Estate of Jerry Slaughter v. City of Hampton and Municipal League WC Trust
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DIVISION I
CA 06-1077
April 25, 2007
ESTATE OF JERRY SLAUGHTER
APPELLANT
APPEAL FRO M THE ARKANSAS
WORKERS’
COMPENSATION
COMMISSION
[NO. F500501]
V.
CITY
OF
HAMPTON
AND
MUNICIPAL LEAGUE WC TRUST
APPELLEES
REVERSED AND REMANDED
SARAH J. HEFFLEY, Judge
In this workers’ compensation case, Jerry Slaughter was exposed to chlorine gas on
November 17, 2004,1 during the course and scope of his employment with appellee, the City of
Hampton. On December 22, he was admitted to the hospital, where testing revealed that he was
infected with the HIV virus and that he also had Chronic Obstructive Pulmonary Disease (COPD)
in the form of emphysema. At the time of the accident, Slaughter had been engaged to and was
living with La’Ronda Slaughter. They were married in a ceremony performed at the hospital on
January 5, 2005. Slaughter died ten days later. He was thirty-five years old.
La’Ronda Slaughter, as executrix of Slaughter’s estate, filed a claim with the Arkansas
Workers’ Compensation Commission seeking temporary-total disability benefits and the payment
of medical expenses, funeral expenses, and spousal death benefits. The Commission denied this
claim based on a finding that Slaughter’s work-related accident was not the major cause of his
1
There was some dispute as to the actual date of the occurrence, but the parties stipulated
that the accident took place on this date.
physical harm, as required by Ark. Code Ann. § 11-9-114 (Repl. 2002). Appellant contends on
appeal that the Commission’s decision is not supported by substantial evidence. We agree and
reverse and remand.
The applicable statute in this case, Ark. Code Ann. § 11-9-114, governs the compensability
of heart and lung injury or illness. It provides:
(a) A cardiovascular, coronary, pulmonary, respiratory, or
cerebrovascular accident or myocardial infarction causing injury,
illness, or death is a compensable injury only if, in relation to other
factors contributing to the physical harm, an accident is the major
cause of the physical harm.
(b)(1) An injury or disease included in subsection (a) of this section
shall not be deemed to be a compensable injury unless it is shown
that the exertion of the work necessary to precipitate the disability
or death was extraordinary and unusual in comparison to the
employee’s usual work in the course of the employee’s regular
employment or, alternatively, that some unusual and unpredicted
incident occurred which is found to have been the major cause of
the physical harm.
(2) Stress, physical or mental, shall not be considered in
determining whether the employee or claimant has met his or her
burden of proof.
The term “major cause” means more than fifty percent of the cause, which must be established by
a preponderance of the evidence.
Ark. Code Ann. § 11-9-102(14)(A) & (B) (Supp. 2005).
In appeals involving claims for workers’ compensation, we view the evidence in a light most
favorable to the Commission’s decision and affirm if it is supported by substantial evidence. Freeman
v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Substantial evidence is that relevant
evidence that a reasonable mind might accept as adequate to support a conclusion. Coleman v. Pro
Transportation, Inc., ___ Ark. App. ___, ___ S.W.3d ___ (Feb. 7, 2007). We will not reverse the
Commission’s decision unless we are convinced that fair-minded persons with the same facts before
them could not have reached the conclusions arrived at by the Commission. Freeman v. Con-Agra
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Frozen Foods, supra. We defer to the Commission on issues involving the weight of the evidence
and credibility of the witnesses, but while the Commission’s findings on these matters are insulated
to a certain degree, its decisions are not so insulated as to render appellate review meaningless. Lloyd
v. United Parcel Service, 69 Ark. App. 92, 9 S.W.3d 564 (2000).
