City of Blytheville v. McCormick

CITY of BLYTHEVILLE v. Wendell McCORMICK

CA 96-644                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division IV
                Opinion delivered March 12, 1997


1.   Workers' compensation -- determining sufficiency of evidence -
     - factors on review. -- In determining the sufficiency of the
     evidence to sustain the findings of the Workers' Compensation
     Commission, the evidence is reviewed in the light most
     favorable to the Commission's findings and those findings are
     affirmed if they are supported by substantial evidence;
     substantial evidence is such relevant evidence as a reasonable
     mind might accept as adequate to support a conclusion; the
     question is not whether the evidence would have supported
     findings contrary to the ones made by the Commission; there
     may be substantial evidence to support the Commission's
     decision even though the appellate court might have reached a
     different conclusion had it sat as the trier of fact or heard
     the case de novo. 

2.   Workers' compensation -- review of Commission's decision --
     function and duties of Commission. -- It is the function of
     the Workers' Compensation Commission to determine the
     credibility of the witnesses and the weight to be given their
     testimony; the Commission has the duty of weighing medical
     evidence and, if the evidence is conflicting, its resolution
     is a question of fact for the Commission; the Commission is
     not required to believe the testimony of the claimant or any
     other witness, but may accept and translate into findings of
     fact only those portions of the testimony it deems worthy of
     belief.

3.   Workers' compensation -- strict construction of workers'
     compensation law mandated. -- While the provisions of the
     Workers' Compensation Act were formerly construed liberally in
     accordance with the act's remedial purpose, Act 796 of 1993
     changed former practice and mandated that both the Commission
     and the courts should henceforth construe the provisions of
     the act strictly. 

4.   Workers' compensation -- term "accident" construed --
     Commission did not err in finding that an accident was major
     cause of appellee's heart attack. -- Arkansas Code Annotated
     Section 11-9-114(a) (Repl. 1996) provides that a heart or lung
     injury or illness can constitute a compensable injury only if
     the major cause of the physical harm is an accident; in order
     to derive its meaning, the appellate court placed it beside
     other statutes relevant to the subject and gave it a meaning
     and effect derived from the combined whole; after so comparing
     the statute in question to other provisions of Act 796 of
     1993, the court found that the legislature employed the word
     "accident" in the sense of an event "caused by a specific
     incident and identifiable by time and place of occurrence"; in
     light of this construction and the evidence that appellee
     suffered a heart attack caused by and immediately following
     his exposure to smoke while ventilating the roof of the
     burning building, the Commission did not err in finding that
     an accident was the major cause of appellee's heart attack.

5.   Workers' compensation -- work that precipitated appellee's
     heart attack was unusual and extraordinary -- Commission's
     finding not in error. -- The Workers' Compensation Commission
     did not err in finding that the work that precipitated
     appellee's heart attack was unusual and extraordinary in
     comparison to appellee's usual work duties where there was
     evidence that appellee was normally assigned to drive a fire
     truck and that he would perform other tasks only when he
     answered a call while off-duty; furthermore, there was
     evidence that appellee inhaled a good deal of smoke that was
     unusually heavy, dark, and thick immediately prior to his
     heart attack.

6.   Workers' compensation -- medical evidence sufficient to
     support finding that appellee's work incident was major cause
     of his heart attack -- testimony upon which Commission based
     its decision substantial. -- The medical evidence was
     sufficient to support a finding that appellee's work incident
     was the major cause of his heart attack where a doctor's
     testimony indicated that appellee's exposure to smoke while
     ventilating the roof was by far the major cause of his heart
     attack, with all other factors combined amounting to less than
     ten percent by comparison; the existence of medical evidence
     to the contrary created a question of fact for the Commission;
     in light of the substantial nature of the doctor's testimony,
     the appellate court was powerless to reverse the decision. 

