LEDBETTER v. HUFFY SERVICE FIRST, 2001 AWCC 123

ANITA LEDBETTER, WIDOW OF DOYLE LEDBETTER (DEC’D), EMPLOYEE, CLAIMANT v. HUFFY SERVICE FIRST, EMPLOYER, RESPONDENT, LUMBERMEN’S MUTUAL CASUALTY CO., INSURANCE CARRIER, RESPONDENT

CLAIM NO. E809014Before the Arkansas Workers’ Compensation Commission
OPINION DELIVERED OPINION FILED MAY 25, 2001

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

Claimant represented by the HONORABLE TERENCE C. JENSEN, Attorney at Law, Benton, Arkansas.

Respondents represented by the HONORABLE ERIC NEWKIRK, Attorney at Law, Little Rock, Arkansas.

Decision of administrative law judge: Reversed.

OPINION AND ORDER
The claimant appeals to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed October 26, 2000. The administrative law judge found that the claimant did not “meet her burden of proof that the work activity Doyle Ledbetter, deceased, was engaged in on August 11, 1997, was the major cause of his fatal heart attack.” Afte de novo review of the entire record, the Full Commission finds that a preponderance of the credible evidence establishes that the claimant sustained a compensable heart attack on August 11, 1997. We therefore reverse the opinion of the administrative law judge.

I. HISTORY

Allen Murford and the decedent, Doyle Ledbetter, (DOB 3/22/39) began working together at various locations for Huffy Service First in about 1996. Mr. Murford testified, “We were assemblers for tractors, exercise equipment, bikes, grills, whatever they needed put together.” In addition to working at other sites, Murford and Ledbetter were occasionally required to work at the Sears store in Hot Springs, Arkansas. Mr. Murford testified, “The work environment at Sears was okay inside when we were putting bicycles together and grills and that type of thing. When it got to the tractors, when it got hot, it just got unbearable out there on the asphalt. . . . It was in the back pickup area, like on the blacktop. It used to get so hot down there we couldn’t even pick up our tools. We would burn our hands. . . . if you wanted to fry an egg, you could do that real easy.”

Assemblers for Huffy First were paid by the piece. Mr. Murford estimated that a usual shipment of tractors encompassed 15 to 20 pieces, and he testified:

Q. Now at the Sears location, let’s say they got a large number of tractors in to assemble in one day. If you had a hot day, could you work half the day and take off and finish the tractors up the next day.

A. No, you could not.

Q. Why was that?

A. There’s the security problem. Any tractors that came off the trucks had to be assembled that day before closing time because they didn’t have no place to put them once they were off the truck.
Q. So if you got a big load in at Sears, a big load of tractors in, you’d have to work until you got them done?
A. Yes, we worked until 8:00, 9:00, well, 8:00, 8:30 at night. We had to get them done. They didn’t have no security, or else somebody would have stolen them.

Mr. Murford eventually left his employment with Huffy Service First, because of the Sears location in Hot Springs. “It was too hot,” he testified. “I couldn’t handle it. It was just too much.” Mr. Murford testified that the decedent continued to work for the respondents, to Murford’s knowledge assembling the same amount of pieces, including tractors.

According to Michael S. Kidd, Area Manager for Huffy Service First, Mr. Ledbetter requested to be off the week prior to August 11, 1997. Mr. Kidd testified, “The reason he gave me was that he hadn’t been feeling well and he had had chest pains and wanted to get them checked out. And that was the extent of it.” There is no record of any medical treatment for Mr. Ledbetter in the week prior to August 11, 1997. Mr. Kidd said it was “very possible” that the claimant had complained to him about the working conditions at Sears.

The parties stipulated that the employer-employee relationship existed on August 11, 1997. The decedent’s wife, Anita Ledbetter, testified that the temperature that day rose to between 103 and 105 degrees Fahrenheit. Ms. Ledbetter testified:

Q. Now had you talked to Doyle, Mr. Ledbetter, at all before he went to work for Sears on August 11, 1997?

A. Yes.

Q. Did he make any mention to you about how his day was going to be or what he was going to do at Sears on that particular day?
A. He said he had a lot of tractors to put together. I think he specifically mentioned thirty, about thirty.