The record shows that Slaughter worked in the city’s water department. His duties included
changing 150-pound cylinders of chlorine gas that were housed in a small building beneath the city’s
water tower. On November 17, 2004, Slaughter was performing this task with fellow employees
Buddy Hannegan and Monroe Slaughter, his father. The city had provided only one mask for the
three of them to wear, and it was worn that day by Monroe. Unbeknownst to the men, the valve
to the new cylinder being installed had a crack in it, and when Slaughter opened the valve, chlorine
gas spewed directly in his face. All three were overcome by the gas and ran out of the building, but
according to Monroe and Hannegan, Slaughter bore the brunt of the leak. Outside, Slaughter was
bent over gagging, coughing, and gasping for breath. Later his eyes became irritated and mucus ran
from his nose. After the building aired out, Monroe and Hannegan replaced the cylinder while
Slaughter remained outside. As it was quitting time, they left for home. Slaughter declined
Hannegan’s offer to drive him home.
Slaughter returned to work the next day. Monroe testified that Slaughter was not feeling
well and was having trouble breathing. Slaughter told him that his throat was sore and felt like it
had a knot in it. Monroe said that, because Slaughter was feeling so poorly, he and Hannegan did
not let him do much work. He considered Slaughter to be a hard worker, but said that he never
worked hard again. He did not believe Slaughter worked much after the accident, and he thought
Slaughter also took all of his sick leave and vacation time following the accident. Monroe testified
that Slaughter was not the kind of individual who went to the doctor and that, as far as he knew,
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Slaughter had not been ill prior to the accident.
Hannegan testified that Slaughter “looked pretty rough” the day after the accident. He said
Slaughter was “spitting up stuff,” lacked energy, and was having trouble breathing. He said
Slaughter was worse when he came to work two days later. He did not believe Slaughter worked
more than a day and a half after the accident.
La’Ronda Slaughter testified that Slaughter came in from work on the day of the accident
and said, “Baby, I like to have gotten killed today.” Slaughter was late getting home and explained
that he had to stop for a while on the way because he could not breathe. He had a normal appetite
that evening, but La’Ronda had to help him up the stairs to bed. She testified that he panted a lot
during the night and did not sleep well. When he came home after work the next day, he was still
panting and breathing hard. As time went on, he became worse, and she finally persuaded him to
see a doctor.
Slaughter saw Dr. Robert Watson on December 9, 2004, and complained of shortness of
breath and chest congestion. X-rays revealed no infiltrates in the lungs, but pulmonary function
tests did indicate that his breathing was obstructed. Although Dr. Watson’s notes do not indicate
that Slaughter mentioned the chlorine-gas incident, La’Ronda testified that she was present during
the examination and that Dr. Watson was informed about the accident. Dr. Watson’s impression
was that of upper respiratory infection, acute bronchitis, restricted lung disease, and shortness of
breath. He encouraged Slaughter to stop smoking and prescribed a round of steroids, Advair,
antibiotics, and cough medicine. Slaughter was advised to return in two weeks.
La’Ronda testified that the medication did not help and that she had wanted Slaughter to
return to the doctor sooner than in two weeks. Nevertheless, Slaughter waited until December 22
to return to Dr. Watson. Slaughter’s pulse oximeter reading had declined to 60%, and Dr. Watson
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noted that he was hypoxic and tachypneic, and that his shortness of breath and pulmonary function
had worsened.
Because Slaughter’s condition had substantially deteriorated, Dr. Watson
immediately placed him in the hospital, where he came under the care of Dr. Richard Dietzen, and
it was discovered that Slaughter was HIV positive.
La’Ronda testified that Slaughter had not previously known that he had HIV and that he
did not know how he had contracted it. She acknowledged that Slaughter had recently lost ten
pounds, but she said that was not unusual because of the way he worked in the summer time.
Steve Daniell, the Chief of Police for appellee, was Slaughter’s supervisor. According to the
attendance records, Slaughter worked the day following the incident, a Thursday. Slaughter took
a sick day that Friday and a vacation day on November 24. He did not work at all after December
9.