7.   Workers' compensation -- public policy considerations not
     applied by appellate court in construction of relevant
     statutes -- appellant not prejudiced. -- Appellant's
     contention that the Commission erred in giving considerations
     of public policy weight in construing the provisions of the
     Workers' Compensation Act was without merit; although the
     administrative law judge's opinion did contain a discussion of
     public policy concerns bearing on the application of the
     "extraordinary and unusual" requirement of Ark. Code Ann. 
     11-9-114(b)(1) (Repl. 1996) to public servants such as
     firefighters and police officers, who are exposed to
     extraordinary and unusual events in the course of their work,
     these matters were not considered by the appellate court in
     construing the relevant statutes; consequently, appellant was
     not prejudiced, and the public policy issues raised by the ALJ
     did not need to be decided.


     Appeal from Arkansas Workers' Compensation Commission;
affirmed.
     Thomas N. Kieklak, for appellant.
     Daniel G. Ritchey, for appellee.

     James R. Cooper, Judge.
     The appellee in this workers' compensation case was employed
as a firefighter by the appellant on October 26, 1993, when he
suffered a heart attack after ventilating smoke from a burning
building.  The appellee filed a workers' compensation claim and the
Commission awarded benefits.  From that decision, comes this
appeal.
     For reversal, the appellant contends that there was
insufficient evidence to support the Commission's findings that an
accident caused the appellee's heart attack; that the work
performed by the appellee when he suffered the heart attack was
unusual and extraordinary in comparison with his usual work; and
that the work incident was the major cause of the appellee's heart
attack.  The appellant also contends that the Commission erred in
allowing policy decisions to weigh in its decision to award
benefits.  We affirm.
     We first address the appellant's arguments concerning the
sufficiency of the evidence to support the Commission's findings.
In determining the sufficiency of the evidence to sustain the
findings of the Workers' Compensation Commission, we review the
evidence in the light most favorable to the Commission's findings
and affirm if they are supported by substantial evidence.  Weldon
v. Pierce Brothers Construction, 54 Ark. App. 344, 925 S.W.2d 179
(1996).  Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. 
City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463
(1992).  The question is not whether the evidence would have
supported findings contrary to the ones made by the Commission;
there may be substantial evidence to support the Commission's
decision even though we might have reached a different conclusion
if we sat as the trier of fact or heard the case de novo.  Tyson
Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988). 
In making our review, we recognize that it is the function of the
Commission to determine the credibility of the witnesses and the
weight to be given their testimony.  Whaley v. Hardee's, 51 Ark.
App. 166, 912 S.W.2d 14 (1995).  The Commission has the duty of
weighing medical evidence and, if the evidence is conflicting, its
resolution is a question of fact for the Commission.  Id.  The
Commission is not required to believe the testimony of the claimant
or any other witness, but may accept and translate into findings of
fact only those portions of the testimony it deems worthy of
belief.  Id.  
     Viewed in the light most favorable to the Commission's
findings, the record shows that the appellee was employed by the
appellant as a firefighter for approximately seven and one-half
years.  The appellee suffered his first heart attack in October
1992 and underwent bypass surgery.  In January 1993, the appellee
returned to his regular employment, which consisted of driving a
fire truck when he was on duty, and doing whatever was assigned
when he answered a call while off duty.  The appellee had no
physical limitations or health problems between his return to full-
duty status in March 1993 and his second heart attack on October
26, 1993, which is the subject of the present claim.  This second
heart attack occurred while the appellee was venting the roof of a
burning building, which involves cutting a hole in the roof and
placing a pipe to allow smoke and gas to escape.  In so doing the
appellee was exposed to unusually heavy, dark, thick smoke.  The
appellee inhaled a good deal of smoke and was shaking as he climbed
down from the roof.  He sat down, felt sick to his stomach, and
broke into a sweat.  Although his chest was tight and his arm hurt,
the appellee refused an ambulance and went home.  However, his
symptoms progressively worsened and his wife took him to the
hospital.  Dr. Charles Burnett, the cardiologist who treated the
