Archer v. Industrial Commission

• Decision Date: 26 August 1980
• Docket Number: No. 1,CA-IC,1
• Citation: 127 Ariz. 199,619 P.2d 27
• Parties: Leona M. ARCHER, Widow, Donald R. Archer, Deceased, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, ASARCO, Inc., Respondent Employer, State Compensation Fund, Respondent Carrier. 2287.
• Court: Arizona Court of Appeals

Page 27

619 P.2d 27

127 Ariz. 199

Leona M. ARCHER, Widow, Donald R. Archer, Deceased, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, ASARCO, Inc., Respondent Employer, State Compensation Fund, Respondent Carrier.

No. 1 CA-IC 2287.

Court of Appeals of Arizona, Division 1, Department C.

Aug. 26, 1980.

Rehearing Denied Oct. 7, 1980.

Review Denied Nov. 4, 1980.

Rabinovitz & Dix, P. C. by Charles G. Rehling, Bernard I. Rabinovitz, Tucson, for petitioner

Calvin Harris, Chief Counsel, The Industrial Commission of Arizona, Phoenix, for respondent.

Twitty, Sievwright & Mills by John F. Mills, Phoenix, for respondents employer and carrier.

OPINION

JACOBSON, Judge.

What is the status of the law in Arizona in Workmen's Compensation cases where the resulting injury is caused by emotional stress? This is the issue presented in this second review of an award of the Industrial Commission denying benefits to the widow of a workman who died as a result of a heart attack. $The workman, Donald R. Archer, died as a result of a heart attack on March 22, 1977, the manifestations of the symptoms occurring at work. The first award in this matter, which found compensability, was set aside in ASARCO, Inc. v. Industrial Commission, 122 Ariz. 241, 594 P.2d 107 (App. 1979) (review denied May 1, 1979) on the following ground:

The hearing officer in the case before us did not make a specific finding regarding whether the gradual work-related stress experienced by the deceased during his employment with petitioner ASARCO was 'unexpected, unusual, or extraordinary' as compared to the everyday stress experienced on the job by all of his co-workers . . ..

122 Ariz. at 243, 594 P.2d 109.

Following this court's set aside, a further hearing was held before the Commission at which no new medical evidence was presented, but lay witnesses testified concerning the events surrounding the deceased's death. The hearing officer subsequently entered an award denying compensability and in doing so, made two key findings:

The evidence does not establish a significant relationship between the physical exertion and the myocardial infarction. Although the preponderance of the evidence does establish that the deceased's myocardial infarction was in part caused by and due to the emotional stress experienced on this job, it fails to establish that the everyday stress experienced by the deceased was any greater than that sustained by his co-workers.

Following a request for administrative review and its denial, a timely review of the Commission's award was sought in this court.

The facts are that on March 22, 1977, the deceased suffered a fatal myocardial infarction while employed as a shovel repairman by repondent ASARCO, Inc. Prior to the summer of 1976, the deceased apparently was an outwardly healthy, easygoing individual. During that summer he began to complain of pain in his arms and shoulders, and underwent somewhat of a personality change, which continued until his death.

These changes consisted of the deceased becoming more withdrawn, complaining about fellow workers, especially Mexican-Americans, and becoming easily angered over job incidents. He was described by a psychiatrist as being a 'perfectionist, compulsive, impatient man' who 'didn't allow [himself] much room to blow off any steam or relieve any pressures, so, in a sense he tended to keep things inside.'

Several months before his death, the deceased complained to the leadman (foreman) of his crew that his shoulders were aching and requested permission to see a doctor. At that time, the doctor diagnosed hypertension and prescribed a diuretic and muscle relaxant. He was subsequently transferred to the 'lube' truck duties which were somewhat less strenuous than duties on the repair crew.

