City of Blytheville v. McCormick

• Decision Date: 12 March 1997
• Docket Number: No. CA,CA
• Citation: 56 Ark.App. 149,939 S.W.2d 855
• Parties: CITY OF BLYTHEVILLE, Appellant, v. Wendell McCORMICK, Appellee. 96-644.
• Court: Arkansas Court of Appeals

Page 855

939 S.W.2d 855

56 Ark.App. 149

CITY OF BLYTHEVILLE, Appellant, v. Wendell McCORMICK, Appellee.

No. CA 96-644.

Court of Appeals of Arkansas,

Division IV.

March 12, 1997.

Thomas N. Kieklak, North Little Rock, for Appellant.

Daniel G. Ritchey, Blytheville, for Appellee.

COOPER, Judge.

The appellee in this workers' compensation case was employed as a fire fighter by the appellant on October 26, 1993, when he suffered a heart attack after ventilating smoke from a burning building. The appellee filed a workers' compensation claim and the Commission awarded benefits. From that decision, comes this appeal.

For reversal, the appellant contends that there was insufficient evidence to support the Commission's findings that an accident caused the appellee's heart attack; that the work performed by the appellee when he suffered the heart attack was unusual and extraordinary in comparison with his usual work; and that the work incident was the major cause of the appellee's heart attack. The appellant also contends that the Commission erred in allowing policy decisions to weigh in its decision to award benefits. We affirm.

We first address the appellant's arguments concerning the sufficiency of the evidence to support the Commission's findings. In determining the sufficiency of the evidence to sustain the findings of the Workers' Compensation Commission, we review the evidence in the light most favorable to the Commission's findings and affirm if they are supported by substantial evidence. Weldon v. Pierce Brothers Construction, 54 Ark.App. 344, 925 S.W.2d 179 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark.App. 120, 842 S.W.2d 463 (1992). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission's decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Tyson Foods, Inc. v. Disheroon, 26 Ark.App. 145, 761 S.W.2d 617 (1988). In making our review, we recognize that it is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Whaley v. Hardee's, 51 Ark.App. 166, 912 S.W.2d 14 (1995). The Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Id.

Viewed in the light most favorable to the Commission's findings, the record shows that the appellee was employed by the appellant as a fire fighter for approximately seven and one-half years. The appellee suffered his first heart attack in October 1992 and underwent bypass surgery. In January 1993, the appellee returned to his regular employment, which consisted of driving a fire truck when he was on duty, and doing whatever was assigned when he answered a call while off duty. The appellee had no physical limitations or health problems between his return to full-duty status in March 1993 and his second heart attack on October 26, 1993, which is the subject of the present claim. This second heart attack occurred while the appellee was venting the roof of a burning building, which involves cutting a hole in the roof and placing a pipe to allow smoke and gas to escape. In so doing the appellee was exposed to unusually heavy, dark, thick smoke. The appellee inhaled a good deal of smoke and was shaking as he climbed down from the roof. He sat down, felt sick to his stomach, and broke into a sweat. Although his chest was tight and his arm hurt, the appellee refused an ambulance and went home. However, his symptoms progressively worsened and his wife took him to the hospital. Dr. Charles Burnett, the cardiologist who treated the appellee during and following his first heart attack, opined that the appellee's second heart attack was primarily caused by his exposure to heavy smoke, which caused his blood to become hypercoagulable and resulted in the formation of a clot. Dr. Burnett testified that the risk factors contributing to the appellee's heart disease combined equalled less than ten percent as far as contributing to his second heart attack.

The appellant contends that the Commission erred in finding that an "accident" was the major cause of the appellee's heart attack. The appellant concedes that, in the context of workers' compensation law, Arkansas has long held that an injury is "accidental" if the result of the injury is unexpected, unforeseen, or unintended, but argues that this definition was the product of liberal statutory construction that may not appropriately be applied to our present workers' compensation law as promulgated in Act 796 of 1993.

It is true that, while the provisions of the Workers' Compensation Act were formerly construed liberally in accordance with the act's remedial purpose, Act 796 of 1993 changed former practice and mandated that both the Commission and the courts should henceforth construe the provisions of the act strictly. Ark.Code Ann. § 11-9-704(c)(3) (Repl.1993); cf Ark.Code Ann....