Ayers Drywall & Insulation v. Carey
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SLIP OPINION
Cite as 2009 Ark. App. 749
ARKANSAS COURT OF APPEALS
DIVISION II
No. CA09-524
Opinion Delivered N OVEMBER 11, 2009
AYERS DRYWALL and INSULATION,
and AIG CLAIM SERVICES, INC.
APPELLANTS
APPEAL FROM THE WORKERS’
COMPENSATION COMMISSION
[NO. F608337]
V.
RONALD CAREY
APPELLEE
AFFIRMED
ROBERT J. GLADWIN, Judge
This appeal follows the April 27, 2009 decision of the Workers’ Compensation
Commission affirming and adopting the November 18, 2008 opinion of the Administrative
Law Judge, finding that on July 17, 2006, appellee sustained a compensable injury in the
form of a myocardial infarction, or heart attack. Appellants’ sole argument on appeal is that
the Commission’s decision is not supported by substantial evidence. We affirm.
On July 17, 2006, an extremely hot day, appellee was performing his employment
duties as a “stocker” for appellant/employer Ayers Drywall & Insulation. Those duties
consisted primarily of picking up and carrying individual sheet-rock panels from stacks by
the side of the delivery truck into the building and to the apartments where they were being
installed. This was a two-man process, and the individual who was helping appellee that day
Cite as 2009 Ark. App. 749
was new to the job and was “not a very big guy.” As a result, appellee was required to bear
more of the load of the panels, particularly those that were required to be carried upstairs to
second-floor apartments. Over the course of the day, appellee sweated profusely and drank
large amounts of water. As the day progressed, he began to have trouble breathing and began
to get weak. Appellee ultimately passed out and was revived when co-employees poured
cold water on him.
At the time of the July 17, 2006 incident, appellee was fifty years old and had a history
of hypertension and non-insulin-dependent diabetes. He was a smoker with a prior history
of alcohol and methamphetamine use. He was mildly to moderately obese and had a family
history of coronary-artery disease. Medical evidence reveals previous episodes of cardiac
dysfunction that were supported by abnormal EKG findings. Tests performed after the
myocardial infarction revealed varied degrees of blockage in multiple coronary arteries. To
some extent, this blockage was found to predate appellee’s myocardial infarction. The
medical evidence further establishes that appellee experienced both a heat stroke and a
myocardial infarction on July 17, 2006.
Both Dr. Gaurav Kumar and Dr. Jane McKinnon expressed opinions that appellee’s
myocardial infarction was caused by a sudden rupture of a plaque formation with a resulting
occlusion or blockage of the second-obtuse-marginal coronary artery. Although some of the
other coronary blockage was addressed in the corrective bypass surgery on July 27, 2006, it
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was determined that the major cause for appellee’s immediate need for medical treatment
was the plaque rupture and occlusion of the second-obtuse-marginal coronary artery with
resulting myocardial infarction. The only expert medical evidence on the issue of causation
is contained in a report from Dr. McKinnon dated April 9, 2007, which states in part:
Based upon some objective medical findings and within a reasonable degree of
medical certainty, it is my opinion that Mr. Ronald Carey sustained a work related
injury on or about the above date (July 17, 2006), which was the major cause of the
patient’s need for medical treatment and any resulting disability.
While Dr. McKinnon did not set out her reasoning for reaching this conclusion, appellants
offered no expert medical opinion to contradict that of Dr. McKinnon.
Appellee’s testimony at the June 23, 2008 hearing was corroborated by that of his
supervisor, Mark Tiger. Mr. Tiger had been working on the same truck and stated that it was
extremely hot that day, above average for the time of year. He testified that the temperature
inside the apartments was even hotter. Mr. Tiger confirmed the description of the duties
appellee was assigned to perform and indicated that it was not unusual for the crew to have
to carry the sheetrock in by hand. He stated that between 3:00 and 5:00 p.m., another
employee brought it to his attention that appellee was lying down. When he went to
investigate, he found appellee on his back and thought that appellee had over-heated. Water
was poured on appellee and then he was fanned by co-employees. Later, after the work for
that day had been finished, Mr. Tiger and other employees transported appellee to the
hospital.
