COUCH v. ARKANSAS STATE POLICE, 1997 AWCC 239

CLAIM NO. E500890

BILL COUCH, EMPLOYEE, CLAIMANT v. ARKANSAS STATE POLICE, EMPLOYER, RESPONDENT and PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 29, 1997

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by JASON WATSON, Attorney at Law, Fayetteville, Arkansas.

Respondents represented by RICHARD SMITH, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] An Administrative Law Judge entered an opinion and order in the above-captioned claim on September 11, 1996, finding that claimant sustained a compensable myocardial infarction on October 29, 1994.

[3] Respondents now appeal from that opinion and order, contending that claimant has failed to prove that his October 29, 1994, myocardial infarction is compensable under Act 796 of 1993. [4] Following our de novo review of the entire record, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he sustained a compensable myocardial infarction (heart attack) on October 29, 1994. The decision of the Administrative Law Judge is therefore affirmed. [5] Claimant is a thirty-year veteran of the Arkansas State Police, and has served as a “Post Sergeant” since 1979. At the hearing on this matter, claimant described his job duties as follows:

Q. And what are your primary responsibilities or duties in your Post Sergeant position?
A. Well, as a Post Sergeant, my duties changed quite drastically from being an enforcement officer on the highway on a daily basis, full time, to a supervisory position, which consists of supervising the troopers, administrative duties, personnel investigations, dealing with the news media, dealing with public officials, and that sort of thing.
Q. What percentage of your time do you now spend in actual highway patrol?
A. To describe highway patrol duties, about twenty percent, I would guess, fifteen to twenty percent, somewhere in that vicinity. Out of that fifteen to twenty percent, there is a lot of that time traveling from point A to point B, to the Sheriff’s Dept (sic), to contact different troopers in different areas of the troop, going to courts, going to contact people to do with investigations and that sort of thing. During that course of travel, I do drive a marked car, so if I observe a traffic violation in that course of employment, then I am required to take some type of enforcement action. I’m also required, as part of my highway patrol duties, to be at sobriety checkpoints and motor vehicle inspection and drivers license checkpoints. Although I may not do the actual work that the highway patrol troopers are, I am there, and I think that would have to be considered as part of highway patrol duties.

[6] While traveling in his patrol car on October 29, 1994, claimant observed a pick-up truck coming from the opposite direction at nearly 90 miles per hour. Claimant reversed course and gave pursuit, eventually ending up on a dirt road which he described as “extremely narrow, it was crooked, it was hilly, it had some narrow bridges — there was a narrow bridge on it.” The pursuit lasted approximately five or six minutes, and was conducted under less than ideal circumstances:

Well, of course, being a graveled road, it being narrow, the car will bottom out; a lot of gravel hits the car; it’s sliding, the back of the car, and sometimes the front is sliding from left to right. You’re being jostled around in the car. You’re constantly making corrections with your steering wheel to keep from getting in the ditch; you’re accelerating, you’re braking, and trying to I guess talk on the radio and let everybody know where you’re at, and everything at the same time, so I would say it is, yes.

[7] Claimant eventually lost sight of the suspect, and began to experience chest pains and shortness of breath. At that point, Sergeant Keith Ferguson, a fellow State Trooper, radioed claimant and suggested that he pull over. At the hearing, Sergeant Ferguson stated that claimant:

Looked like he was having a heart attack to me, just what few people I’ve been around that has had heart problems. He couldn’t get his breath; he tore his shirt open, his Sam Brown off, and he was stretching way back, trying to get deep breaths. He was having problems.

[8] Sergeant Ferguson transported claimant to the emergency room, where the latter was assessed as suffering from an “acute inferior myocardial infarction.” Upon the recommendation of Dr. James Haisten, claimant underwent an immediate left heart catheterization and intra-aortic balloon pump placement. [9] Because claimant asserts the occurrence of a work-related heart attack after July 1, 1993, the provisions of Act 796 are applicable to this claim. Claimant must therefore satisfy the requirements of Ark. Code Ann. § 11-9-114 (Repl. 1996). That statute provides, in its entirety, that:

(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 burden of proof.

[10] We are persuaded by the record before us that claimant’s heart attack of October 29, 1994, was precipitated by an “accident,” which was also an unusual and unpredicted incident, and was the major cause of the resulting physical harm claimant sustained. [11] The Arkansas Court of Appeals has recently addressed the interpretation to be given the word “accident” in the context of Ark. Code Ann. § 11-9-114 (Repl. 1996). In City ofBlytheville v. McCormick, 56 Ark. App. 149, ___ S.W.2d ___ (1997), the Court held that:

After so comparing the statute in question to other provisions of Act 796 of 1993, we find that the legislature employs the word “accident” in the sense of an event “caused by a specific incident and identifiable by time and place of occurrence.” See Ark. Code Ann. § 11-9-102 (5)(A)(i) (Repl. 1996). In light of this construction and the evidence that the appellee suffered a heart attack while ventilating the roof of the burning building, we hold that the Commission did not err in finding that an accident was the major cause of the appellee’s heart attack.

