant to be transported to a hospital after his work on July 20, 1985.
The claimant was diagnosed with acute "myocardial infarction" on July 20, 1985. Based on the preponderance of evidence before us, the Full Commission finds that the claimant established that he was putting forth unusual exertion at the time of his myocardial infarction. The initial treating physician, Dr. Lawrence, reported that the claimant presented to the hospital on July 20, 1985 "with severe anterior chest pain, nausea, vomiting, diaphoresis, and shortness of breath, and was found to have an acute inferior wall MI."
The Concurring And Dissenting Opinion asserts that there is not a causal connection between the claimant's employment and his 1985 acute myocardial infarction. The Concurring And Dissenting Opinion asserts that such factors as smoking, high blood pressure, elevated cholesterol, borderline hypertension, and family history were the cause of the claimant's heart attack, not the claimant's unusual exertion arising out of his employment on July 20, 1985. However, none of the medical records following the claimant's heart attack identified as causative agents any of the purported factors described by the Concurring And Dissenting Opinion. Instead, the medical records corroborate the claimant's testimony regarding his physical condition following the claimant's work for the respondents on July 20, 1985. Dr. Lawrence, the treating physician, specifically informed the carrier in September 1985, "Mr. Marshall's condition was not pre-existing."
In addition, the Concurring And Dissenting Opinion cites a portion of Dr. Roger Hill's deposition testimony, where Dr. Hill "assumed" that cholesterol plaque ruptured and caused hemorrhaging, leading to the claimant's July 1985 heart attack. The respondents' attorney queried Dr. Hill:
Q. Do you have an opinion as to what caused the plaque to rupture and cause this heart attack?
A. I honestly don't know what, you know, specific cause led to the plaque rupturing.
The Concurring And Dissenting Opinion relies on this excerpted portion of Dr. Hill's testimony to contend that the claimant failed to establish a causal connection between the claimant's employment and his heart attack. The Commission is entitled to review the basis for a doctor's opinion in deciding the weight and credibility of the opinion and medical evidence. Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000). In the present matter, we note that Dr. Hill was not aware of the strenuous nature of the claimant's work duties on July 20, 1985 and the claimant's unusual exertion at the time of the claimant's myocardial infarction that day. On the contrary, Dr. Hill admitted that he did not know what the claimant had been doing on July 20, 1985 and believed that the claimant "was actually sedentary when he had the development of this heart attack or chest pain." In considering the preponderance of evidence before us, the Full Commission places minimal weight on any attempt to construe from Dr. Hill's testimony that the claimant failed to establish a causal connection between the myocardial infarction and his employment on July 20, 1985.
Based on our de novo review of the entire record, the Full Commission finds that the respondents did not waive their rights to challenge compensability of the claim. We find that the claimant proved by a preponderance of the evidence that he sustained a compensable heart attack in 1985. We find that the claimant proved that medical treatment he pursued since 1997 was reasonably necessary in connection with his compensable heart attack. The Full Commission therefore affirms in its entirety the opinion of the Administrative Law Judge.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).
For prevailing on this appeal before the Full Commission, the claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
I concur in part and dissent in part from the majority's opinion. Specifically, I concur in the majority's finding that the respondents have not waived their right to challenge compensability of a 1985 heart attack that was accepted as compensable and benefits were paid for 12 years. However, I must respectfully dissent from the majority's opinion finding that the claimant proved by a preponderance of the evidence that he sustained a compensable injury in the form of a heart attack in 1985.
My review of the evidence indicates that there is not a causal connection between the claimant's employment and his heart problems. Dr. Roger Hill, the claimant's treating physician, conceded that smoking was a major risk factor, as well as high blood pressure, high cholesterol, and family history. All of those things were present in the claimant's case. The claimant smoked for 32 years, he was borderline hypertensive that was untreated at the time of his heart attack, and the claimant's father had a myocardial infarction when he was in his fifties. Dr. Hill also testified that the did not know what led the plaque to rupture and cause the claimant's heart attack.
There is no evidence that the claimant's activities precipitated, contributed to, or caused his heart attack. The only specialist to testify was Dr. Hill, and he was unable to relate the claimant's heart attack to the claimant's work activities. Specifically, Dr. Hill was asked:
Q. Do you have an opinion as to what caused his heart attack on July 20, 1985?
Dr. Hill's response was:
A. The actual process that caused the heart attack, I assume was the cholesterol plaque that was present in the right coronary artery, which was the vessel that supplied blood flow to the bottom of the anterior surface of the heart. The cholesterol plaque that was there most likely ruptured, causing some hemorrhaging around the plaque or into the plaque area. And a blood clot formed there at that location and completely blocked the blood flow for a period of time. And that's actually what would, you know, to the heart attack that brought him to the hospital.
Q. Do you have an opinion as to what caused the plaque to rupture and cause this heart attack?
A. I honestly don't know what, you know, specific cause led to the plaque rupturing.
In addition, Dr. Hill was questioned as to what the claimant was doing on July 20, 1985, that would have caused or precipitated the rupture, and Dr. Hill stated that he did not have any idea. He thought that it was impossible to say what exactly caused the particular clot to rupture. A heart attack is compensable only if there is a causal connection between the heart attack and one's employment; and when it is established that the employee was putting forth unusual exertion at the time of the heart attack it is ordinarily held that the requirement of causal connection has been met. Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). Simply because the claimant was at work at the time the incident occurred does not mean that the incident is automatically compensable.Austin v. Highway #15 Water Users Assoc., 30 Ark. App. 60, 782 S.W.2d 585 (1990). The claimant has the burden of proving that a causal connection exists between his heart attack and his employment. Harper v. Henry J. Keiser Construction Co., 233 Ark. 398, 344 S.W.2d 856 (1961). C. J. Horner Co. v. Stringfellow, 286 Ark. 342, 691 S.W.2d 861 (1985). Further, the claimant must establish through testimony by medical experts that job-related stress or tension caused or contributed to a heart attack and the stress-induced heart attack must have a close temporal relationship with the claimant's stressful event at work in order to secure a finding of compensability. Terry Hitchcock v. CIGNA Ins. Co., FC Opinion filed August 6, 1987 ( D600576), and Donna Davis v. Cleburne Co., FC Opinion filed August 6, 1987 ( D601062).
Therefore, after considering the lack of evidence contributing the claimant's heart attack to a work-related incident, I find that the claimant has failed to meet his burden of proof. Accordingly, I must respectfully dissent from the majority's opinion.
_______________________________ JOE E. YATES, Commissioner