Yost v. Wyoming State Treasurer Ex Rel. Wyoming Worker's Compensation Division

654 P.2d 137, 1982 Wyo. LEXIS 411

• Court: Wyoming Supreme Court
• Decided: December 2, 1982
• Docket: 5721
• Status: Published

Opinions

ROSE, Chief Justice.

The issue in this case asks whether the fatal heart attack suffered by worker Gale Allen Yost is compensable under the Wyoming Worker’s Compensation Act, §§ 27-12-101 through 27-12-805, W.S.1977. We will hold that it was, thereby reversing the trial court.

FACTS

Gale Allen Yost was a truck driver who, during the period of time that he was employed by S & S Trucking, Inc., suffered a serious, nonfatal heart attack. The precise time or place of this first attack is not known, but the medical testimony was that it occurred two days to two weeks prior to death.

Subsequently, on August 12, 1981, Yost rode to work with Donald Collins and complained to him that he felt as though he had been up all night even though that was not the case. Mr. Yost began work at about 7:00 a.m., and throughout the morning his fellow workers noticed that he appeared sickly and was complaining that he did not feel well. Shortly after work began, Stanley Bevier loaded Yost’s truck at the ben-tonite pit and it was then that Yost said to Bevier, “I ache all over. I just don’t feel good.” Yost thought he might be coming down with the flu.

Approximately one half hour or 45 minutes before his death, Yost’s truck became stuck on the pile where bentonite was unloaded. While he waited for a tractor to push him out he sat in a truck with Mr. Coyle for approximately one half hour. Coyle testified that while they were waiting, Yost complained of heartburn and appeared pale. It was then that Yost asked Coyle for some Rolaids but Coyle did not have any.

At about 9:00 a.m., Gale Yost walked into the Colony Truck Stop, asked for something for an upset stomach and was given an antacid tablet. He took the tablet, sat down on a davenport and immediately slumped down, unconscious. He had no pulse or respiration, and all efforts to revive him failed.

At the trial, the uncontroverted expert testimony was that the cause of death was a complication of the heart attack Yost had suffered two days to two weeks earlier. Relying on the autopsy report by Dr. Bloe-mendaal, an expert pathologist, and the testimony of the witnesses about the work conditions and the sudden nature of the death, Dr. Said gave his opinion as follows:

“ * * * I think that he had suffered the heart attack before, which I have stated could be two days to two weeks, and probably his size of the infarction increased because they mentioned in the autopsy he had an acute inflammatory reaction and this, of course, could be caused by the exertion, by the stress-contributing factors and so on. However, those activities he had mostly provoked more demand to the heart, more oxygen demand, and just the artery could not deliver that demand, could not deliver adequate amount of oxygen. This caused arrhythmia and ventricular fibrillation and death, which just in a few minutes you will be gone.”

Dr. Said further said:

“ * * * [T]his extension of the heart and because of the exertion he had, because he should have been having bed rest, this was further demand to the oxygen for the myocardium, and he could not just deliver that oxygen and he collapsed.”

Dr. Said stated the reason Yost’s work activity was damaging:

“You see, that’s the main thing, is just rest. It is absolutely essential to allow that area time because the other arteries have to carry the load of all the blood to the heart, you see. So if we make more active then the heart will demand more oxygen and the heart cannot carry further blood so he will go into failure, into complications.”

Dr. Said went on to say:

“Well, physical exertion, the main thing it is increasing the demand on the heart, and in this particular case, which was critical, was rest, the reason because of the coronary artery occlusion, which was complete. Then the blood has to go through the other artery which was not narrowed to ten to thirty percent. So, he had really a very compromised heart, and he really had to rest, not to increase the demand to his heart.”

Dr. Said also gave his opinion as to what is normal or usual activity for a person who has had a heart attack within the preceding two weeks by stating:

“ * * * As I told you, this takes, the scar which forms in the heart, it takes about two months to heal, and there is absolutely no normal activity during that time, no matter even if it was the smallest heart attack, let alone if it is a big anterior with complications — probably takes longer."

It was Dr. Said’s opinion that the heart attack Gale Yost suffered two days to two weeks before his death caused an occlusion of the right coronary artery. The two coronary arteries on the left side of the heart were previously narrowed by atherosclerosis. After the heart attack the arteries on the left were supplying the oxygen demand of the entire heart. This condition was described by the doctor as a “very compromised heart,” requiring rest, oxygen and medication to avoid fatal arrhythmia. The effect of continued work was a very big factor in producing the arrhythmia that caused Yost’s sudden death.

In sum, for purposes of this opinion, we have a truck driver with a serious heart attack two days to two weeks before a fatal attack which occurred while the deceased worker was discharging his truck-driving duties for his employer. Additionally, we have expert testimony to the effect that

(a) the continued work exertion after the first heart attack was a big factor in causing the second;

(b) that there is “no normal [work] activity” during the period immediately following the first heart attack “no matter even if it was the smallest heart attack, let alone if it is a big anterior with complications” (as was the case with Mr. Yost’s first attack).