Q. Is that an unusually large amount of tractors?

A. Yes.

Q. Did he have any concern with that?

A. Did he?

Q. Did Mr. Ledbetter have any concern about being able to put together that many tractors in one day?
A. Yes, he said it was going to be hard. It was going to be awfully hot.

Michael Kidd agreed that “the store probably had thirty tractors in there to be assembled.” Mr. Kidd testified at cross-examination:

Q. Now did Sears have a place to store the tractors if Mr. Ledbetter didn’t assemble all the thirty tractors in one day?
A. The store did not like to, but yes, they could have pulled the tractors inside.

Q. They could have pulled the tractors inside?

A. Yes.

Q. But they didn’t want to, did they?

A. I don’t know. I wasn’t there at the store that day.
Q. You do know that Sears wanted all the tractors they had placed on the outside. In other words, all the tractors that came in by shipment and they placed in that outside assembly area, they would prefer to have them done that same day?
A. Yes, they would prefer to have them done that same day.
Q. And you knew that when Mr. Ledbetter and Mr. Murford were working together that they always tried to assemble them all the day that they came in?

A. Yes. . . .

Q. On this particular day, August 11, 1997, did Mr. Ledbetter have anybody there working with him or helping him from Huffy First?
A. No, he did not call to have anybody come in and help him out.

Anita Ledbetter testified that her husband “fell out” at Sears at approximately 3:00 p.m. Mr. Ledbetter was transported to the emergency room at St. Joseph’s Regional Health Center. The ambulance service record indicates that the claimant complained of heat exhaustion, “working hard in hot environment.” An emergency room physician’s handwritten note states, “pt had worked hard on tractor became diaphoretic.” The note appears to indicate that the claimant had a “syncopal episode.” (Dorland’s Illustrated Medical Dictionary, 28th Edition, defines “diaphoresis” as “perspiration, especially profuse perspiration.”)

Vicki Norman, the decedent’s daughter, testified that she arrived at the hospital at approximately 4:30 p.m.:

Q. When you saw your father, can you describe for me what condition he was in when you saw him?
A. Yes. He was in the trauma room and he was laying on the stretcher on the table. He was very dehydrated-appearing. He was sweating a little bit. They had cut his clothes off and had a sheet kind of pulled up over him. When I went to him he was kind of clammy, kind of pale.

Q. Did he appear that he had sweated much that day?

A. Yes, his clothes were frosted white with dried salt.
Q. Was that something you saw on a day-to-day basis with your father?

A. No.

Q. Did you see your father just about every day?

A. Yes.

Q. Was it unusual for him to have that much salt about his clothes, sweaty?

A. Yes, that was very unusual.

Q. Did you talk? Did your father describe to you when you were at the hospital what had happened to him that day?
A. Yes. When I saw him, I was very concerned. I said, “What happened?” And he said that it was too hot. He said, “I just worked too hard and it was too hot.”

Q. Did he tell you what he was doing that day?

A. Yes. He told me he was putting together lawn tractors.
Q. Did he tell you how many he was trying to put together that day?

A. Yes, he told me thirty.

Q. Was that a lot for your father to have to do on a particular day?

A. Yes.

Q. Was that a lot for him to have to do by himself?

A. Yes.

Mr. Ledbetter died at approximately 5:45 p.m. on August 11, 1997. Dr. James Tutton dictated the following Emergency Department Record on August 12, 1997:

CHIEF COMPLAINT: Severe shortness of breath and diaphoresis.
HISTORY OF PRESENT ILLNESS: This started suddenly. The patient has had no preceding symptoms. There is some questionable chest discomfort, but this is hard to discern.
PHYSICAL EXAMINATION: The patient is in marked distress. He is diaphoretic, and cool appearing. His heart rate is varying from 120-135, and perhaps even up to 140. His blood pressure is palpated by me in the 100 area. . . . The patient is alert at this time and talking, despite the blood pressure. . . .
The patient’s course proceeding in a down hill fashion. We were never able to convert him to a completely sinus rhythm. Dr. Sharma came in to assist Dr. Pai with thoughts of taking this patient to the catheter lab. The patient’s course was generally down ward. . . . He eventually went into EMD, from which he could not be resuscitated and a code was called.