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On November 18, 2008, the ALJ issued his opinion in favor of appellee. Appellants
filed a timely appeal with the Commission on December 15, 2008, and the Commission
affirmed and adopted the ALJ’s opinion on April 27, 2009. Appellants filed a timely notice
of appeal on May 4, 2009.
In appeals involving claims for workers’ compensation, this court views the evidence
and all reasonable inferences deducible therefrom in the light most favorable to the
Commission’s decision and affirms the decision if it is supported by substantial evidence.
See Kimbell v. Ass’n of Rehab Indus. & Bus. Companion Prop. & Cas., 366 Ark. 297, 235
S.W.3d 499 (2006). Substantial evidence is evidence that a reasonable mind might accept
as adequate to support a conclusion. Id. The issue is not whether the appellate court might
have reached a different result from the Commission; if reasonable minds could reach the
result found by the Commission, the appellate court must affirm the decision. Id. 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. Dorris v. Townsends of Ark., Inc., 93 Ark. App. 208, 218 S.W.3d 351 (2005).
Questions concerning the credibility of witnesses and the weight to be given to their
testimony are within the exclusive province of the Commission. Patterson v. Ark. Dep’t of
Health, 343 Ark. 255, 33 S.W.3d 151 (2000). When there are contradictions in the evidence,
it is within the Commission’s province to reconcile conflicting evidence and to determine the
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true facts. Id. The Commission is not required to believe the testimony of appellee or any
other witness, but may accept and translate into findings of fact only those portions of the
testimony that it deems worthy of belief. Id. Thus, we are foreclosed from determining the
credibility and weight to be accorded to each witness’s testimony.
Arbaugh v. AG
Processing, Inc., 360 Ark. 491, 202 S.W.3d 519 (2005).
The issue of compensability is controlled by the provisions of Arkansas Code
Annotated section 11-9-114 (Supp. 2009), and the standard of proof in heart attack cases is
high, 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
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.
Subsection (a) requires that the relation to all factors contributing to the ultimate physical
harm and “accident” must be the major cause of the physical harm. Subsection (b) focuses
on the circumstances surrounding the incident and requires that the exertion of the work
necessary to precipitate the disability or death must be extraordinary and unusual in
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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 that was
the major cause of the physical harm.
Appellants’ primary argument is that the requirements of subsection (b) were not met
because there was absolutely nothing extraordinary or unusual about appellee’s job duties or
his working conditions on July 17, 2006.
They recite testimony in which appellee
acknowledged that the work was always hard, it was always hot, and they never stocked the
heavy sheetrock in an air-conditioned environment.
Appellants additionally focus on appellee’s preexisting propensity for a myocardial
infarction and risk factors for heart problems in general, including smoking a pack of
cigarettes each day; diabetes that requires medication; prior drug and alcohol use/abuse;
weight of approximately 230 pounds; personal and family history of high blood pressure;
family history of cardiovascular disease. Appellants note that appellee’s cardiovascular
surgeon, Dr. McKinnon, is the twin sister of appellee’s attorney. They contend that Dr.
McKinnon failed to indicate the objective findings that were the basis of her opinion, and
further did not identify appellee’s actual injury. Appellants maintain that Dr. McKinnon was
not provided information regarding appellee’s drug and alcohol abuse, medication
noncompliance, or prior cardiac dysfunction. As such, they assert that her opinion was not
based upon a complete and accurate history.
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Appellants set out multiple discrepancies between appellee’s testimony versus
information from his medical records. Appellee denied prior heart-related conditions or
symptoms; however, medical records show that he sought medical treatment multiple times
between 2002 and 2004 for various complaints that could be deemed related to a heartrelated condition. Appellants submit that it is evident that appellee’s heart condition was so
far compromised by his preexisting problems, coupled with many years of alcohol and drug
abuse, that he was likely to experience a myocardial infarction at any time. They maintain,
without specific supporting medical information, that even the slightest exertion could have
induced a heart attack. That said, appellee chose a job in which he worked in hot, physically
demanding conditions each day, lifting heavy sheets of drywall under extreme temperatures.