OPINION

The State candidly admits in argument that this appeal is brought so that we will have a vehicle with which to overrule our unanimous decision in Wyoming State Treasurer, ex rel. Wyoming Worker’s Compensation Division v. Schwilke, Wyo., 649 P.2d 218 (1982).

This we decline to do. We will reverse the decision of the district court in this ease with recognition that the trial judge did not have the guidance of the Schwilke decision, supra, when he rendered his decision denying worker’s compensation benefits to Yost’s survivors although the State of Wyoming did have the benefit of that decision when the case was argued before this court.

The rule of Schwilke is good law, supported by modern worker’s compensation authority and we will not upset it in a case that was argued less than six weeks after the publication of the Schwilke decision.

In Schwilke we had an almost identical set of facts to those we have here. If anything, the facts in this case are stronger and more clear-cut with respect to the application of the appropriate rule.

At the outset, the statute upon which the State relies in seeking denial of worker’s compensation benefits is § 27-12-603(b), W.S.1977, which provides:

“Benefits for employment-related coronary conditions except those directly and solely caused by an injury or disease are not payable unless the employee establishes by competent medical authority that there is a direct causal connection between the condition under which the work was performed and the cardiac condition, and then only if the causative exertion occurs during the actual period of employment stress clearly unusual to, or abnormal for, employees in that particular employment, and further that the acute symptoms of the cardiac condition are clearly manifested not later than four (4) hours after the alleged causative exertion.” (Emphasis added.)

It is said that there is no evidence that “causative exertion” occurred during a period of “employment stress” which was “ * * * clearly unusual to, or abnormal for, employees in that particular employment, * * *.” § 27-12-603(b), supra. This argument would have us ignore or hold insufficient the doctor’s testimony that once the first heart attack occurs, there is no such thing — for this individual — as “normal [work] activity,” i.e.,

“ * * * there is absolutely no normal [work] activity during that time, * *

In Schwilke we said, in response to the identical argument that the State makes here:

“Likewise, we are of the opinion that the circumstances of this case establish that the stressful work condition was unusual to, or abnormal for the deceased’s employment. Notwithstanding the fact that the actual physical exertion performed by Mr. Schwilke was within the realm of his normal activity, the record reflects that prior to the performance of these tasks he had experienced heart trouble. Under such circumstances, the once normal activity of his work day indeed became very unusual and abnormal for Mr. Schwilke.” (Emphasis added.) 649 P.2d at 222.

We established this rule for Wyoming in heart-attack cases based on adequate and, we believe, the best reasoned authority. To start with, we were, in Schwilke, merely reiterating the same concept as that which we had previously recognized in Mor, Inc. v. Haverlock, Wyo., 566 P.2d 219, 222 (1977), when we said:

“It should be emphasized, however, that the exertion in question must only be unusual to the employee — it need not necessarily be unusual to others engaged in the same employment. Herbert v. Sharp Brothers Contracting Co., Mo.App., 467 S.W.2d 105, 108. See also, Commercial Transfer Company v. Quasny, 245 Md. 572, 227 A.2d 20, 24.” (Emphasis added.)

Other courts and text writers have adopted positions consistent with the rule of Schwilke. See IB Larson’s Workmen’s Compensation Law § 38.64(c), p. 199, 1979 ed., where the author says:

“ * * * [I]f, as many jurisdictions have done, the ‘accidental’ is identified with the ‘unusual,’ then it is a simple matter to go on and say that it is most unusual for a man in the throes of a heart attack to go on exerting himself. Something like this appears to have been in the mind of the New Jersey Supreme Court when it said [in Aladits v. Simmons Co., 47 N.J. 115, 219 A.2d 517 (1966) ]: ‘If ... a heart attack was ongoing ... it becomes obvious that when Aladits resumed his loading endeavors, the strain involved in terms of impact on him was no longer the usual one.’ Although the exertions may have been the same, the man, so to speak, was now different. He was now a man undergoing a heart attack; and the usual exertions for the healthy man become transformed into unusual exertions for the stricken man.” (Emphasis in text.)

In Aladits v. Simmons Co., 47 N.J. 115, 219 A.2d 517 (1966), the deceased, a healthy man in heavy work, had complained to his daughter at 10:00 a.m. that he did not feel well and was going to seek permission to go home but died of a heart attack a few hours later while working and before he contacted his superiors for permission to leave the work place. The court, in upholding the compensation award, said:

“The doctor opined that the work decedent did on the morning of January 25, 1960 was a major contributing factor in initiating the coronary attack. On the basis of the daughter’s testimony he felt the attack started about 10:00 A.M. when Aladits told her he was not feeling well. And in the doctor’s judgment continuance of the heavy type of physical exertion in loading the trucks increased the severity of the attack to the extent that it resulted in death. In sum his view was that the cumulative effect of the work effort before 10:00 A.M. initiated the heart attack and continuance of the effort thereafter increased its extent and severity to the point of fatality.” 219 A.2d at 520.