CLINICAL IMPRESSION:

1. Anterior myocardial infarction, probably inferior wall.

The parties deposed Dr. Balakrishna V. Pai on June 15, 2000. Dr. Pai is a cardiologist who treated Mr. Ledbetter on August 11, 1997. Dr. Pai testified that he arrived at the emergency room about 4:00 p.m. The patient was complaining of chest pain and was sweating. Dr. Pai suspected that the claimant was having a “heart attack,” “cardiovascular event,” or “myocardial infarction.” Dr. Pai was not present at the time of the claimant’s death, because he had to go to another hospital to tend to another cardiac emergency. The claimant’s attorney queried Dr. Pai:

Q. So, you know, assume that he was outside in the heat and working hard in the heat and had this heart attack at approximately 3:00 p.m. And as far as Mr. Ledbetter’s heart history — as far as the history that he had of any heart problems, do you know anything about that?
A. My reports indicate I have seen him in 1994, and at that time he had come to the hospital with chest pain and we had run a stress test on him. Everything was negative. And his care was turned over to the primary care physician, Dr. Reinhart at that time. . . .
Q. Okay. So, we don’t know of any cardiac problems that Mr. Ledbetter had prior to this heart attack of August 11, 1997. Correct?

A. That’s right. . . .

Q. Now, if you will, as we’re trying to assume here — assume that Mr. Ledbetter was involved in physical exertion in the heat and had a heart attack while he was involved in the physical exertion in the heat. Okay? Can you tell me whether the physical exertion that Mr. Ledbetter was involved in on August 11, 1997, when he had the onset of his heart attack, if that was the precipitating factor for the onset of the heart attack?
A. No one knows for sure. But it is most likely or probable that the extreme exhaustion mentioned earlier precipitated the events.
Q. Okay. And when you say more likely, is that more than fifty percent cause at the time of the precipitating event?
A. I don’t know for sure, but in general I would say that it is more likely, you know.

Q. Okay. More likely?

A. More likely than not.

Q. Okay. Right. And what I’m basically asking you is — is more likely than not, with our assumption, more than fifty percent?

A. Yes. I would say more likely than not.

The respondent’s attorney took his turn:

Q. . . . as I understood your testimony on direct examination, a heart attack, which is what Mr. Ledbetter suffered, is usually caused by plaque in the arteries — the bursts. Is that right?
A. Most of the heart attacks are due to build up of the cholesterol plaque. . . .
Q. Okay. And so, most people that are afflicted with heart attacks have a pre-existing build-up of plaque. Is that right?

A. Most people. Yes.

Q. Okay. Most people. In this case, is there any way for you to know for sure whether or not Mr. Ledbetter had a build-up of plaque?

A. Not for sure. . . .

Q. Were you treating Mr. Ledbetter under the assumption that he had a blockage in his artery?
A. That’s right. That’s the way you treat almost all heart attacks.
Q. . . . Assuming that there was a pre-existing build-up of plaque — assuming that was there, what would you consider to be the major cause of the heart attack? And assuming, also, that Mr. Ledbetter was undergoing physical exertion, what would you consider to be the major cause? The pre-existing build-up of plaque or the physical exertion?
A. See — I was told — I read the books and it says that medical reasoning is a little bit different than the legal reason . . . According to medical reason, the pathology shows that the plaque or build-up of the cholesterol progresses, it becomes unstable and rupture (sic). That is a process. That is the real reason for the heart attack. But somewhere down the line, the external events can hasten this rupture. And I don’t know what the legal — so, medically, I would say that the plaque is the reason for the heart attack, but the plaque rupture can be due to severe exertion.

