Hildred Hayes v. Carroll County Judge and AAC Risk Management Services

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ca03-806

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

HILDRED HAYES

APPELLANT

v.

CARROLL COUNTY JUDGE and AAC RISK MANAGEMENT SERVICES

APPELLEES

CA03-806

FEBRUARY 18, 2004

APPEAL FROM ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F109482]

AFFIRMED

Andree Layton Roaf, Judge

This is an appeal from the Workers' Compensation Commission's order affirming and adopting the Administrative Law Judge's decision, which found that appellant Hildred Hayes had failed to prove by a preponderance of the evidence that his heart problems were a result of his work activities as a volunteer firefighter. Hayes argues on appeal that the Commission's decision is not supported by substantial evidence. We affirm. On April 9, 2001, while employed as a volunteer firefighter for the Grassy Knob Fire Department, Hayes, who was fifty-seven years old, suffered heart problems requiring medical treatment. Hayes testified that he was notified of a house fire on the morning of April 9 and that he went by his private vehicle to the fire department, where he began to prepare the tanker truck. When he arrived at the fire, Hayes testified that he dumped the water from his tanker truck into a dump tank and waited for further instructions. He stated that he later went back to the fire station to pick up another vehicle, and when he got back to the scene of the fire, he emptied the contents of that truck and then refilled the tanker at a fire hydrant several miles away.

Hayes testified that he was then instructed to take a grass buggy down to a lower area and fill it with water. According to Hayes, the smoke from the burning house had settled into that low area, and as he was sitting in his truck waiting for the buggy to fill up, he began to feel short-winded and nauseous. He stated that the smoke had filled the cab of his truck. He got out of the truck and started walking up the hill, at which time he began to experience chest pains, weakness, and shortness of breath. Hayes testified that he stopped halfway up the hill and rested until his symptoms subsided. He then began to help another firefighter roll up a hose that was caught in the brush. As he was helping pull the hose and roll it up, Hayes testified that he was in more smoke and began to experience more dramatic symptoms. Hayes stated that he must have "blacked out" because the next thing he remembered was being in the ambulance with people putting water on his neck.

According to Hayes, his usual duties as a firefighter included driving the truck, pulling large hoses, and filling the tanker with water. He agreed that his duties on April 9 also consisted of driving the truck, filling up the tanker with water, and rolling and pulling hoses. Hayes also testified that he would normally expect there to be smoke at a fire, although he stated that he recalled telling the doctors that it was "terribly smoky" during the period of time that he was fighting the fire on that day.

Hayes admitted that he had previously sought medical treatment from Dr. Gregory Kresse on April 6, 2000, for complaints of shortness of breath and chest pain. Hayes indicated that he underwent a stress test in November 2000 and that after failing this test, he was seen by Dr. Deepak Parashara, who performed a heart catheterization in December 2000. Hayes agreed that he was diagnosed with coronary artery disease in December 2000 but stated that he was not placed on any sort of restrictions for his heart problem, although he was prescribed medication.

The medical report from April 9, 2001, stated that Hayes was seen for an onset of angina while fighting a fire. The history sets forth that Hayes reported that it was warm and smoky, although not terribly smoky, and that he began to have chest pains while dragging a hose up a hill. After an examination, Dr. Kresse put Hayes in the hospital overnight for observation, opining that he probably had exertional angina. Dr. Kresse reported that the next day, Hayes was having no pain and was feeling better. Hayes was sent home, and Dr. Parashara saw him on April 11, 2001, diagnosing him with chest pain secondary to several possible causes. Dr. Parashara recommended another cardiac catheterization, which Hayes underwent on April 12, 2001. According to Dr. Parashara, objectively, nothing different was found in the second heart catheterization, even though Hayes's symptoms were more prominent.

