Haynes v. Emerson Elec. Co.

• Citation: 799 S.W.2d 939
• Decision Date: 08 November 1990
• Docket Number: No. 16765,16765
• Parties: . EMERSON ELECTRIC COMPANY, Respondent. Missouri Court of Appeals, Southern District, Division One
• Court: Court of Appeal of Missouri (US)

Page 939

799 S.W.2d 939

Victoria Regina HAYNES and Courtney Allison Haynes, Appellants, v. EMERSON ELECTRIC COMPANY, Respondent.

No. 16765.

Missouri Court of Appeals,

Southern District,

Division One.

Nov. 8, 1990.

Motion for Rehearing and Transfer to

Supreme Court Denied Nov. 28, 1990.

Application to Transfer Denied Jan. 9, 1991.

James E. Reeves, Ward & Reeves, Caruthersville, for appellants.

James B. Kennedy, Evans & Dixon, St. Louis, for respondent.

CROW, Judge.

Claimants Victoria Regina Haynes and Courtney Allison Haynes appeal from a final award of the Labor and Industrial Relations Commission ("the Commission") denying compensation under The Workers' Compensation Law, chapter 287, RSMo 1978, as amended. Claimants, the only children of Luther Charles Haynes, sought benefits for his death. Mr. Haynes, an employee of Emerson Electric Company ("Emerson"), died of a heart attack March 28, 1984, while driving an 18-wheel tractor-trailer unit for Emerson.

The Commission, by a 2-1 vote, reversed an award by an administrative law judge ("ALJ") of the Division of Workers' Compensation allowing benefits. The majority of the Commission held claimants failed to establish Mr. Haynes' death "was the result of a job related accident."

The scope of our review is established by § 287.495, RSMo 1986. It provides, insofar as pertinent to this appeal:

"1. ... Upon appeal ... in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding. The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

....

(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

...."

We review the Commission's award, not that of the ALJ. Jordan v. D & L Custom Wood Products, 767 S.W.2d 378, 380 (Mo.App.1989); Richardson v. Falcon Products, Inc., 739 S.W.2d 596, 597 (Mo.App.1987); Long v. City of Hannibal, 670 S.W.2d 567, 569-70 (Mo.App.1984). Our duty is to determine from the record as a whole whether the Commission could reasonably have made its findings and award, reviewing the record in the light most favorable to the Commission's findings. Johnson v. City of Duenweg Fire Dept., 735 S.W.2d 364, 366 (Mo. banc 1987). The Commission is the sole judge of the weight of the evidence and the credibility of the witnesses. Welborn v. Southern Equipment Co., 395 S.W.2d 119, 125-26 (Mo. banc 1965); Smith v. Ozark Lead Co., 741 S.W.2d 802, 812 (Mo.App.1987). If the competent evidence or permissible inferences are conflicting the choice rests with the Commission and is binding upon us. Davis v. Roadway Express, Inc., 764 S.W.2d 145, 152 (Mo.App.1989); Katzenberger v. Gill, 690 S.W.2d 473, 475 (Mo.App.1985); Springett v. St. Louis Independent Packing Co., 431 S.W.2d 698, 700 (Mo.App.1968).

Section 287.120.1, RSMo 1978, provides:

"Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for ... death of the employee by accident arising out of and in the course of his employment...."

Section 287.020.2, RSMo Cum. Supp.1983, provides:

"The word 'accident' as used in this chapter shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury."

In Wynn v. Navajo Freight Lines, Inc., 654 S.W.2d 87 (Mo. banc 1983), the 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 compensation death benefits." Id. at 87-88.

Affirming the award, the Supreme Court of Missouri 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 stated:

"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.

In Staab v. Laclede Gas Co., 691 S.W.2d 343 (Mo.App.1985), the Eastern District of this Court applied Wolfgeher and Wynn in affirming the Commission's denial of workers' compensation benefits to the widow of an employee who suffered a fatal heart attack on the job. The Eastern District held an employee's death by heart attack is compensable if it is work induced and occurs during the performance of the employee's usual duties. 691 S.W.2d at 344.