The claimant contended that Doyle Ledbetter suffered a compensable heart attack on August 11, 1997, and that his widow, Anita Ledbetter, was entitled to appropriate dependency benefits. The respondents contended that the claimant could not prove a compensable claim pursuant to Act 796 of 1993. After a hearing before the Commission, the administrative law judge found that the claimant did not “meet her burden of proof of demonstrating by a preponderance of the evidence of record that the work activity Doyle Ledbetter, deceased, was engaged in on August 11, 1997, was the major cause of his fatal heart attack.” The administrative law judge therefore denied and dismissed the claim; claimant appeals to the Full Commission.

II. ADJUDICATION
Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-114 (Supp. 1999), 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 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, alternatively, 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.

A. Major cause

After de novo review of the entire record, the Full Commission finds that the claimant proved by a preponderance of the evidence that Doyle Ledbetter’s work activity on August 11, 1997 was the major cause of his fatal heart attack. In asserting that the claimant failed to meet her burden of proof, the Dissenting Opinion cites Dr. Pai’s testimony that “Most of the heart attacks are due to build up of the cholesterol plaque.” Yet, Dr. Pai testified that he did know whether or not the decedent in the present case suffered from what the Dissenting Opinion
calls a “pre-existing abnormality,” nor can we find any credible evidence of record indicating such a pre-existing condition. Dr. Pai, a cardiologist, testified that he had treated the claimant for chest pain, on one occasion, in March, 1994. Diagnostic testing administered at that time was negative for “cholesterol plaque” or any cardiac abnormality. Dr. Pai testified that he did not suspect that the claimant suffered from heart disease in 1994. Dr. Pai further testified, “We didn’t find any cardiac problem.” There is no further treatment of record related to the employee’s heart until his workplace accident of August 11, 1997, hospitalization, and subsequent death. From the record before the Full Commission, we must assign minimal weight to the Dissenting Opinion’s speculative and conjectural inference that a buildup of cholesterol plaque caused Mr. Ledbetter’s heart attack. Speculation and conjecture can never be substituted for credible evidence. Dena Construction Co. v. Herndon,264 Ark. 791, 575 S.W.2d 151 (1980).

The Dissenting Opinion also asserts that Dr. Pai’s expert medical testimony was not stated “within a reasonable degree of medical certainty.” The Full Commission reiterates Dr. Pai’s testimony, cite supra:

Q. Can you tell me whether the physical exertion that Mr. Ledbetter was involved in on August 11, 1997, when he had the onset of his heart attack, if that was the precipitating factor for the onset of the heart attack?
A. No one knows for sure. But it is most likely or probable that the extreme exhaustion mentioned earlier precipitated the events (our emphasis here and following).
Q. Okay. And when you say more than likely, is that more than fifty percent cause at the time of the precipitating event?
A. I don’t knows for sure, but in general I would say that it is more likely, you know.

Q. Okay. More likely?

A. More likely than not.

Q. Okay. Right. And what I’m basically asking you is — is more likely than not, with our assumption, more than fifty percent?

A. Yes. I would say more likely than not.

“Major cause” means more than fifty percent of the cause; the claimant must establish major cause according to the preponderance of the evidence. Ark. Code Ann. § 11-9-102(14) (Supp. 1999). “Preponderance of the evidence” means “evidence of greater convincing force.” Smith v.Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947).

Dr. Pai credibly testified that it was “most likely” and “probable” that the August 11, 1997 accident precipitated the events leading to the claimant’s hospitalization. Dr. Pai stated that the accident “more likely than not” was more than fifty percent of the cause of the claimant’s need for treatment on August 11, 1997. In Frances v. Gaylord ContainerCorporation, 341 Ark. 527, 20 S.W.3d 280 (2000), the Arkansas Supreme Court cited Ark. Code Ann. § 11-9-102(16) (B) (Supp. 1999), which provides that medical opinions addressing compensability must be stated “within a reasonable degree of medical certainty.” The Supreme Court concluded that expert opinions based on “could,” “may,” or “possibly” lack the definiteness required to meet a claimant’s burden to prove causation pursuant to Ark. Code Ann. § 11-9-102(16).

