Mississippi Baptist Medical Center v. Bonita Mullett
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-WC-01157-COA
MISSISSIPPI BAPTIST MEDICAL CENTER AND
THE VIRGINIA INSURANCE RECIPROCAL
v.
DEPENDENTS OF FRANK E. MULLETT
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANTS
APPELLEES
6/3/2002
HON. W. SWAN YERGER
HINDS COUNTY CIRCUIT COURT
DOUGLAS R. DUKE
JOHN GRIFFIN JONES
CIVIL - WORKERS’ COMPENSATION
ORDER OF THE MISSISSIPPI WORKERS’
COMPENSATION COMMISSION IS
AFFIRMED.
AFFIRMED - 6/24/2003
EN BANC
MYERS, J., FOR THE COURT:
¶1.
Frank E. Mullett was found dead at his work station at Mississippi Baptist Medical Center (Baptist)
on January 12, 2000. Baptist prevailed before the administrative law judge, but the Full Workers’
Compensation Commission (Commission) reversed the administrative law judge’s decision in an order
dated September 11, 2001. On June 3, 2002, the Circuit Court of the First Judicial District of Hinds
County affirmed the Commission’s decision. Baptist appeals the circuit court’s decision to this Court.
Baptist and Virginia Reciprocal Group (Virginia Reciprocal), Baptist’s carrier, assert ten issues:
I. THE FULL MISSISSIPPI WORKERS’ COMPENSATION COMMISSION AND
THE CIRCUIT COURT JUDGE ERRED IN FINDING THAT THE DECEASED
RECEIVED A COMPENSABLE INJURY AS A RESULT OF HIS HEART ATTACK
AND DEATH AT WORK.
II. THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION AND THE
CIRCUIT COURT ERRED IN AWARDING ANY COMPENSATION BENEFITS,
AND SUCH AWARD IS CONTRARY TO LAW, AGAINST THE
OVERWHELMING WEIGHT OF THE EVIDENCE, AND IS MANIFESTLY
WRONG.
III. THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION AND THE
CIRCUIT COURT JUDGE ERRED IN ITS FINDINGS OF FACTS AND LAW.
IV. THE COMPENSATION ACT HAS NOT BEEN FAIRLY CONSTRUED
ACCORDING TO THE LAW AND EVIDENCE IN THIS CAUSE AS REQUIRED
BY THE MISSISSIPPI WORKERS’ COMPENSATION ACT.
V. THE COMMISSION AND THE CIRCUIT COURT JUDGE ERRED UNDER THE
FACTS AND LAW IN THIS CASE, IN REVERSING THE DECISION OF THE
ADMINISTRATIVE JUDGE.
VI. THE DECISION OF THE COMMISSION AND THE CIRCUIT COURT IS
CONTRARY TO THE CREDIBLE AND CONVINCING EVIDENCE ADDUCED
IN THE TRIAL AND IS CONTRARY TO REASON, AND IS AGAINST THE
OVERWHELMING WEIGHT OF THE EVIDENCE.
VII. THE COMMISSION AND THE CIRCUIT COURT JUDGE ERRED IN
DISREGARDING UNCONTRADICTED EVIDENCE AND MISCONSTRUING
AND MISAPPLYING THE HEREIN REBUTTED FOUND DEAD PRESUMPTION.
VIII. THE FINDING AND AWARD OF THE FULL COMMISSION AND THE
CIRCUIT COURT IS NOT SUPPORTED BY ANY SUBSTANTIAL EVIDENCE.
IX. THE ORDER OF THE FULL COMMISSION AND THE CIRCUIT COURT
JUDGE WAS ARBITRARY AND CAPRICIOUS IN RELYING ON FACTS NOT
IN THE RECORD.
X. IN THE ALTERNATIVE, AND ONLY IF THE APPELLATE COURT AGREES
WITH THE FULL COMMISSION ORDER AND THE CIRCUIT COURT THAT
THIS CLAIM IS IN ANY WAY COMPENSABLE, WHICH IS DENIED, THEN
THE APPELLANTS’ ASSERT THAT THE FULL COMMISSION ERRED IN
FAILING TO ORDER APPORTIONMENT.
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Statement of the Facts
¶2.