In his deposition, Dr. Parashara indicated that when Hayes was reporting chest pains at rest on April 11, 2001, he thought that Hayes's heart disease had progressed and ordered an additional heart catheterization. He stated that the first time that Hayes was tested, he did not check his oxygen saturations. After Hayes told him that the chest pain started while he was fighting the fire, Dr. Parashara tested Hayes's oxygen levels and found that they were at ninety-six percent on April 11, 2001. According to Dr. Parashara, an oxygen level of more than ninety percent is appropriate. When asked what he thought was the major underlying cause of Hayes's need for medical treatment on April 9, 2001, Dr. Parashara stated that it was Hayes's coronary artery disease. He stated that he could not be sure whether Hayes's activity on April 9 precipitated the angina unless he knew the intensity of the activity. Dr. Parashara indicated that Hayes's firefighting activities did not worsen his condition but may have precipitated the symptoms. Dr. Parashara stated that he could not say with any certainty whether Hayes's need for treatment was smoke-related or due to his underlying coronary artery disease. However, he opined that the fact that Hayes's oxygen levels were good "is probably a good indicator that the smoke inhalation should not have caused his chest pain."

The ALJ found that Hayes did not prove by a preponderance of the evidence that his heart problems were a result of or arose out of any extraordinary or unusual work activities by Hayes on April 9, 2001. The ALJ noted that the evidence showed that Hayes's heart problems were pre-existing and were not precipitated by his work activities on April 9. The Commission affirmed and adopted the ALJ's decision, and Hayes now appeals from the Commission's decision.

Hayes argues that the Commission's decision is not supported by substantial evidence. When reviewing a decision of the Workers' Compensation Commission, the Court of Appeals views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. Huffy Serv. First v. Ledbetter, 76 Ark. App. 533, 69 S.W.3d 449 (2002). This court must affirm the decision of the Commission if it is supported by substantial evidence. Id. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion of the Commission. Id. The issue on appeal is not whether the appellate court might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, the appellate court must affirm its decision. Id. The Commission determines the credibility of the witnesses and the weight to be given their testimony. City of Blytheville v. McCormick, 56 Ark. App. 149, 939 S.W.2d 855 (1997). The Commission also has the duty of weighing medical evidence, and if the evidence is conflicting, its resolution is a question of fact for the Commission. Id.

Compensation for injuries due to heart or lung illness are governed by Ark. Code Ann. § 11-9-114 (Repl. 2002), which 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.

Thus, this statute requires that a claimant prove both that the injury is the major cause of the harm and that the work precipitating the injury was extraordinary and unusual in comparison to his regular employment. Huffy Serv. First v. Ledbetter, supra. Major cause is defined as more than fifty percent of the cause. Ark. Code Ann. § 11-9-102(14)(A) (Repl. 2002).

While Hayes admits that he suffered from coronary artery disease prior to the incident in question, he contends that he is entitled to compensation for medical treatment related to the aggravation of his symptoms, which he asserts were caused by his work activities on April 9, 2001. He argues that his unusually strenuous work activity and the heavy smoke present at the fire were the major cause of his need for medical treatment, not his underlying coronary artery disease.

We need not reach the merits of Hayes's argument, however, because he has not cited any authority in support of his argument in his brief. Although he cites two statutes in his introduction to his argument, they are not relevant to the issue on appeal, and he fails to cite the controlling statute in this case, section 11-9-114. He also fails to cite a single case. In fact, although he has a section in his brief entitled "Table of Authorities," the page is blank, as there is no authority listed. It is well-settled that this court will not consider the merits of an argument that fails to cite any convincing legal authority in support of that argument, and where it is not apparent without further research that the argument is well-taken. Matthews v. Jefferson Hosp. Ass'n, 341 Ark. 5, 14 S.W.3d 482 (2000). Thus, we affirm on this basis.

However, even if we were to address the merits of Hayes's argument, there is substantial evidence to support the Commission's decision. Hayes failed to prove that his work activities were the major cause of his medical treatment, as demonstrated by the deposition testimony of Dr. Parashara, who stated that the major underlying cause of Hayes's need for treatment was his coronary artery disease. Although Hayes argues that Dr. Kresse opined that his medical treatment was a direct result of his work activities on April 9, 2001, it is the duty of the Commission to weigh the medical evidence and to resolve any conflicts in that evidence. City of Blythevillle v. McCormick, supra. Moreover, Hayes also failed to show that his exertion due to his work activities was extraordinary or unusual in comparison to his normal work, as required under section 11-9-114.

Affirmed.

Hart and Crabtree, JJ., agree.