Slaughter ended his days on a ventilator in the intensive-care unit of the hospital. Dr.
Watson’s discharge summary gave diagnoses of respiratory failure, pneumonia, end-stage HIV,
COPD, and chemical inhalation. On the death certificate, Dr. Watson listed respiratory failure as
the immediate cause of death, due to bacterial pneumonia, fungal pneumonia, and chemical
inhalation.
In terms of medical testimony, the Commission had before it the depositions of two
physicians: Dr. Jimmie Gilbert, a pulmonologist, who was retained by appellee to review the
medical records, and Dr. Richard Dietzen, the respiratory specialist who treated Slaughter at the
hospital. Dr. Gilbert testified that chlorine gas is a pulmonary irritant and that severe exposure can
lead to lung injury, pulmonary edema, and death. It was Dr. Gilbert’s opinion, however, that
Slaughter’s exposure to chlorine gas played no significant role in Slaughter’s demise. This opinion
was based on the presence of Slaughter’s preexisting conditions and on the fact that Slaughter had
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not sought immediate medical attention. Dr. Gilbert believed that Slaughter’s death was caused
instead by pneumocystis carnii, a parasitical infection commonly associated with HIV. Dr. Gilbert
testified, however, that he would defer to Dr. Dietzen in the matter because his was a more
informed opinion, since Dr. Dietzen had treated Slaughter in the hospital.
Dr. Dietzen testified that Slaughter had preexisting conditions of emphysematous bullae,
a more advanced form of emphysema, and COPD, which overlapped with the emphysema and
Slaughter’s habit of smoking. The presence of bullae indicated that Slaughter’s lungs had been
significantly damaged by the emphysema, but he said that the damage did not necessarily correlate
with decreased lung function. Contrary to Dr. Gilbert’s assertion, Dr. Dietzen found no clear
evidence of pneumocistis carinii,2 and he opined that Slaughter did not have pneumocystis.
Although Slaughter’s CD4 count was low, evidencing the presence of HIV, he said there was no
bacterial or fungal pulmonary infection.
He stated that a person could be infected with the HIV
virus and not show any symptoms for a number of years. He said that Slaughter, with the history
of HIV and smoking, was on a course that would have eventually required him to seek medical
attention. Dr. Dietzen testified, however, that once diagnosed with HIV, a person can live a fairly
normal life for an extended period of time with appropriate treatment.
It was Dr. Dietzen’s opinion that the chemical inhalation set a process in motion where
Slaughter’s lungs began to deteriorate with alveolar and bronchiolar damage, which occurred in a
setting of decreased defenses due to HIV and smoking. He said that chlorine is a well-known
injurant to the airways of the lungs that forms hydrochloric acid within the tissues of the bronchi
and alveoli, resulting in bronchiolitis or inflammation of the airways “from top to bottom all the
2
Although this infection was considered as a possible diagnosis, Dr. Dietzen testified
that it was not confirmed upon further testing.
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way down to the air sac.” He testified that the chlorine exposure was a “significant inciting event”
that was “greater than fifty percent” among the multiple causes of Slaughter’s respiratory failure.
In its decision, the Commission found that Dr. Dietzen’s opinion as to causation was more
credible than that of Dr. Gilbert. The Commission also accepted that Slaughter’s exposure to
chlorine gas qualified as an “unusual and unpredicted incident” under Ark. Code Ann. § 11-9-114
but determined that the chemical inhalation was not the major cause of his physical harm “in
relation to other factors.” The Commission reasoned that Slaughter’s exposure to chlorine gas was
“but one factor” leading to his respiratory failure, based on the following excerpt from Dr. Dietzen’s
testimony when he was being questioned by appellees’ attorney:
Q. Back again to the chlorine. You found physical findings that
suggested deviation formed [sic] normal but those findings could be
consistent with other disease process or with chlorine inhalation?