Baptist hired Frank Mullett in May 1997. His job title was project manager (or process
improvement manager) for Baptist’s information technology department. He had three dependents, his
wife, Benita Shurdan Mullett; a son, Michael; and a daughter, Molly. Doctors diagnosed Frank with high
blood pressure sometime around August 1997. This was the first chronic health problem Frank had, and
he had to take regular medication for it. Frank regularly took his medication (Diovan); he filled his last
prescription on December 17, 1999. Additionally, Frank monitored his blood pressure at home with a
home monitor. Shortly before his death, Frank began to take Norvasc to help control headaches he began
to experience in December 1999.
¶3.
Frank regularly exercised, usually in the form of weight lifting, running, and/or tennis. He never
smoked and continued exercising until the day of his death. He stood five feet eleven inches tall, and
maintained a weight of approximately 160 pounds.
¶4.
At the time of his death, Baptist was setting up a new computer record system. Frank was the
liaison between Baptist and the system’s vendor. Baptist had difficulties with the system and this apparently
added to Frank’s stress level. Additionally, Frank had to work extra hours, as did many in his department,
trying to ensure systems were “Y2K compliant.” All of this was in addition to helping others at Baptist with
computer problems.
¶5.
The day of Frank’s death was largely uneventful. He had not complained of any unusual blood
pressure readings, nor of any headaches. Frank attended a meeting at 10:00 that morning. Following the
meeting, Frank worked out during his lunch break, as was his usual practice. Frank returned from his
workout at around noon, and commented to a coworker that it had been a “rough workout,” or words to
that effect. At approximately 1:20 p.m., a co-worker heard a wheezing, choking sound coming from
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Frank’s cubicle. The co-worker hurried over, and found Frank unconscious in his chair. Frank was not
breathing and did not have a pulse. Co-workers attempted CPR, but failed to resuscitate Frank. The
death certificate stated 1:30 p.m. as the approximate time of death.
¶6.
An administrative law judge found that there was sufficient evidence to rebut the “found dead”
presumption, and dismissed the workers' compensation claim of Frank’s widow on April 2, 2001. The
Full Workers' Compensation Commission reversed the judge’s findings, and ordered full death benefits to
Frank’s dependants. The Circuit Court of the First Judicial District of Hinds County affirmed this decision.
Baptist and Virginia Reciprocal now appeal to this Court.
Standard of Review
¶7.
Under our standard of review, it is difficult to overturn the decision of the Full Commission.
The standard of review in worker's compensation cases is limited. The substantial
evidence test is used . . .. The Workers' Compensation Commission is the trier and finder
of facts in a compensation claim. This court will reverse the Commission's order only if it
finds that order clearly erroneous and contrary to the overwhelming weight of the evidence.
Smith v. B.C. Rogers Processors, Inc., 743 so. 2d 997, 1002 (¶13) (Miss. Ct. App. 1999) (quoting
Inman v. Coca-Cola/Dr. Pepper Bottling Co. of Memphis, Tennessee, 678 So.2d 992, 993
(Miss.1996)).
Legal Analysis
I. THE FULL MISSISSIPPI WORKERS’ COMPENSATION COMMISSION AND
THE CIRCUIT COURT JUDGE ERRED IN FINDING THAT THE DECEASED
RECEIVED A COMPENSABLE INJURY AS A RESULT OF HIS HEART ATTACK
AND DEATH AT WORK.
II. THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION AND THE
CIRCUIT COURT ERRED IN AWARDING ANY COMPENSATION BENEFITS,
AND SUCH AWARD IS CONTRARY TO LAW, AGAINST THE
OVERWHELMING WEIGHT OF THE EVIDENCE, AND IS MANIFESTLY
WRONG.
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III. THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION AND THE
CIRCUIT COURT JUDGE ERRED IN ITS FINDINGS OF FACTS AND LAW.
IV. THE COMPENSATION ACT HAS NOT BEEN FAIRLY CONSTRUED
ACCORDING TO THE LAW AND EVIDENCE IN THIS CAUSE AS REQUIRED
BY THE MISSISSIPPI WORKERS’ COMPENSATION ACT.
V. THE COMMISSION AND THE CIRCUIT COURT JUDGE ERRED UNDER THE
FACTS AND LAW IN THIS CASE, IN REVERSING THE DECISION OF THE
ADMINISTRATIVE JUDGE.
VI. THE DECISION OF THE COMMISSION AND THE CIRCUIT COURT IS
CONTRARY TO THE CREDIBLE AND CONVINCING EVIDENCE ADDUCED
IN THE TRIAL AND IS CONTRARY TO REASON, AND IS AGAINST THE
OVERWHELMING WEIGHT OF THE EVIDENCE.