[12] We specifically find that the high-speed chase in which claimant participated on October 29, 1994, constitutes a “specific incident identifiable by time and place of occurrence” and, bearing in mind the Court of Appeals’ holding in McCormick,supra, we further specifically find that claimant’s heart attack was preceded by a work-related accident within the meaning of Ark. Code Ann. § 11-9-114 (Repl. 1996). As set out below, we also find that said “accident” amounts to an “unusual and unpredicted incident” as per Ark. Code Ann. § 11-9-114 (b)(1) (Repl. 1996). [13] While it cannot be said that high-speed chases are unheard of in law enforcement, the evidence in the instant case reveals that such an event was decidedly uncommon to the particular work activities claimant was required to perform. When asked at the hearing how many high-speed pursuits he had engaged in that were similar to that of October 29, 1994, claimant estimated that there had been no more than five or six over his thirty year career. Also, Captain Winford Phillips, claimant’s immediate supervisor, provided the following exchange of testimony:

Q. Is it true that the higher up the chain of command you get in the post, the less time you spend on the highway?

A. Yes, sir.

Q. The frequency of those high speed pursuits is greatly reduced?

A. That’s correct.

[14] Finally, Sergeant Ferguson testified that he had been involved in only three pursuits during his eleven years as a Post Sergeant, and that neither he nor claimant had been involved in any high speed pursuits during all of 1995. In fact, the record indicates that the entirety of Troop L (to which claimant and Sergeant Ferguson belong engaged in only nine total pursuits during the same period. Based on this evidence, we specifically find that the high-speed pursuit in which claimant participated on October 29, 1994, constituted an “unusual and unpredicted incident.” [15] Finally, we find that the episode of October 29, 1994, was the major cause of the physical harm claimant suffered in the form of a myocardial infarction. Claimant’s incapacitating heart attack occurred only moments after his participation in the high-speed chase described above, and required immediate medical attention in the form of invasive surgery. We find that this temporal proximity is sufficient to establish a “major cause” relationship between claimant’s participation in the high-speed pursuit and his subsequent heart attack. [16] Based on our de novo review of the entire record, and for the reasons discussed herein, we specifically find that claimant’s heart attack of October 29, 1994, was preceded by an employment-related “accident,” which was also an “unusual and unpredicted incident,” and which acted as the major cause of claimant’s resulting physical harm. [17] Accordingly, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he sustained a compensable myocardial infarction on October 29, 1994. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed. [18] All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). [19] For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 as per Ark. Code Ann. § 11-9-715
(b) (Repl. 1996). [20] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner

[21] Commissioner Wilson dissents.

[22] DISSENTING OPINION
[23] I respectfully dissent from the majority’s opinion finding that the claimant sustained a compensable heart attack on October 29, 1994. Based upon my de novo review of the entire record, I find that claimant has failed to meet his burden of proof.

Ark. Code Ann. § 11-9-114 (Repl. 1996) 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 a disability or death was extraordinary or unusual in comparison to the employees usual work in the course of the employees regular employment or alternatively, that some unusual or 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 burden of proof.

[24] The evidence is undisputed with regard to the events leading up to claimant’s myocardial infarction on October 29, 1994. During the course and scope of his employment as a State Trooper, claimant was involved in a five to ten minute high speed chase of a pick-up truck which traveled north on highway 71, exited the highway and turned onto a gravel road. The gravel road was narrow, curved and hilly and claimant eventually lost the suspect. During the pursuit claimant began to experience chest pains and shortness of breath. Sergeant Keith Ferguson arrived at the scene and transported claimant to the emergency room. Claimant was diagnosed with having had a myocardial infarction and a cardiac catheterization and angioplasty were performed. The cardiac catheterization report revealed the following findings “Arteriosclerotic heart disease with acute apical myocardial infarction and an occluded mid LAD with successful PTCA of the LAD.” When asked during his recorded statement if he was experiencing what claimant would consider stress during the high speed chase claimant stated:

I think I was experiencing an extreme amount of stress, yes. I think from the point that I turned off the highway, uh . . . at the stop sign, off the exit on the service road, I think at that time, uh as I came around the curve, you know on the exit ramp I realized that he was trying to get away from me, and I knew where he was going, and I think from that point on, I think the stress level . . . I was under some stress anyway, anytime you drive like that, but at that point on I think that the stress level increased steadily.

[25] When asked to provide an opinion with regard to the cause of claimant’s myocardial infarction, claimant’s treating cardiologist Dr. James A.S. Haisten noted in his October 23, 1995, report:

I do feel that the stress involved in the emotionally charged chase over narrow crooked roads was a definite aggravating factor that would play a causal connection in the precipitation of the acute anterior myocardial infarction that Mr. Couch suffered on October 29, 1994.

[26] In my opinion, in order to find that claimant has met his burden of proof, stress must be considered. As claimant explained in his recorded statement he was under extreme stress that continually increased just prior and leading up to claimant’s myocardial infarction. Moreover, claimant’s treating physician listed stress of the emotionally charged pursuit, and not the exertion or physical activity of the chase, as a causative factor for claimant’s myocardial infarction. Absent stress, there is no other evidence in the record aside from claimant’s pre-existing arteriosclerotic heart disease, with regard to the cause of claimant’s myocardial infarction. The majority does not discuss the medical reports which clearly relate claimant’s heart attack to stress [27] Accordingly, for those reasons stated herein, I find that claimant has failed to prove by a preponderance of the evidence that his myocardial infarction is compensable. Specifically, the only evidence in the record regarding causation is stress. Stress cannot be considered in determining whether a claimant has met his burden of proof. Therefore, I respectfully dissent from the majority opinion. [28] MIKE WILSON, Commissioner