The court goes on to say:

“ * * * [W]hen a specialist in internal medicine after considering the complaint in the context of the collapse opines that Aladits was probably undergoing a heart attack at about 10:00 A.M., his statement has rational evidentiary capacity. If the doctor’s view is accepted that a heart attack was ongoing at 10:00 A.M., and on all the facts we cannot say the opinion is unreasonable and should not be accepted, it becomes obvious that when Aladits resumed his loading endeavors, the strain involved in terms of impact on him was no longer the usual one. As the doctor indicated it was too great for his condition to withstand; so it intensified the heart attack as he continued his work to the point where the collapse and death ensued. In our judgment this is a rationally acceptable conclusion.” (Emphasis added.) 219 A.2d at 521.

In Thornton v. Alaska Workmen’s Compensation Board, Alaska, 411 P.2d 209 (1966), the worker was in the throes of a heart infarction process for eight hours before death. Immediately prior to his death, he climbed a high tower and lifted a block and tackle after him. The Supreme Court, in overruling the trial court’s denial of the award, relied upon the doctor’s testimony. The court said:

“Dr. Marrow testified that under the circumstances relating to Thornton’s climbing the tower and pulling the block and tackle up after him, and to his pre-exist-ing heart disease, that the exertion that Thornton had undergone just prior to his death accelerated his death, that sudden exertion is notoriously detrimental to heart disease, and that it would be reasonable to expect that even with an in-farcted area such as Thornton had, there would be an acceleration of the time of death by reason of the climb to the top of the tower.” 411 P.2d at 410-411.

Thus, the court held that the death was work-connected and hastened by a man with a pre-existing heart disease doing the work that he ordinarily did.

In Hanna v. Post & Brown Well Service, 199 Kan. 757, 433 P.2d 356, 362 (1967) the immediate cause of death was myocardial infarction due to coronary occlusion evolving from arteriosclerotic heart disease of several years’ duration. The court said:

“If a workman’s existing physical condition, whatever it may be, gives way under the stress of his usual labor, his death is an accident which arises out of his employment. In Gilliland v. Ash Grove Lime & Portland Cement Co., 104 Kan. 771, 180 P. 793, it was stated, ‘ “An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health.” ’ (104 Kan. p. 776, 180 P. p. 795.)”

In City and County of Denver v. Industrial Commission, Colo., 579 P.2d 80, 82 (1978) the relevant statute provided:

“ ‘ “Accident” or “injury” shall not be construed to include disability or death caused by heart attack unless it is shown by competent evidence that such heart attack was proximately caused by an unusual or extraordinary overexertion arising out of and within the course of the employment.’ ”

The police officer with a history of prior heart condition had a cardiac arrest while performing what is ordinary duty for police officers — investigating an armed robbery. The Colorado Supreme Court, citing, among other authorities, Mor, Inc. v. Haverlock, Wyo., 566 P.2d 219 (1977), said:

“We also hold that unusual or extraordinary overexertion, as used in section 8-41-108(2), does not require that the work causing the attack be different in nature from the employee’s usual work. The unusual overexertion doctrine must be applied according to the employee’s work history rather than the work patterns of his profession in general. Blood v. Industrial Comm., 165 Colo. 532, 440 P.2d 775 (1968). See also Schecter [v. State Ins. Fund, 6 N.Y.2d 506,190 N.Y.S.2d 656,160 N.E.2d 901 (1959)], supra; Hamilton v. Procon, 434 Pa. 90, 252 A.2d 601 (1969); McWhorter [v. South Carolina Dept. of Insurance, 252 S.C. 90, 165 S.E.2d 365 (1969)], supra; Mor, Inc. v. Haverlock, 566 P.2d 219 (Wyo.1977).” 579 P.2d at 82-83.

Again, in Borough of Aliquippa v. Workmen’s Compensation Appeal, Board, 18 Pa. Cmwlth. 340, 336 A.2d 450, 452 (1975), the court held that the unusual-strain doctrine must be applied according to the work history and condition of the individual. In this case the police officer had a preexisting heart condition and suffered the attack for which he claims compensation while breaking up a fight and pursuing one of the combatants. The court said:

“The unusual strain doctrine is applicable to a case such as this, and the doctrine must be applied according to the work history of the individual involved and not the work pattern of his profession in general. See Hamilton v. Procon, 434 Pa. 90, 252 A.2d 601 (1969).”

The conclusion that must be drawn from Schwilke and supporting cases is that facts which show that a worker who has suffered a heart attack, and who thereafter experiences a second incapacitating attack while in the course of his employment and while doing what would otherwise be considered his usual work tasks, will be regarded as having satisfied that part of the Wyoming Worker’s Compensation statute (§ 27-12-603(b)) which provides that such a worker will be eligible for compensation benefits only if

“ * * * the causative exertion occurs during the actual period of employment stress clearly unusual to, or abnormal for, employees in that particular employment, ⅜: * * M

In this case, the worker had experienced a prior heart attack, after which the doctor said there was absolutely no “normal [work] activity” during the two-month period it would take to heal the original wound.

For this heart-attack victim, the otherwise usual and normal employment stress became “unusual” and “abnormal” within the contemplation of the statute.

Reversed, with directions that judgment be entered in favor of the claimants.