VII. THE COMMISSION AND THE CIRCUIT COURT JUDGE ERRED IN
DISREGARDING UNCONTRADICTED EVIDENCE AND MISCONSTRUING AND
MISAPPLYING THE HEREIN REBUTTED FOUND DEAD PRESUMPTION.
VIII. THE FINDING AND AWARD OF THE FULL COMMISSION AND THE
CIRCUIT COURT IS NOT SUPPORTED BY ANY SUBSTANTIAL EVIDENCE.
IX. THE ORDER OF THE FULL COMMISSION AND THE CIRCUIT COURT
JUDGE WAS ARBITRARY AND CAPRICIOUS IN RELYING ON FACTS NOT
IN THE RECORD.
¶8.
Baptist asserts that the “found dead” presumption of workers’ compensation law does not apply
to the facts of this case. Our supreme court has described the "found dead" presumption as follows:
The rule is firmly established in this state when an employee is found dead at a place where
his duties require him to be or where he might properly be in the performance of his duties
during work hours in the absence of evidence that he was not engaged in his employer's
business, there is a presumption that the accident arose out of and in the course of his
employment.
Nettles v. Gulf City Fisheries, Inc., 629 So. 2d 554, 556-57 (Miss. 1993). The presumption may be
rebutted upon showing substantial credible evidence that the employee’s duties did not contribute to the
cause of death. Id. at 557. It is up to the employer/carrier to rebut the presumption, and it is not the burden
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of the claimant to support the presumption. U.S. Rubber Reclaiming Co. v. Dependents of Stampley,
508 So. 2d 673, 676 (Miss. 1987) (citing Okolona v. Dependent of Harlow, 244 So. 2d 25, 26 (Miss.
1971)). While this is, admittedly, a difficult burden to overcome, it belies “the likelihood that, if anything,
greater unfairness would attend its placement on [a] claimant whose principal witness has been silenced by
death.” Road Maintenance Supply, Inc. v. Dependents of Maxwell, 493 So. 2d 318, 322 (Miss. 1986).
¶9.
The presumption applies in the instant case, as Frank was found dead in his cubicle, where he
performed most of his duties. We find that Baptist has not carried the burden to rebut the presumption.
In summary, these are the facts that they claim rebut the presumption:
(1) Frank was in relatively good health.
(2) He suffered from chronic hypertension.
(3) Frank met with a co-worker approximately ten to fifteen minutes before his death for about
three or four minutes. The co-worker could not tell if Frank was under any stress or if Frank did
not feel well.
(4) Frank talked to a co-worker who could not tell from Frank’s voice that anything was wrong.
(5) A medical doctor, who never examined Frank, stated that Frank’s job did not contribute to his
heart attack.1
¶10.
We cannot say that these facts add up to “substantial credible evidence.” Baptist’s evidence is
based on assumptions. Since the workers’ compensation statutes are to be construed liberally in favor of
the employee, assumptions could just as well, and should, be made in favor of Frank’s dependents. Harper
v. North Mississippi Med. Ctr., 601 So. 2d 395, 398 (Miss. 1992).
X. IN THE ALTERNATIVE, AND ONLY IF THE APPELLATE COURT AGREES
WITH THE FULL COMMISSION ORDER AND THE CIRCUIT COURT THAT
THIS CLAIM IS IN ANY WAY COMPENSABLE, WHICH IS DENIED, THEN
THE APPELLANTS’ ASSERT THAT THE FULL COMMISSION ERRED IN
FAILING TO ORDER APPORTIONMENT.
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The same doctor admitted that extreme emotional stress could have caused the heart attack,
and that he did not know what Frank was doing or feeling immediately prior to the fatal heart attack.
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¶11.
Baptist urges that any recovery should be apportioned according to section 71-3-7 of the
Mississippi Code of 1972 (Rev. 2000). We disagree. Where the cause of death is unknown,
apportionment is inappropriate. U. S. Rubber Reclaiming Co., 508 So. 2d at 677. We know that Frank
died of a heart attack, but the ultimate cause of his death–what caused the heart attack–remains unknown.
Since the cause of the heart attack is unknown, we cannot apportion benefits.
¶12. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, AND LEE,
JJ., CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY IRVING AND CHANDLER, JJ.
GRIFFIS, J., DISSENTING:
¶13.
The Mississippi Supreme Court described the “found dead” presumption in Washington v.
Greenville Mfg. & Machine Works, 223 So. 2d 642, 645 (Miss. 1969) as follows:
The rule is firmly established in this state when an employee is found dead at a place where
his duties require him to be or where he might properly be in the performance of his duties
during work hours in the absence of evidence that he was not engaged in his employer’s
business, there is a presumption that the accident arose out of and in the course of his
employment.
