TAFT v. P.A.M. TRANSPORT, 1995 AWCC 75

CLAIM NO. E313930

CHARLES TAFT, EMPLOYEE, CLAIMANT v. P.A.M. TRANSPORT, EMPLOYER, RESPONDENT and CREDIT GENERAL INSURANCE CO., CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 20, 1995

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

Claimant represented by JAY N. TOLLEY, Attorney at Law, Fayetteville, Arkansas.

Respondent represented by RANDOLPH C. JACKSON, Attorney at Law, Fort Smith, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] This matter comes on for review by the Full Commission from the decision of the Administrative Law Judge filed on June 30, 1994. In said order, the Administrative Law Judge found that claimant had failed to prove by a preponderance of the credible evidence that his myocardial infarction is a compensable injury under Arkansas law.

[3] After carefully conducting a de novo review of the record, we find that claimant has failed to prove by a preponderance of the credible evidence that his myocardial infarction is a compensable injury. Therefore, we affirm the decision of the Administrative Law Judge. [4] Claimant contends that he sustained a compensable injury on or about August 7, 1993. Thus, he claims that he is entitled to temporary total disability benefits, related medical expenses, and an attorney’s fee. Respondent controverts this claim in its entirety. A hearing was held and an Administrative Law Judge found that claimant had failed to meet his burden of proof. Claimant now appeals. [5] The date of injury is August 7, 1993. Therefore, this case falls under the changes made in the law by Act 796 of 1993. The appropriate code section is A.C.A. § 11-9-114
which 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) An injury or disease included in subsection (a) 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.

[6] Furthermore, A.C.A. § 11-9-102 (14) defines “major cause” as more than 50% of the cause. Additionally, under applicable law, it is required that a compensable injury be established by medical evidence supported by objective findings as defined by A.C.A. § 11-9-102 (16) which states in part:

Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.

[7] Arkansas Code Ann. § 11-9-102 (5)(E) sets the burden of proof upon the claimant to prove a compensable injury. Lastly, it is clear that the legislature intends for the provisions of the workers’ compensation chapter to be strictly construed and for the evidence to be weighed impartially without giving the benefit of the doubt to either party. A.C.A. § 11-9-704 (c)(3) [8] When reviewing the facts of this case and applying the applicable law, claimant has failed to prove by a preponderance of the credible evidence that any exertion at work that precipitated the heart attack was extraordinary and unusual in comparison with his regular or usual work, or that some unusual or unpredicted incident occurred which was the “major cause” of the heart attack. [9] Claimant’s heart attack was not precipitated by any extraordinary or unusual work or some unusual or unpredicted incident. Claimant’s testimony indicates that his work in June, July and August of 1993 was “fairly normal.” In fact, claimant contended that nothing unusual occurred on August 7th, 8th or 9th. Furthermore, claimant did not have to physically load or unload any load on August 7th, 8th or 9th of 1993. Clearly, claimant’s heart attack was not precipitated by any extraordinary or unusual event or some unusual or unpredicted incident occurring at work. [10] Furthermore, claimant’s attorney in his letter brief relies heavily upon Dr. Allen’s medical reports. Claimant’s attorney insists that the medical reports of Dr. Allen prove claimant’s claim. However, based upon a review of all the medical records, those from Dr. Allen, as well as, the Rogers Medical Center and St. Mary’s-Rogers Memorial Hospital, we find that the medical evidence does not “prove” claimant’s claim. [11] Although claimant contends that he first sought medical treatment on August 10, 1993, the first medical records are office notes dated August 16, 1993. This is six days after claimant had last driven for respondent. Furthermore, the medical records from St. Mary’s Hospital indicate that claimant was admitted on August 17, 1993. At that time, claimant related that he had feelings of shortness of breath for approximately one week. As stated, it had been six days since claimant had last driven for respondent. A medical report from St. Mary’s-Rogers Memorial Hospital states:

This patient was seen in the clinic on August 16, 1993 for a DOT physical. He had one two years ago, he is a diabetic and does not comply with his diet and with the DOT physical upon examination, his blood sugar was found to markedly elevated. Patient has complained of some shortness of breath and talking about chest pains that he has had for 10 to 12 hours two weeks ago. It started at 9:30 AM and he laid in the cab of his truck until late that afternoon. He said that three or four days ago he had an episode and an episode last night. We tried to admit him to the hospital yesterday but he had to attend to a meeting this afternoon and had just come in at the present time.

[12] The medical report of Dr. Allen dated August 18, 1993, reflects that claimant stated that after he arrived home he had rested for several days and then had another episode of chest pain. Claimant continued that he had let approximately two days lapse before he had come into the hospital and, at that time, had suffered yet another episode of chest pain. It was at that point, that claimant “decided to keep his appointment for a physical examination with Dr. Warren.” Although the claimant also contends that Dr. Allen’s report of October 5, 1993 conclusively finds that claimant’s heart attack is causally related to his employment, a review of Dr. Allen’s report does not support this contention. Dr. Allen states:

I cannot make a comment concerning causality in regards to Mr. Taft’s acute myocardial infarction other than the observation that it did occur while he as driving a truck. The onset of his symptoms while he was driving without any excessive or undue stress. . . .

[13] The aforementioned clearly indicates that Dr. Allen cannot give an opinion regarding causation. [14] Claimant has failed to prove by a preponderance of the credible evidence that the exertion of work necessary to precipitate the disability was extraordinary and unusual in comparison to his usual work or that some unusual or precedent occurred which was the major cause of the heart attack. [15] The lay testimony and the medical evidence shows that claimant has not met his burden of proof. Therefore, the decision of the Administrative Law Judge is affirmed. [16] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[17] Commissioner Humphrey dissents.