appellee during and following his first heart attack, opined that
the appellee's second heart attack was primarily caused by his
exposure to heavy smoke, which caused his blood to become
hypercoagulable and resulted in the formation of a clot. 
Dr. Burnett testified that the risk factors contributing to the
appellee's heart disease combined equalled less than ten percent as
far as contributing to his second heart attack.
     The appellant contends that the Commission erred in finding
that an "accident" was the major cause of the appellee's heart
attack.  The appellant concedes that, in the context of workers'
compensation law, Arkansas has long held that an injury is
"accidental" if the result of the injury is unexpected, unforeseen,
or unintended, but argues that this definition was the product of
liberal statutory construction that may not appropriately be
applied to our present workers' compensation law as promulgated in
Act 796 of 1993.
     It is true that, while the provisions of the Workers'
Compensation Act were formerly construed liberally in accordance
with the act's remedial purpose, Act 796 of 1993 changed former
practice and mandated that both the Commission and the courts
should henceforth construe the provisions of the act strictly. 
Ark. Code Ann.  11-9-704(c)(3) (Repl. 1993); cf Ark. Code Ann. 
11-9-704(c)(3) (1987).  It is likewise true that, under former law,
the Arkansas Supreme Court employed liberal construction in holding
that an injury is accidental when either the cause or the result is
unexpected.  Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S.W.2d 436 (1956).  Nevertheless, we do not rely on former law or
construction thereof in determining the meaning of "accident" as
employed in Ark. Code Ann.  11-9-114(a) (Repl. 1996).
     Arkansas Code Annotated Section 11-9-114(a) (Repl. 1996)
provides that a heart or lung injury or illness can constitute a
compensable injury only if the major cause of the physical harm is
an accident.  Although "accident" is not defined in this statute,
the rules of statutory construction require us to place it beside
other statutes relevant to the subject and give it a meaning and
effect derived from the combined whole.  Hercules Inc. v. Pledger,
319 Ark. 702, 894 S.W.2d 576 (1995).  After so comparing the
statute in question to other provisions of Act 796 of 1993, we find
that the legislature employs the word "accident" in the sense of an
event "caused by a specific incident and identifiable by time and
place of occurrence."  See Ark. Code Ann.  11-9-102(5)(A)(i)
(Repl. 1996).  In light of this construction and the evidence that
the appellee suffered a heart attack caused by and immediately
following his exposure to smoke while ventilating the roof of the
burning building, we hold that the Commission did not err in
finding that an accident was the major cause of the appellee's
heart attack.
     Nor do we think that the Commission erred in finding that the
work that precipitated the appellee's heart attack was unusual and
extraordinary in comparison to the appellee's usual work duties. 
There was evidence that the appellee was normally assigned to drive
a fire truck, and that he would perform other tasks only when he
answered a call while off-duty.  Furthermore, there was evidence
that the appellee inhaled a good deal of smoke that was unusually
heavy, dark, and thick immediately prior to his heart attack.
     The appellant also contends that the medical evidence was
insufficient to support a finding that the appellee's work incident
was the major cause of his heart attack.  We do not agree. 
Dr. Burnett's testimony indicated that the appellee's exposure to
smoke while ventilating the roof was by far the major cause of his
heart attack, with all other factors combined amounting to less
than ten percent by comparison.  Although there was medical
evidence to the contrary, the Commission chose to accept
Dr. Burnett's testimony.  The resolution of this conflict was a
question of fact for the Commission and, in light of the
substantial nature of Dr. Burnett's testimony, we are powerless to
reverse the decision.  Henson v. Club Products, 22 Ark. App. 136,
736 S.W.2d 290 (1987).
     Finally, the appellant contends that the Commission erred in
giving considerations of public policy weight in construing the
provisions of the Workers' Compensation Act.  Although the ALJ's
opinion did contain a discussion of public policy concerns bearing
on the application of the "extraordinary and unusual" requirement
of Ark. Code Ann.  11-9-114(b)(1) (Repl. 1996) to public servants
such as firefighters and police officers, who are exposed to
extraordinary and unusual events in the course of their work, these
matters have not been considered by us in construing the relevant
statutes.  Consequently, the appellant has not been prejudiced, and
the public policy issues raised by the ALJ need not be decided.
     Affirmed.
     Bird and Stroud, JJ., agree.