Family Dollar Stores, Inc. and St. Paul Travelers Insurance v. Barbara S. Edwards
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CA06-583
D ECEMBER 13, 2006
FAMILY DOLLAR STORES, INC. and
ST. PAUL TRAVELERS INSURANCE
APPELLANTS
APPEAL FROM THE WORKERS’
COMPENSATION COMMISSION
No. [F403603]
V.
BARBARA S. EDWARDS
APPELLEE
AFFIRMED
S AM B IRD, Judge
Appellants Family Dollar Stores, Inc., and St. Paul Travelers Insurance appeal from
a decision of the Workers’ Compensation Commission awarding benefits to appellee Barbara
S. Edwards, who suffered a heart attack one day after she was robbed at gunpoint while
working as a cashier at a Family Dollar Store. We affirm.
At a hearing before the administrative law judge, Edwards testified that she and Tara
Hall were closing the Family Dollar Store in Wynne on March 26, 2004, when a man “came
out from behind some clothes,” put a gun to her head, demanded money, and ordered her and
Hall to “get on the floor.” Edwards said that the man, who was dressed in a ski mask, gloves,
and a coat, crossed her arms and legs behind her and handcuffed them. He then took
Edwards’s car keys and belongings from her purse and left the store.
Edwards said that she and Hall “laid there for a little while” until Hall’s grandmother
began “banging” on the door, at which point Edwards and Hall “wiggled around and around”
until they could get to the door. When they got there, they kicked the door open, and Hall’s
grandmother helped Edwards and Hall to their feet. Edwards said that she was “exhausted”
and “out of breath” by the time she got to the door, and she had to stand with her feet crossed
for ten minutes while waiting for police to arrive. She explained that she had been “pulling
and yanking . . . trying to get loose,” and that she “was hurting.” Police removed Edwards’s
handcuffs when they arrived.
Edwards explained that she experienced discomfort or pain in her chest “right away”
when the gun was pointed at her face. She also stated:
I was so frightened till it was just like (gasping), it scared me so bad. I mean, it . . .
just . . . happened so sudden[ly]. When did I first begin worrying about I thought [sic]
I might have something wrong with my heart? After I got out of the handcuffs and we
were standing out on the front of the store. And I felt it, and I got real sick to my
stomach. And . . . [it was] just like I was going to throw up, and just – it was just real
sickening.
Edwards said that she went home around 11:00 p.m. on the night of the robbery, and
she reported to the hospital around 12:00 noon the next day when her symptoms “didn’t go
away.” She was diagnosed as having had a heart attack, was transported to Jonesboro by
ambulance, and subsequently underwent surgery as the result of the heart attack.
Edwards’s primary care physician, Dr. Julie Dow, opined in a letter dated June 24,
2004, that Edwards’s “acute myocardial infarction was triggered by and largely due to the
stress immediately [preceding the] armed [robbery] she witnessed.” In a letter dated
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September 28, 2004, Edwards’s cardiologist, Dr. Michael Isaacson, opined that the stress
from a recent armed robbery “contributed to her myocardial infarction and hospitalization.”
On June 15, 2005, Dr. Isaacson opined that the robbery “was indeed the major cause of
her . . . myocardial infarction occurring the following day.” He explained in the letter that
“[i]t has been demonstrated numerous times that an extreme emotional, and in this case even
physical event, can precipitate a sudden myocardial infarction” and, in his opinion, “that is
exactly what did occur.” During a subsequent deposition, Dr. Isaacson stated:
Basically, particularly in Ms. Edwards’ situation where somebody pointed a gun at
her, you turn on the nervous system and basically scares the hell out of you. And that
really does send a surge from the sympathetic nervous system, adrenaline,
epinephrine, norepinephrine, and all of those things that scare and fright type
phenomenon, can cause a plaque that heretofore had been a stable plaque to rupture.
And that’s how a lot of heart attacks occur. In fact, we think 70 percent of heart
attacks occur on blockages under 50 percent. And there’s a trigger, such as a gun
pointed at you that can trigger these things to rupture at a weakened site of the plaque
and then clot forms just like putting a gun or a shotgun barrel in the mud and plugging
it.
....
The emotional trauma that she was undergoing in the interim between . . .
having had the gun pointed at her head, understandably would cause a person
emotional trauma, that built up over that period of time of 12 to 18 hours, that would
lead someone to have a heart attack. I mean . . . you know, obviously it would be
easier say if it happened right when she had the – but it does, I mean, you’ve got the
fright and the stress and the come down, as you might say. After having the gun
pointed at her head, she’s probably on quite an epinephrine high for, you know, I
would say 24 hours after that phase.
During further questioning, Dr. Issacson stated:
As to whether it was more the emotional than the physical, I state probably
more of the emotional than physical. I mean, I wasn’t there so I don’t know the
extremes of the physical aspect. I know the emotional aspect was high from that.
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As to whether the physical factors also contributed to her heart attack, I think
those two go hand in hand. The physical aspect with the way things went down
obviously enhanced the emotional aspect as well. So I don’t – they’re intertwined, I
don’t know that I can tease those two apart.
Dr. Isaacson also reiterated his opinion that the physical and emotional aspects of the robbery
were the “major precipitating cause” of the heart attack.