In Road Maintenance Supply, Inc. v. Dep. of Maxwell, 493 So. 2d 318, 321(Miss. 1986), the court held
that the presumption would disappear upon “credible evidence that the deceased employee’s work
‘activities did not cause or contribute to the heart attack.'" In Johnston v. Hattiesburg Clinic, P.A., 423
So. 2d 114, 119-20 (Miss. 1982) the court ruled:
In order to overcome the presumption of causal connection not only must the cause of
death be explained, but the work activities of the decedent must also be fully developed
to show that such activities did not cause or contribute to the heart attack.
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¶14.
In this case, the Commission failed to consider several undisputed facts. These facts clearly support
Baptist's position that the “found dead” presumption was rebutted and that Frank Mullett’s death was not
caused by or contributed to through his employment.
¶15.
In overturning the administrative law judge’s decision, the Commission first concluded that Mr.
Mullett’s activities were not accounted for during the sixty to seventy-five minutes prior to his death. Next,
the Commission concluded that no credible medical expert testimony was presented to show that Mr.
Mullett’s death was not caused by work-related activities. Both of these conclusions are contrary to the
evidence in the record.
¶16.
First, Johnston provides that, for the presumption to be overcome, Mr. Mullett’s activities
immediately preceding his death must be “fully developed.” Id. The Commission’s order repeatedly states
that his activities were not accounted for during the sixty to seventy-five minutes prior to his death. This
conclusion is simply not supported by the record. Indeed, there was detailed evidence of what Mr. Mullett
did from the evening before through the time of his death, at approximately 1:30 p.m. on January 12th.
¶17.
The record reveals that Mr. Mullett was experiencing difficulty contacting his personal physician,
Dr. Bob May, to obtain a prescription refill. Dr. May had previously treated Mr. Mullett for his high blood
pressure and prescribed medication. In the days prior to his death, Mr. Mullett complained that he was not
able to reach Dr. May to refill his high blood pressure medication prescription.
¶18.
The evening before his death, January 11th, Mr. Mullett complained to his wife that it had been a
“tough day." From 6:00 until 10:00 p.m. that evening, Mr. and Mrs. Mullett painted their bedroom in
anticipation of the arrival of new furniture the next day. They had moved their furniture out of their
bedroom and were “roughing” it until the new furniture arrived.
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¶19.
On the morning of January 12th, according to Mrs. Mullett, Mr. Mullett seemed a little bothered
and commented that he needed to get the prescription from Dr. May. He did not complain about any
headaches or a high reading on his blood pressure monitor, but his Day Timer indicated that he had called
Dr. May at home that morning. Mr. Mullett went to work at 7:00 a.m. He had a 10:00 a.m. meeting.
After the meeting, he went to workout at the fitness center. He returned to his office around noon. From
noon until he began experiencing problems, at approximately 1:15 p.m., he was in or around his desk and
cubicle.
¶20.
Paula Katherine McCormack, a registered nurse, testified that she worked in the office with Mr.
Mullett, and she attended the 10:00 a.m. meeting. She testified that there was nothing significant about the
10:00 meeting, and said it had been a “nice meeting.” She testified that her desk was about fifty feet from
Mr. Mullet's desk. She said they were in the same office, but different cubicles. She testified that Mr.
Mullett came to her cubicle, sat and spoke with her about ten or fifteen minutes prior to his collapse. She
remembered that time to be approximately 1:00 p.m. She testified they were joking around, and she did
not see anything physically wrong with Mr. Mullett. Their visit lasted approximately three or four minutes.
Ms. McCormack was the first medical professional to respond and treat Mr. Mullett once he began
experiencing problems.
¶21.
Norval Yerger testified that his desk was next to Mr. Mullett’s desk, only separated by a partition.
Mr. Yerger testified that he was with Mr. Mullett at the 10:00 a.m. meeting and that Mr. Mullett left to go
to lunch at about 11:00 a.m. He too testified that it was a “good meeting.” He testified that some of the
meetings had been stressful, but Mr. Mullet had accomplished several things and his supervisors were
pleased. Mr. Yerger testified that “we all felt good about the meeting.” Mr. Yerger testified that Mr.