Appellants maintain that he was not asymptomatic prior to his heart attack on July 17, 2006,
and note that he has suffered two additional heart attacks since that one.
From our review, we conclude that the medical evidence supports the causal
connection in this case. Drs. Kumar and McKinnon both agreed that appellee’s myocardial
infarction was caused by a sudden rupture of a plaque formation with a resulting occlusion
or blockage of the second-obtuse-marginal coronary artery and myocardial infarction. Dr.
McKinnon opined that the work-related injury caused appellee’s need for surgery in an April
9, 2007 response to an inquiry from counsel, and appellants did not present any medical
evidence contrary to Dr. McKinnon’s opinion.
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Arkansas Code Annotated section 11-9-114(a) states that a heart attack is
compensable if, in relation to other factors contributing to the physical harm, an accident is
the major cause of the physical harm. Here, the medical evidence indicates that appellee’s
exertion in the extreme environmental conditions present on the day of the incident was the
major cause of his myocardial infarction.
Despite any preexisting propensities for
myocardial infarction, appellee had previously performed construction-labor related jobs
without restrictions related thereto and was able to report to work each day and perform his
duties.
With respect to those preexisting conditions, appellants argue that appellee’s condition
was so far compromised that even the slightest exertion could induce fatal results, and that
he was likely to experience a heart attack at any time. The problem is that appellants are
improperly asserting that, because there was medical evidence that might have supported a
contrary conclusion, the Commission improperly weighed the medical evidence. The mere
fact that there was evidence supporting a contrary finding does not allow this court to reverse
the Commission’s resolution of conflicting medical evidence. See, e.g., Kempner’s v. Hall,
7 Ark. App. 181, 646 S.W.2d 31 (1983) (affirming the Commission’s finding that the
claimant’s myocardial infarction was the result of his work and was not the result of a
preexisting coronary-artery disease, even though there was evidence to the contrary). A
person who has predisposing factors may yet suffer a heart attack that is caused by something
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other than those predisposing factors, and the existence of predisposing factors is merely
causal evidence for the Commission to assess.
We next review the second statutory requirement, the activities at work that
precipitated the heart attack. Compensability can be met by either of two findings: (1)
extraordinary and unusual exertion, or (2) an unusual and unpredicted incident. The ALJ
noted that the term “extraordinary and unusual” does not require the causal activities to be
entirely different from any type of employment activities that the claimant may have
previously performed. See Huffy Serv. First v. Ledbetter, 76 Ark. App. 533, 69 S.W.3d 449
(2002). In this case, appellee notes that he had been employed by appellant/employer for
approximately six months. Although he had previously carried panels of drywall/sheetrock
during the performance of his job duties, possibly even up stairs, he had not been required
to perform those duties in as hot an environment as that present on July 17, 2006.
Additionally, he bore more than the normal share of the load that day because of his workpartner’s size and inexperience.
Despite appellants’ argument to the contrary, the ALJ analyzed each of the witnesses’
testimony regarding the details of the activities and environment on the day in question. We
hold that the ALJ, and the Commission through its affirming and adopting that opinion, did
explain why the events were extraordinary and unusual—the extraordinarily hot temperature,
no breeze to lessen the heat, and appellee’s extra burden of bearing most of the load because
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he was partnered with a smaller man. Additionally, a specific finding was made that
appellee’s compensable heat stroke was an unusual and unpredicted incident that logically
contributed to the subsequent cardiac complications.
Substantial evidence exists to support the Commission’s finding of compensability
related to the myocardial infarction. The determination of whether the events were unusual
and extraordinary was a factual one for the Commission to make, and reasonable minds could
determine that the myocardial infarction was the primary cause of appellee’s need for
medical treatment, including the open-heart surgery and resulting recovery and rehabilitation.
Affirmed.
V AUGHT, C.J., and M ARSHALL, J., agree.
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