In the present matter, Dr. Pai did not base his opinion on language such as “could,” “may,” or “possibly.” Rather, Dr. Pai credibly testified that it was “more than likely” that the claimant’s work duties of August 11, 1997 precipitated his heart attack. The Full Commission attaches significant weight to Dr. Pai’s opinion regarding major cause, and we find Dr. Pai’s expert medical opinion to be unequivocal and stated “within a reasonable degree of medical certainty” as announced by the Supreme Court in Frances, supra. Accord Freeman v. Con-Agra FrozenFoods, 344 Ark. 296, ___ S.W.3d ___ (2001); Howell v. ScrollTechnologies, 343 Ark. 297, ___ S.W.3d ___ (2001); Wackenhut Corp. v.Jones, 73 Ark. App. 158, ___ S.W.3d ___ (2001). After de novo review of the entire record, the Full Commission finds that the claimant proved by a preponderance of the evidence that Doyle Ledbetter’s work activity of August 11, 1997 was the major cause of his fatal heart attack. We therefore reverse the administrative law judge’s finding that the claimant failed to prove that the August 11, 1997 accident was the major cause of the decedent’s physical harm, pursuant to Ark. Code Ann. §11-9-114(a).

B. Extraordinary and unusual exertion

After de novo review of the entire record, the Full Commission also finds that the claimant proved that Doyle Ledbetter’s work for the respondents on August 11, 1997 was extraordinary and unusual in comparison to the employee’s usual work in the course of his regular employment, in accordance with Ark. Code Ann. § 11-9-114(b)(1). Allen Murford worked “side-by-side” for the respondents with Doyle Ledbetter. The employees worked at various retail outlets in Arkansas and Mississippi, assembling items such as tractors, exercise equipment, bicycles, and grills. Mr. Murford and Mr. Ledbetter occasionally worked at Sears in Hot Springs, Arkansas. Mr. Murford testified, “The work environment at Sears was okay inside when we were putting bicycles together and grills and that type of thing. When it got to the tractors, it just got unbearable out there on the asphalt.” The employees were not allowed to assemble the riding lawn mowers inside at Sears in Hot Springs. Mr. Murford testified:

Q. And where would you work at the Sears location and put together riding lawn mowers?
A. It was in the back pickup area, like on the blacktop. It used to get so hot down there we couldn’t even pick up our tools. We would burn our hands.
Q. Let me ask you this, Mr. Murford: Can you describe the location on the outside of the Sears premises where you would have to put together these riding lawn mowers?
A. It was like there was a wall, two walls. They blocked off all your air and you didn’t get no air circulation whatsoever in the area. It was their, I guess they would call it their delivery area or pickup area.

Q. All right. And it was black asphalt?

A. Black asphalt, yes, sir.

Q. Now had you ever worked assembling lawn tractors at the Sears location in the summertime?

A. Yes.

Q. Can you describe to me what it was like at that particular area outside of Sears in the summertime?
A. Well, it was okay if it was early in the morning, before the sun come up. But after the sun come up and we got into July and August, in that area, when it got really hot, it got just unbearable. You couldn’t pick up your tools. You’d grab a deck from a lawn mower to try and slide it underneath a tractor, you’d have to get some packing to put on it so you wouldn’t burn your hands putting it underneath. It just got to be an unbearable type of heat.
Q. When you and Mr. Ledbetter were working at the Sears location, did you try to put the lawn tractors together at a certain time of day?
A. We tried to do it in the morning before the sun got up so high.
Q. And why would you do that? Why would you try to assemble the lawn tractors in the morning?
A. It was so the stuff wouldn’t get so hot that we couldn’t pick it up and we could withstand the heat. . . .
Q. Now at the Sears location, let’s say you had, well, let me just back up a minute. The Sears location had a shipment of lawn tractors come in that you had to work on. What was the usual size of the shipment in regard to the number of lawn tractors?

A. On the average, I would say fifteen to twenty.

Q. Okay. And how long would it take the two of you-all when you were working with Mr. Ledbetter, the two you-all working together, how long would it take you to assemble, say, fifteen tractors?
A. As a team, I would say four, four-and-a-half hours.