In the instant case Mr. Haynes, age 36, and Hiram Jennings Houston drove as a team for Emerson. Their trips originated at a terminal in Kennett and took them "coast to coast." They usually departed Sunday afternoon and returned "late Friday or early Saturday morning." Houston testified, "[Y]ou try to figure out hours that you can drive and keep that truck in operation twenty-four hours a day." He explained, "[Y]ou can drive like ten hours and then you're supposed to take an eight hour break."

The journey during which Mr. Haynes died began Saturday evening, March 24, 1984, when he and Houston departed for Tempe, Arizona, with a cargo of motors. The motors were on pallets. There were between 26 and 30 pallets; each pallet weighed "[p]robably 2,000 pounds or more."

The duo reached Tempe early Monday morning and unloaded approximately half the pallets, using manual pallet jacks to pull the pallets from the trailer into a warehouse. The task, according to Houston, was "fairly strenuous" and required about half an hour.

They then drove to Phoenix, arriving in "less than an hour." There they unloaded the remaining pallets. This took another half hour.

From there they drove to Nogales, Arizona, arriving "sometime before noon." At Nogales some 44,000 pounds of chick peas were loaded on the trailer by the shipper. Neither Houston nor Haynes assisted. They departed Nogales Monday afternoon, Houston driving. Their destination was a cannery "about 50 or 60 miles north of Indianapolis," Indiana.

The tractor was equipped with a "sleeper bunk" which, according to Houston, was "not too comfortable." He explained, "You're bouncing and rolling around in that thing all the time." This interfered with his ability to rest and sleep. The heavier the load, the rougher the ride.

Houston and Haynes alternated driving. Haynes was driving when they reached Springfield, Missouri. There, Houston took over and Haynes got in the sleeper. He remained there until they reached a truck stop at Effingham, Illinois, some seven hours later. Houston did not know whether Haynes slept during that interval.

At Effingham, Haynes complained about a toothache and got "some toothache medicine to put on his tooth." The duo departed Effingham around 2:30 or 2:45 a.m., Wednesday, March 28, 1984, Haynes driving.

Around 6:00 or 6:30 that morning the unit was northbound on Interstate 465 at Indianapolis. Houston, who was in the sleeper, heard the glass "pop out" of the cab and heard Haynes "groan a couple times." Houston opened the curtain and saw Haynes "draped over the steering wheel." The vehicle came to rest upright in a ditch. Haynes was pronounced dead at the scene.

Haynes and Houston had traveled about 3,800 miles since leaving Kennett, each driving approximately half the distance. They had not stopped anywhere to sleep, but had stopped for fuel and meals.

An autopsy was performed on Haynes' body by a forensic pathologist at the Indiana University School of Medicine. Regarding the heart, the autopsy report states: "There is marked arteriosclerotic heart disease which is characterized by numerous atherosclerotic plaques which occlude the lumina as much as 75 to 80%." The cause of death is shown as: "Arteriosclerotic Heart Disease with Acute Myocardial Infarction."

The pathologist did not testify at the ALJ's hearing. Each side did, however, present a medical expert.

Claimants' expert was James Walter Bernard, M.D. He graduated from medical school in 1959 and is certified by the American Board of Family Practice. According to Dr. Bernard, high stress occupations affect a person's chances of a heart attack or heart disease. Stress increases the heart rate, produces arrhythmia in many instances, and in certain conditions can precipitate a fatal heart attack.

Haynes had been a patient at the clinic where Dr. Bernard practices, but Bernard never personally treated Haynes. Dr. Bernard was asked to assume Houston's testimony and the autopsy report were true, and to give his opinion on whether Haynes' death was "related to his job or occupation." Bernard answered, "I think it is related." His testimony continued:

"Q ... in your opinion based on this same information, is the occupation of a truck driver stressful?

A Yes, sir.

Q In your opinion does the stressful...