The law judge found that Edwards had sustained a compensable heart attack, the
Commission affirmed and adopted the law judge’s opinion, and this appeal followed. When
reviewing a decision of the Workers’ Compensation Commission, we view the evidence and
all reasonable inferences deducible therefrom in the light most favorable to the findings of
the Commission and affirm that decision if it is supported by substantial evidence. Wheeler
Const. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). Substantial evidence is
that relevant evidence which a reasonable mind might accept as adequate to support a
conclusion. Id. The Commission’s decision should not be reversed unless it is clear that
fair-minded persons could not have reached the same conclusions if presented with the same
facts. Id.
Arkansas Code Annotated section 11-9-114 (Repl. 2002) states as follows:
(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
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employment, or, alternately, 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.
In his findings, the law judge stated:
The provisions of the Workers’ Compensation Act are to be strictly construed.
Apparently, based upon the foregoing, [appellants] appear to be arguing that stress
cannot be considered in determining whether a claimant has met her burden of proof.
However, when A.C.A. § 11-9-114 is read in its entirety, it is apparent that day-to-day
job stress, both physical and mental, cannot be considered and that only extraordinary
and unusual, physical or mental stress must be found when compared to the
employee’s usual work in order to find a heart attack compensable. Clearly, in the
instant case, the job stress both physically and mentally, was extraordinary and
unusual. Accordingly, I find that the claimant has proven, by a preponderance of the
credible evidence, that she sustained a compensable heart attack within the meaning
of our workers’ compensation laws.
Appellants contend that the Commission erred in concluding that Edwards sustained
a compensable heart attack in this case because she failed to satisfy her burden of proof.
Specifically, they argue that, under Ark. Code Ann. § 11-9-114, emotional stress is not to be
considered in determining compensability of a heart attack. They assert that, based on
testimony that Edwards developed chest pain prior to expending any physical effort in this
case, it was “emotional” stress that triggered her heart attack. Appellants claim that the
Commission has “liberalized and broadened” Ark. Code Ann. § 11-9-114 to find that “so
long as the stress was extraordinary or unusual, then a heart attack caused by stress is
compensable.”
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We find no error on the part of the Commission in this case. Dr. Isaacson opined that
the physical and emotional aspects of the robbery were the “major precipitating cause” of
Edwards’s heart attack. Subsection (b)(1) of the statute clearly provides that certain on-thejob heart attacks may be compensable when it is shown that the exertion of the work
necessary to precipitate the attack was “extraordinary and unusual in comparison to the
employee’s usual work in the course of the employee’s regular employment, . . . .” No
serious argument can be made that the combined physical exertion and emotional distress that
Edwards experienced while being robbed at gunpoint during the course of her employment
were not “extraordinary and unusual” in comparison to her usual work as a cashier for Family
Dollar Stores.
We recognize that subsection (b)(2) of the statute excludes physical and mental stress
from consideration in determining compensability of a heart attack. However, it would be an
unreasonable interpretation of the statute to hold that the combined effect of subsections
(b)(1) and (b)(2) is to allow for the compensability of an on-the-job heart attack arising from
the performance of work that is extraordinary or unusual in comparison to the employee’s
usual work, but to limit that compensability only to those rare employees who are able to
perform such extraordinary or unusual work without experiencing any physical or mental
stress. To the contrary, we believe that the more logical interpretation of subsections (b)(1)
and (b)(2) is that if a heart attack is proved to have been caused by the physical or mental
stress arising out of the performance of work that is extraordinary and unusual in comparison
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to the employee’s usual work, the heart attack is compensable; but where an employee suffers
an on-the-job heart attack in the absence of work that is unusual and extraordinary, or in the
absence of the occurrence of some unusual or unpredicted incident, it is not compensable,
regardless of the level of physical or mental distress the employee experiences.
Here, Edwards produced medical testimony that her heart attack was the result of
“extraordinary and unusual” work in comparison to her usual work. We therefore hold that
the Commission’s opinion was supported by substantial evidence.
Appellants further argue that Edwards had pre-existing artery disease and cite the
Commission’s opinion of Couch v. Arkansas State Police, WCC E500890 (1998), asserting
that the two cases are similar. In Couch the Commission held that the physical exertions of
a state trooper involved in a high-speed automobile chase were not proven to be the major
cause of the trooper’s heart attack where there existed evidence that the trooper suffered from
coronary artery disease. Suffice it to say that Full Commission opinions are not precedent to
this court. Taylor v. Pfeiffer Plbg. & Htg. Co., 8 Ark. App. 144, 648 S.W.2d 526 (1983).
Furthermore, contrary to the evidence in Couch, Edwards presented medical evidence, which
the Commission found credible, that the major cause of her heart attack was extreme
emotional stress brought on by the extraordinary and unusual event of being the victim of an
armed robbery.
Finally, appellants claim that Edwards did not prove that an “accident” was the major
cause of her physical harm. Appellants argue that the armed robbery was not an “accident”
within the meaning of our workers’ compensation laws. However, appellants fail to cite any
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convincing authority to support this argument and it is not well taken; we therefore need not
address it on appeal. See Rainey v. Hartness, 339 Ark. 293, 5 S.W.3d 410 (1999)
(recognizing that an appellate court does not consider assertions of error that are unsupported
by convincing legal authority or argument, unless it is apparent without further research that
the argument is well taken). Furthermore, appellants do not show that the Commission made
any ruling on this argument. When no ruling has been obtained below, we will not address
the merits of the argument on appeal. See W.W.C. Bingo v. Zwierzynski, 53 Ark. App. 288,
921 S.W.2d 954 (1996).
For these reasons, we affirm.
H ART and G RIFFEN, JJ., agree.
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