Q. So you would usually get that done in the morning?

A. Correct. . . .

Q. Now when you worked at other locations, like Lowe’s or K-Mart or Wal-Mart, whatever the case may be, did these other locations provide you work on the inside?
A. Yes. Lowe’s, they had, the tractors were on the outside, but if it got rainy or hot hot, they’d bring the tractors to the inside to the, I guess they call it the garden center, and they let us do them inside there out of the heat.
Q. Did other locations such as Lowe’s provide you with fans or any other type of ways to keep cool?

A. Yes, they did.

Q. Was Sears the only place that you worked where the heat was unbearable?

A. Yes. . . .

Q. After you quit, did Mr. Ledbetter have somebody else replace you and have somebody working with him?

A. No, not to my knowledge.

Q. Did he work by himself after you quit?

A. Yes.

Q. So anything that y’all did together, he would have done alone?

A. Correct.

Q. What if you had, let’s say, twenty or twenty-five tractors come in to be assembled in one day at the Sears location? Would that be an unusually big load?

A. For one person?

Q. Yes.

A. Very unusual.

Q. Would that be difficult or challenging for a man to try to put together that many tractors in one day?

A. Yes.

Q. How about a day where your temperature outside is a hundred degrees and you were working in the outside location that you described to us at the Sears plant, would that be an unusual or extraordinary day?

A. It would be very unusual or extraordinary.

Q. Would it be very difficult for a man to try to attempt to do that?

A. Yes.

Q. But if he had, he was at Sears and twenty or twenty-five tractors or more had come in, Mr. Ledbetter would have to do it?

A. Yes, he would have to.

The preponderance of evidence shows that Doyle Ledbetter’s work exertion for the respondents on August 11, 1997 was extraordinary and unusual compared to the employee’s usual work in the course of his regular employment. The Dissenting Opinion states that there is “absolutely no proof” that Doyle Ledbetter was required to assemble 30 tractors on August 11, 1997, but we find that evidence of greater convincing force does not support the Dissenting Opinion’s assertion. Anita Ledbetter testified that her husband, working alone, was to assemble 30 tractors at the Hot Springs Sears on August 11, 1997. The area manager, Michael Kidd, agreed that “the store probably had thirty tractors in there to be assembled,” and that Sears “preferred to have them done that same day.” Allen Murford testified that “Any tractors that came off the trucks had to be assembled that day before closing time.”

In any event, the precise number of lawn tractors that Doyle Ledbetter was required to assemble on August 11, 1997 is really not the controlling factor in determining whether Mr. Ledbetter’s work on that day was “extraordinary and unusual” in comparison to his usual work for the respondents. Whether there were 30 lawn tractors for assembly or only an “average” shipment of 15-20, the preponderance of evidence shows that the decedent’s work on August 11, 1997 was extraordinary and unusual in comparison to his usual work. Mr. Ledbetter was in fact working alone that day. His former co-worker credibly described the intense heat under the afternoon sun, outside on the black asphalt, in an enclosed space with no air circulation. No other store required Mr. Ledbetter to work in similar conditions.

The preponderance of evidence simply does not support the DissentingOpinion’s assertion that the decedent had worked in similar conditions “for several years and throughout the summer of 1997.” On the contrary, the record shows that Mr. Ledbetter and Mr. Murford worked together an average of four and one-half hours in the morning when they assembled tractors at Sears in Hot Springs. Although Mr. Murford left his employment because of the unbearable conditions at Sears, Doyle Mr. Ledbetter continued his same job duties, alone. Mr. Ledbetter had never before been required to process the same amount of tractors, outside on the asphalt at Sears during the summer, by himself. In the course of his usual work for the respondents, and unlike August 11, 1997, other retail outlets permitted Mr. Ledbetter to work inside during times of high temperature.

