George Hyman Const. v. Dist. of Columbia

• Decision Date: 16 August 1985
• Docket Number: No. 84-1226.,84-1226.
• Citation: 497 A.2d 103
• Parties: The GEORGE HYMAN CONSTRUCTION COMPANY, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent. John T. Rose, Intervenor.
• Court: D.C. Court of Appeals

497 A.2d 103

The GEORGE HYMAN CONSTRUCTION COMPANY, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent John T. Rose, Intervenor.

No. 84-1226.

District of Columbia Court of Appeals.

Argued April 23, 1985.

Decided August 16, 1985.

Stanley J. Brown, Washington, D.C., with whom Alice L. Covington, Washington, D.C., was on the briefs, for petitioner.

Beverly J. Burke, Asst. Corp. Counsel, Washington, D.C., with whom Inez Smith Reid, Corp. Counsel, John H. Suda, Principal Deputy Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on statement in lieu of brief, for respondent.

Allen J. Lowe, Washington, D.C., with whom Peter J. Vangsnes, Washington, D.C., was on the brief, for intervenor.

Before PRYOR, Chief Judge, and FERREN and BELSON, Associate Judges.

BELSON, Associate Judge:

The District of Columbia Department of Employment Services (DOES) determined that claimant worker's myocardial infarction was an injury arising out of employment and that claimant is therefore eligible for workers' compensation pursuant to D.C.Code §§ 36-301 to -345 (1981 & 1984 Supp.). Petitioner George Hyman Construction Company challenges both that determination and DOES' computation of claimant's average weekly wage under id. § 36-311(a)(4). We affirm.

I

Claimant, John T. Rose, filed a workers' compensation claim for disability caused by a myocardial infarction that occurred while he was working for the George Hyman Construction Company. Hyman controverted claimant's right to compensation, contending that claimant's myocardial infarction was not an "accidental injury . . . arising out of and in the course of employment." D.C.Code § 36-301(12).

Claimant testified before the hearing examiner that he was born in June 1922, and had had a "heart attack" in 1977. He explained that on June 8, 1983, he was working for petitioner as a cement mason, his profession since 1947. On that day, he worked in the basement of a building under construction. The basement had a 10 foot ceiling. The atmosphere there was warm and muggy. Claimant was "patching"— filling up and smoothing over holes in concrete. While standing on a scaffold, he patched the area of the wall where it meets the ceiling. He patched from the hours of 7:00 or 7:30 a.m. to 2:00 p.m., with two breaks.

At 2:00 p.m., a co-worker came to claimant and told him that he was wanted by Mr. Miller, a cement mason foreman, to bullfloat concrete on the 5th floor. Bullfboating is a process of finishing poured concrete by sliding an aluminum instrument over its surface. Claimant carried all his tools, weighing about 50 pounds, and walked up 5 flights of stairs. The cement had already been poured when claimant arrived on the 5th floor, so he immediately began bullfloating. Claimant testified that although it is not difficult to bullfloat concrete that has just been poured, concrete sets quickly in the summer, and it was hard to work the bullfloat on the 5th floor.

After working the bullfloat for approximately 30 minutes, claimant began to experience pain in his chest. He stopped work, was driven home, and was then taken to the hospital by ambulance. He was diagnosed as suffering from a myocardial infarction and remained in the hospital for 2 weeks.

Claimant submitted the deposition of Jack Segal, M.D. Dr. Segal concluded that there was a causal relationship between claimant's infarction and his work. That opinion was based on claimant's description of strenuous work activity and hot weather.

David Miller, claimant's foreman, testified for Hyman to a different version of events. He stated that the basement was cool—at 60 or 65 degrees—and well ventilated. Claimant did not have to patch at the ceiling, and would have used the scaffold if he needed to do so. Miller testified that he went to the basement to get claimant up to the second floor. They took their time, walked up a ramp and one flight of stairs. Claimant's tools weighed only 15 pounds. When they arrived at the second floor, the concrete had not yet been poured, and claimant spent 30 to 40 minutes talking with co-workers. When claimant bullfloated the concrete it was soft. Even when the cement has set, it is not hard to work the bullfloat, according to Miller.

Harry Worth, another cement mason foreman, also testified that bullfloating is easy work, and if there is a need to reach higher than the head to patch, a scaffold is used.

