Carter v. Jones Truck Lines, Inc., 21275

• Decision Date: 01 April 1997
• Docket Number: No. 21275,21275
• Citation: 943 S.W.2d 821
• Parties: Dixie Boyd CARTER, Respondent, v. JONES TRUCK LINES, INC., Appellant.
• Court: Missouri Court of Appeals

Page 821

943 S.W.2d 821

Dixie Boyd CARTER, Respondent, v. JONES TRUCK LINES, INC., Appellant.

No. 21275.

Missouri Court of Appeals,

Southern District,

Division Two.

April 1, 1997.

Motion for Rehearing and Transfer to

Supreme Court Denied April 23, 1997.

Application to Transfer Denied

May 27, 1997.

Daniel E. Scott, Copeland & Scott, L.R. Buehner, Jr., Buehner & Buehner, Joplin, for appellant.

Glenn R. Gulick, Jr., Hershewe & Gulick, P.C., Joplin, for respondent.

CROW, Presiding Judge.

Jones Truck Lines, Inc. ("Employer") appeals from an award by the Labor and Industrial Relations Commission ("Commission") granting benefits under The Workers' Compensation Law, chapter 287, RSMo 1986, as amended, to Dixie Boyd Carter ("Claimant") as sole dependent of Vern Boyd ("Employee").

Employee died February 2, 1989, on Employer's premises. Claimant is Employee's widow. ¹

Commission's award incorporated by reference an award by an Administrative Law Judge ("ALJ") of the Division of Workers' Compensation wherein the ALJ found Employee's death was caused by a ventricular fibrillation ("V-fib") that occurred while he was performing duties within the course and scope of his employment.

Employer's sole point relied on is:

"The Commission erred in finding that the employee's death arose out of his employment, in that there was no substantial evidence in the record that the employee's fatal V-fib was job-related within the rule of Wynn v. Navajo Freight Lines,[ ²] because claimant's sole causation witness failed to establish that the V-fib's 'actual triggering cause' was induced by or related to the employee's job or work."

The "sole causation witness" referred to in Employer's point is Francis H. Corcoran, a medical doctor. He is "board certified" in internal medicine and cardiovascular diseases. We shall examine his testimony after recounting Employee's activities on the day he died.

The ALJ made comprehensive findings regarding Employee's activities. Inasmuch as Commission incorporated those findings in its award and Employer does not challenge those findings, we glean many of the facts in our narrative from those findings.

Employee, age 55, arrived at Employer's premises at 5:30 a.m. The weather was cold; it got colder during the day. At 6:00 a.m., the temperature was 25 degrees Fahrenheit and the wind chill was 14. By noon, the wind chill had dropped to zero; at 4:00 p.m. the wind chill was five degrees below zero.

Upon arrival at Employer's premises, Employee moved freight trailers to various dock locations. In doing this, Employee connected a tractor to a trailer, a procedure performed outside. The chore involved securing the "fifth wheel," hooking up an air hose, and "cranking the dollies up." The latter task done by hand, was strenuous in cold weather because the grease in the gears became gluey.

After connection, Employee drove the unit to the proper location and backed the trailer to the dock. Then, Employee exited the tractor and disconnected the trailer, which involved hand-cranking the dolly back down.

Once the trailers were situated, Employee's next assignment was to prepare to deliver freight himself on a local route. He loaded a trailer with cargo destined for six sites, then departed Employer's premises pulling the trailer with a tractor.

Employee reached his first destination at 11:21 a.m., and completed his sixth (and final) delivery at 2:15 p.m. He then contacted his dispatcher and was told to return to Employer's premises. According to the dispatcher, Employee "[s]ounded fine."

Employee arrived at Employer's premises about 3:30 p.m., exited the tractor, walked to his personal vehicle, and started its engine. ³ He then returned to the tractor-trailer unit and drove it to the terminal area.

Some time later, a fellow worker was checking trailers on the lot. As he went past a tractor-trailer unit at the dock, he heard something "running" inside the tractor cab. He opened the door and found Employee lying on his right side. Employee showed no sign of life.

The worker noted the ignition was on, but the tractor's engine was not running. The noise that had attracted his attention was the heater motor. The worker surmised that as Employee was backing the unit toward the dock, the trailer bumped against it and Employee's foot slipped off the clutch, killing the engine.

A firefighter captain was summoned from a nearby station at 4:59 p.m. He rushed to the tractor and examined Employee. According to the captain, Employee was "obviously deceased." Employee was cold, his lips were dark, he had no carotid pulse, and "blood was pooled around his midsection."