Further, Doyle Ledbetter’s “usual and regular” employment with the respondents had never before required hospitalization. The record clearly shows that Mr. Ledbetter was transported to St. Joseph’s emergency room after he “fell out” at Sears at approximately 3:00 p.m., August 11, 1997. The ambulance service record indicated that the claimant complained of heat exhaustion, “working hard in hot environment.” The emergency room physician noted diaphoresis, that is, profuse sweating, caused by the claimant’s working on a tractor. The decedent’s daughter credibly testified that her father’s clothing was “frosted white with dried salt.” The first clinical impression after the accident was “Anterior myocardial infarction.”

The Full Commission finds that the circumstances which existed on August 11, 1997 elevated Doyle Ledbetter’s work activity to the level of “extraordinary and unusual” exertion, which in turn precipitated Mr. Ledbetter’s fatal heart attack. Therefore, we find from a preponderance of the evidence that the exertion of Doyle Ledbetter’s work on the afternoon of August 11, 1997, which work we find to have precipitated his accident and death, was “extraordinary and unusual in comparison to the employee’s usual work in the course of the employee’s regular employment.” Accord, Mountain Home Mfg. v. Hafer, 66 Ark. App. 127, 991 S.W.2d 127 (1999).

Therefore, based on our de novo review of the entire record, and for the reasons discussed herein, the Full Commission finds that the claimant proved by a preponderance of evidence that the major cause of the Doyle Ledbetter’s fatal heart attack was his work for the respondents on August 11, 1997. We find that the claimant showed that the exertion of the work necessary to precipitate Mr. Ledbetter’s death was extraordinary and unusual in comparison to the employee’s usual work in the course of his regular employment. We have not considered physical or mental stress in determining whether the claimant met her burden of proof. The Full Commission therefore reverses the opinion of the administrative law judge, and we award appropriate dependency benefits pursuant to the relevant provisions of Act 796 of 1993.

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). We note that this claim has been controverted in its entirety, and we find that the claimant’s attorney is entitled to the maximum statutory attorney’s fee.

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 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).

IT IS SO ORDERED.

_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ SHELBY W. TURNER, Commissioner

Commissioner Wilson dissents.

DISSENTING OPINION MIKE WILSON, Commissioner.

I respectfully dissent from the majority’s opinion finding that the claimant has met her burden of proof that the work activity of the deceased was the major cause of his fatal heart attack. Based upon my denovo review, I find that the claimant has failed to meet her burden of proof.

Although there was evidence that the deceased, on August 11, 1997, was facing the assembly of up to thirty (30) lawn tractors, there is absolutely no proof in the record that there were that many lawn tractors that the deceased had to assemble that day. While it is undisputed that the day was hot, the evidence reflects that the deceased had engaged in that type work for several years and, in fact, had been doing that work through the summer of 1997. The fact that it was a hot day and the claimant was working in a place where the conditions were less than ideal, does not, in my opinion, rise to the level of being extraordinary or unusual in comparison to the deceased’s usual work in the course of his regular employment.

Further, I cannot find that the deceased’s work activities of August 11, 1997, were the major cause of his fatal heart attack. The testimony of Dr. Pai was not dispositive of whether the deceased’s work conditions were more than 50% responsible for the deceased’s fatal heart attack. Dr. Pai answered, “I would say more likely than not” when questioned. Dr. Pai went on to elaborate that, “Physical exertion alone, without underlying conditions, will not cause — it is unlikely to cause a heart attack.” Further, Dr. Pai opined that most heart attacks are due to the build-up of cholesterol plaque, which is really a process and not a one-time event. The build-up of plaque takes months or even years. According to Dr. Pai, it is a pre-existing abnormality. Dr. Pai testified:

According to medical reason, the pathology shows that the plaque or build-up of cholesterol progresses, and becomes unstable and ruptures. That is a process. That is the real reason for the heart attack. But somewhere down the line, the external events can hasten this rupture. I don’t know what the legal — so medically, I would say that the plaque is the reason for the heart attack. But the plaque rupture can be due to severe exertion.

Dr. Pai’s testimony does not rise to the level of being stated within a reasonable degree of medical certainty that is required when a medical opinion is given.

Therefore, for the reasons stated herein, I respectfully dissent from the majority opinion finding that the claimant’s heart attack is a compensable injury.

___________________________ MIKE WILSON, Commissioner