The temperature on that day, recorded at National Airport, was 68-71 degrees between 7:00 and 9:00 a.m., and the humidity 63-57 percent. Between 2:00 and 3:00 p.m., the temperature was 80 degrees and the humidity 42-38 percent.

Hyman called Gerald Shugoll, M.D., a cardiologist, to testify at the hearing. The record also contains two of his medical reports, dated November 28, 1983, and January 24, 1984. The November 1983 report concluded that the physical demands of the work on June 8 "would have to be strongly considered as a precipitating element in the occurrence of his myocardial infarction." The report was based on the history claimant gave of the circumstances that preceded his infarction that day. Dr. Shugoll considered claimant's version to indicate that' he was involved in exertion on that day that was unusual for him.

In the January 1984 report, Dr. Shugoll reached the opposite conclusion. He based this opinion on the assumption that the facts were much like those described by Foreman Miller. At the hearing, Dr. Shugoll repeated this opinion, based on Miller's version of the events of June 8.

In her Proposed Compensation Order, the hearing examiner found that claimant was a credible witness, and that his description of his work day at the hearing and to Dr. Shugoll reflected the events of June 8. She observed that Dr. Segal's deposition was basically consistent with Dr. Shugoll's opinion. She also accepted Dr. Shugoll's opinion in his November 1983 report as the most credible. The hearing examiner concluded that claimant had established that his myocardial infarction had arisen out of his employment on June 8, 1983, and that he has been temporarily totally disabled since that time.

The Director of DOES affirmed the hearing examiner's Proposed Compensation Order. The Director, however, rejected the hearing examiner's view that no unusual exertion need have occurred for there to have been an injury under the Act. The Director instead adopted the standard that when the claimant suffers a myocardial infarction and there is proof of preexisting arteriosclerosis, the claimant must prove that exertion unusual for the employee precipitated the infarction. The Director determined that the record supported such a conclusion.¹

II

Petitioner contends that there is no medical evidence in the record supporting a conclusion that claimant's work precipitated his myocardial infarction and that the record demonstrates that no unusual exertion was involved on June 8, 1983.² Petitioner also argues that the Department should have used a different method to compute claimant's average weekly wage. We disagree with both contentions.

Petitioner's first argument on appeal is that the testimony of Dr. Shugoll, relied on by the hearing examiner, is insufficient support for a finding of eligibility because his opinion was based on claimant's description of events given in November 1983, which was at variance with claimant's testimony at the hearing. Petitioner directs our attention to discrepancies in three respects: the weather conditions, the type of reaching, and the degree to which claimant was hurried.

Petitioner observes that Dr. Shugoll's November 1983 report states that claimant was working under "hot conditions," as opposed to claimant's trial testimony that "it was warm, but we had worked warmer days than that." At the hearing, Dr. Shugoll stated that 80 degrees with approximately 38 percent humidity would not of itself stress the heart inordinately. According to petitioner, Dr. Shugoll had the impression in November 1983 that claimant was working on the ceiling, while claimant testified that he was working on the area where the wall meets the ceiling. Lastly, petitioner suggests that claimant explained to Dr. Shugoll that he had to rush upstairs and was hurried, but at the hearing, claimant merely stated that he walked up the stairs and did not state that he was rushed in any other way.

We disagree that claimant's testimony at the hearing constituted a significant departure from the facts relied on by Dr. Shugoll in his November 1983 report. The hearing examiner specifically concluded that "claimant was a credible witness and I believe that claimant's testimony at the hearing and the history he gave to Dr. Shugoll reflect what occurred on June 8, 1983." The hearing examiner accepted claimant's testimony that it was humid in the basement. Dr. Shugoll explained that humidity is a more important factor than heat. The hearing examiner credited claimant's testimony that he would have to reach above his head to work on the area where the ceiling meets the walls. Dr. Shugoll's report notes that claimant "was working on ceiling which is more strenuous than average," and he' testified that he had the impression that claimant was working with his hands over his head a large portion of the time. To a significant degree— on the question of whether claimant's hands were over his head—the two versions are consistent.

Lastly, the hearing examiner accepted claimant's testimony and history given to Dr. Shugoll that he was under stress. Although claimant used the words "walked up the stairs" instead of "rushed," the full context of his testimony supports the hearing examiner's finding. Claimant explained that he was told to go up to the 5th floor because they were pouring concrete. Once there, the fact that the concrete was already setting required claimant to go to work immediately. Clearly claimant's testimony demonstrates a pressured and rushed...