On March 22, 1977, the deceased had returned to the repair crew which was assigned to rig a boom on a crane. The night before he had complained that he was unable to sleep because of pain in his arms. The rigging of the boom required that steel cables weighing approximately 80 pounds be joined by an adapter weighing approximately 40 pounds. This operation required two men and the deceased was being assisted by Rene Arrietta. Arrietta was one of the Mexican-Americans the deceased had complained about 'not putting out.' During the joining operation, a fellow employee, Jim Kelly, noticed that the deceased and Arrietta were having difficulties in completing the joinder. He described the demeanor of the deceased as 'you could tell he was--he might have been mad or something, you know. He was just, he was just working real fast and all and hard and trying to get--he was frustrated more or less.' Kelly then assisted in completing the job.

Gail Spendlove, leadman of the crew, noticed the deceased's reaction to Arrietta's work:

Q. Did something occur on that day that caused you to believe that he thought that Rene [Arrietta] had let down his part of doing something?

A. Well, not necessarily, just my feeling. He didn't say anything. His actions.

Q. Like what?

A. He got mad. And that's the only thing he could get mad at that quick.

At approximately 10:30 a. m., after the joining operation was completed, the deceased said he was going home. He got off the boom and lay down, at which point the other employees realized he was ill. An ambulance was called and he was pronounced dead on arrival at the hospital at 11:47 a. m.

An autopsy performed by Dr. Louis Hirsch that same day revealed that the cause of death was a myocardial infarction due to occlusive arteriosclerotic coronary artery disease. The autopsy further revealed that a four or five month old scarring existed on the heart muscle, that an occlusion of the right coronary artery existed which was approximately a week old and that the myocardial infarction that resulted in his death had begun approximately 18 hours before death.

Dr. David B. Gurland, a psychiatrist, and Dr. John Wineinger, a cardiologist, both testified that in their opinions the emotional stress generated over a period of time and, in particular, the rage expressed by the deceased on the last day were contributing factors in bringing about the myocardial infarction. Dr. Richard L. Dexter, a specialist in internal medicine, testified that based upon the information he had received, he did not believe the deceased's physical exertion was a contributing factor in the infarction. However, he did feel that the anger and emotional distress were contributing factors.

The petitioner has raised basically four issues:

(1) Does the evidence require a conclusion that the death of the deceased was caused by a specific precipitating event (rage) on the date of the infarction as compared to a gradual buildup of emotional stress?

(2) Does the evidence require a conclusion that death was the result of physical exertion?

(3) Does the evidence require a conclusion that the deceased was subjected to more emotional stress than his fellow employees?

(4) Did this court correctly determine that in gradual emotional stress/heart attack cases that the emotional stress must be 'unusual'?

To sharpen the primary issues we will first dispose of the two evidentiary contentions: whether the hearing officer's finding that physical exertion was not a contributing factor to the heart attack is supportable; and whether the finding that the deceased's job did not subject him to any different emotional stress than his fellow employees is likewise supportable.

Turning first to the physical exertion problem, support for the hearing officer's finding is found in the testimony of Dr. Dexter. The petitioner attacks this testimony on the grounds that Dr. Dexter lacked sufficient background information to form an opinion in this area. However, we have reviewed the information supplied to Dr. Dexter and find it adequately covers the deceased's job description. Moreover, the petitioner does not indicate in what particular the information supplied to Dr. Dexter was deficient.

Next, the petitioner contends that the hearing officer's finding that the deceased was not subjected to any different everyday emotional stress than that shared be his fellow employees is not supported by the evidence. Although the petitioner's argument in this regard is somewhat vague, apparently what is contended is that the evidence clearly shows that the deceased, because of his own emotional makeup, experienced greater emotional stress than his fellow employees. In our opinion, under ASARCO, Inc. v. Industrial Commission, supra, and City of Phoenix v. Industrial Commission, 120 Ariz. 237, 585 P.2d 257 (App. 1978), the test for determining the measure of emotional stress is not a subjective one (i. e., how the employee reacts to the job), but an objective one (i. e., do the duties imposed by the job subject the claimant to greater stress than his fellow employees?). From an objective standpoint, the deceased's duties...