A. Yes.
Q. So you can’t really tell which one it was then?
A. We’re discussing basically a nature of contributory processes
here. To say that I can’t really tell which one it was is to create the
impression that it had no relevance or that I think it had no
relevance.
Q. The fact that your physical findings could just as easily be one
disease process that Mr. Slaughter had in his body as well as it could
be the other one.
A. The physical findings could have a multitude of explanations.
The disease process could have a multitude of explanations. My
opinion is that the contribution by the chlorine gas inhalation into
the evolution of the process that led to his death.
Q. So what I think I hear you saying is that the chlorine inhalation
may have aggravated his underlying condition?
A. Yes.
Q. May have precipitated the aggravation or started things off more.
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A. Yes.
Q. If you were to take those items that Mr. Slaughter already had
in play and put them on a balance like you see with scales of justice,
and you piled them up on one side and then you put the chlorine
as a causative factor on the other side, which side would weigh
heavier?
A. The heaviest weight in you analogy would lay to the preexisting
factors.
Q. So the chlorine would play a role in Mr. Slaughter’s illness but
it would not be the major cause, meaning more than fifty percent of
the problems Mr. Slaughter had?
A. It could be as what we’re dealing with is the straw that breaks
the camel’s back. Where you can phrase it as you did where you’re
weighing the contributory causes or you could phrase as you had
these contributory causes was this something that tipped him over to
become symptomatic and therefore led to his hospitalization.
Q. Well if it were the tipping point that would be dependent upon
something being tipped.
A. Yes.
Appellant’s argument that substantial evidence does not support the Commission’s decision
is well taken. In workers’ compensation law, an employer takes the employee as he finds him.
Parker v. Atlantic Research Corp., 87 Ark. App. 145, 189 S.W.3d 449 (2004). We have been
steadfast in our interpretation of Ark. Code Ann. § 11-9-114 that preexisting conditions do not
preclude a finding that a work-related incident is the major cause of physical harm. Cloverleaf
Express v. Fouts, 91 Ark. App. 4, 207 S.W.3d 576 (2005) (affirming decision that strenuous work
activity was the major cause of the employee’s physical harm even where there was a history of
serious cardiac illness); Huffy Service First v. Ledbetter, 76 Ark. App. 533, 69 S.W.3d 449 (2002)
(affirming decision that work conditions were the major cause of the employee’s heart attack
despite history of arterial blockage). For instance, in Williford v. City of North Little Rock, 62 Ark.
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App. 198, 969 S.W.2d 687 (1998), Williford was a fireman who died of a heart attack within fortyeight hours of engaging in a strenuous performance test in hot weather. Although he had displayed
no previous symptoms of a heart condition, his autopsy revealed chronic pulmonary disease,
hypertension, COPD, and diabetes. We reversed the Commission’s denial of benefits because the
Commission ignored the pathologist’s opinion that, despite his preexisting conditions, the agility
test was the major cause of the heart attack.
Although the previous cases that have come before us involved heart attacks, the law we
must apply to the facts of this case is the same. Here, Slaughter showed no signs of acute illness or
respiratory distress prior to his inhalation of chlorine gas. The record is clear that Slaughter
experienced a downward spiral in his health after the accident.
In denying benefits, the
Commission singled out one portion of Dr. Dietzen’s testimony to find that the exposure to
chlorine gas was “but one” cause of Slaughter’s physical harm. However, to say that Dr. Dietzen
considered the exposure to chlorine gas as simply one cause of Slaughter’s physical harm is a
mischaracterization of Dr. Dietzen’s opinion. On the contrary, Dr. Dietzen was resolute in his
opinion that the inhalation of chlorine gas was the major precipitating event that led to Slaughter’s
respiratory failure. We are firmly convinced that fair-minded persons with the same facts before
them could not have reached the decision made by the Commission. We therefore reverse and
remand for proceedings consistent with this opinion.
Reversed and remanded.
R OBBINS and G LOVER, JJ., agree.
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