Jerry Neil, an "assistant coroner," arrived and found vomitus in Employee's mouth. Neil prepared a report showing the cause of death as "apparent heart attack." Neil ordered no autopsy, as there was no indication of foul play.

Expert testimony about the cause of Employee's death came from two witnesses. One was Dr. Corcoran, introduced earlier. The other was a physician--board certified in cardiology and internal medicine--engaged by Employer's counsel to review information about Employee's death and render an opinion as to the cause.

The ALJ found the testimony of Employer's expert "entitled to no weight or credibility." Inasmuch as Commission incorporated the ALJ's findings in its award, Employer does not, in this appeal, argue that its expert was more persuasive than Corcoran. Employer concedes it was Commission's prerogative to give no weight to the testimony of Employer's expert. Haynes v. Emerson Electric Co., 799 S.W.2d 939, 947 (Mo.App. S.D.1990). Consequently, we say nothing more about Employer's expert.

The ALJ's findings (incorporated by Commission) include these:

"I find the more credible evidence leads me to conclude the ventricular fibrillation causing [Employee's] death was brought about by [his] working conditions, coupled with his personal risk factors, and that he was performing duties within the course and scope of his employment for [Employer] at the time of his demise....

The most credible medical evidence leads me to conclude that [Employee], carrying with him a family history and several risk factors predisposing him to heart disease, was engaged on February 2, 1989, in activities throughout the day in extreme cold, coupled with moderate physical labor while making his deliveries. I find of no legal consequence the fact that [Employee], upon arriving at [Employer's] terminal, stopped in the employee parking lot and started his personal vehicle to warm it up in the cold weather, as was the custom of [Employee].... Dr. Corcoran, in his testimony, indicated a causal connection between not only the [Employee's] predisposed condition to heart disease, and that coupled with the extremes in cold which [Employee] was working in throughout the day engaged in the physical activities that he was, were, within Dr. Corcoran's reasonable medical opinions, the cause of the fatal ventricular fibrillation which brought about [Employee's] death, and that [Employee] was in the process of backing his tractor with trailer attached up to the employer's terminal at the time this fatal event took place."

In determining whether Corcoran's testimony was sufficient to support Commission's award, we begin with Wynn v. Navajo Freight Lines, Inc. ⁴ There, Commission awarded death benefits to the widow and unemancipated children of a truck driver who suffered a fatal heart attack while driving his usual route. On appeal, the Supreme Court of Missouri stated:

"The issue in this case is whether an employee's death by work induced heart attack during the continued performance of his usual duties constitutes ground for worker's [sic] compensation death benefits."

654 S.W.2d at 87-88.

Affirming the award, the Supreme Court noted that judicial construction of the statutory definition of "accident" had been broadened in Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781 (Mo. banc 1983). Wynn, 654 S.W.2d at 89. The opinion in Wynn quoted the following passage from Wolfgeher, 646 S.W.2d at 784:

"Where the performance of the usual and customary duties of an employee leads to physical breakdown or a change in pathology, the injury is compensable."

Wynn, 654 S.W.2d at 89.

The opinion in Wynn declared that under Wolfgeher, a work related heart attack during the course of one's employment is compensable even though unaccompanied by unusual or abnormal strain. Wynn, 654 S.W.2d at 89. Wynn explained:

"Even though [the employee] was in poor health, had a preexisting heart condition, did not take good care of himself, and might have succumbed to a fatal heart attack while off work, possibly caused by different sorts of stress, the right to compensation should exist if the actual triggering causes are found, on the basis of substantial evidence, to meet the 'job related' or 'work related' test of Wolfgeher."

Wynn, 654 S.W.2d at 89-90.

Obviously relying on the above passage, Employer's point relied on, quoted earlier, avers Corcoran's testimony failed to establish that the actual triggering cause of the V-fib was job related or work related. Citing Haynes, 799 S.W.2d at 947, Employer argues: "Unless the employee's job performance induced the heart attack, even a workplace heart attack is not compensable."

Claimant maintains Corcoran's testimony amply demonstrated "that the actual triggering causes of [Employee's] fatal heart attack were work-related, i.e., the performance of the usual and customary duties of his job."

Corcoran's testimony occupies seventy pages in the transcript. We begin our study of it by noting the segments favorable to Commission's award.

Corcoran saw Employee October 4, 1984 (52 months before Employee died), because Employee was having chest pain and irregularities in his heart rhythm. Employee had risk factors for development of coronary disease including a family history of it, elevated cholesterol, and smoking.

An...