Mullett returned to the office around noon and went to his desk. Mr. Mullet told Mr. Yerger that he had
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been at the gym during lunch and that it was a “rough workout.” Mr. Yerger could hear Mr. Mullett sit
down in his cubicle and make a telephone call. Mr. Mullett was on the phone when Mr. Yerger heard him
began to wheeze. Mr. Yerger testified:
Then I heard him making a strange sound, kind of a wheezing sound. At first I thought he
was laughing and then it kept on. And I said, “Frank are you all right?” And he didn’t
answer. And so I kind of got up and looked, and he was slumped back in his chair like
this, you know, like he was - something was wrong with him.
Mr. Yerger called Ms. McCormack for assistance.
¶22.
The testimony of these witnesses chronicle Mr. Mullett's activities up to the moment he collapsed.
From approximately noon until he began experiencing problems at 1:15 p.m., Mr. Mullett was either talking
with or in the immediate vicinity of his co-workers. None of the co-workers could indicate any stressful
event or problem that could have caused or contributed to Mr. Mullett’s death. The Commission’s
conclusion that sixty to seventy-five minutes prior to Mr. Mullet's death were unaccounted for is not based
on the evidence presented.
¶23.
Second, the Commission held that no “credible expert medical testimony” was presented by the
employer which rebuts the “found dead” presumption. Dr. James L. Crosthwait, a board-certified internist
and specialist in cardiology, testified by deposition. Although he did not examine Mr. Mullett prior to his
death, Dr. Crosthwait reviewed Mr. Mullett’s medical and employment records and determined that Mr.
Mullett “suffered from sudden death syndrome.” Dr. Crosthwait testified that the most likely cause of this
was “sudden failure of the heartbeat.” He also testified that Mr. Mullett's job did not contribute to his death
finding that “the job did not cause or contribute to his heart disease or to the sudden death episode.” Dr.
Crosthwait testified that the more likely cause of death was high blood pressure, concluding that “[p]oorly
controlled hypertension is a risk factor for a heart attack and sudden death.” Dr. Crosthwait's testimony
10
refutes the Commission's determination that “no credible medical testimony” was presented by the employer
to rebut the “found dead” presumption. Dr. Crosthwait's opinion was credible medical evidence that Mr.
Mullett died from an non-work related heart condition.
¶24.
These two elements combined with the evidence that Mr. Mullett was suffering from high blood
pressure, the testimony of all of his co-workers that the day in question was not a stressful one, and the
evidence that Mr. Mullett’s stress level had tapered off clearly demonstrate that the judgment of the
Commission was not supported by substantial evidence.
¶25.
This case is analogous to Union Producing Co. v. Simpson’s Dependants, 251 Miss. 183, 168
So. 2d 808, 808 (1964). In Union Producing Co., the employee died at work of a heart attack. Id. at
187, 168 So. 2d at 809. The employer presented evidence of a pre-existing condition, provided details
of the employee's work, and developed the facts until the employee's death. Id. at 194, 168 So. 2d at 813.
The supreme court held:
Since the Employee was not under any mental strain resulting from his work, and the
physical efforts of his job, in the words of claimant, required him to lift nothing heavier than
a pencil and a piece of paper, it cannot be said that there is any substantial connection
between his terminal heart attack and his employment.
Id.
¶26.
Here, Baptist presented “credible evidence” that Mr. Mullett’s work activities did not cause or
contribute to his death. Road Maintenance Supply, Inc., 493 So. 2d at 321. For the presumption to
disappear, Mississippi law does not require the employer to prove this by clear and convincing evidence
or by a preponderance of the evidence. Instead, the presentation of “credible evidence” is sufficient for
the presumption to disappear. Id. See also Washington v. Greenville Manufacturing & Machine
Works, 223 So. 2d 642, 647 (Miss. 1969) (“found dead” presumption disappears if credible evidence
11
exists that the deceased employee's work activities did not cause or contribute to the heart attack) (also
cited and quoted with approval in Johnston v. Hattiesburg Clinic, P.A., 423 So.2d 114, 119-20
(Miss.1982); Alexander v. Campbell Construction Company, 288 So.2d 4, 5 (Miss.1974); McCarley
v. Iuka Shirt Co., 258 So.2d 421, 422 (Miss.1972); City of Okolona v. Dependent of Harlow, 244
So.2d 25, 26 (Miss.1971)).
¶27.
Accordingly, the Commission clearly erred in determining that Baptist did not satisfactorily rebut
the “found dead” presumption to show that Mr. Mullett’s death did not arise out of or in the course of his
employment. For these reasons, I disagree with the majority's decision and dissent.
IRVING AND CHANDLER, JJ., JOIN THIS SEPARATE OPINION.
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