Holmes v. Bruce Motor Freight, Inc.

Decision Date20 February 1974
Docket NumberNo. 56158,56158
PartiesRobert A. HOLMES, Appellee, v. BRUCE MOTOR FREIGHT, INC. and American Mutual Liability Insurance Company, Appellants.
CourtIowa Supreme Court

Hopkins, Bump & Huebner, Des Moines, for appellants.

Henry J. Haugan, Des Moines, for appellee.

Heard before MOORE, C.J., and MASON, LeGRAND, REES and UHLENHOPP, JJ.

UHLENHOPP, Justice.

The question in this workmen's compensation appeal is whether claimant established as a matter of law that a heart attack (myocardial infarct) arose out of and in the course of his employment. See Code 1973, § 85.3(1). A heart attack, if attributable to the employment, is a compensable 'injury,' although the claimant already had latent heart disease. Littell v. Lagomarcino Grupe Co., 235 Iowa 523, 17 N.W.2d 120. The claimant has the burden of proving by a preponderance of the evidence that some employment incident or activity brought about the health impairment on which he bases his claim. Lindahl v. L. O. Boggs Co., 236 Iowa 296, 18 N.W.2d 607; Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867. A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732. The incident or activity need not be the sole proximate cause, if the injury is directly traceable to it. Langford v. Kellar Excavating & Grading, Inc., 191 N.W.2d 667 (Iowa). Judicial review of a decision of the Iowa Industrial Commissioner is not de novo, and the commissioner's findings have the force of a jury verdict. Paveglio v. Firestone Tire & Rubber Co., 167 N.W.2d 636 (Iowa). The commissioner, not the court, weighs the evidence, and the court broadly and liberally construes the commissioner's findings to uphold rather than defeat his decision. Musselman v. Central Tel. Co., 261 Iowa 352, 154 N.W.2d 128. The question is not whether the evidence is sufficient to support a finding the commissioner did not make but whether the evidence supports the finding he did make. DeShaw v. Energy Manufacturing Co., 192 N.W.2d 777 (Iowa).

A hearing was held before the Deputy Iowa Industrial Commissioner on the present claim and a hearing on review was held before the Iowa Industrial Commissioner himself. The hearings were of some length and we cannot restate all the evidence. We will set out sufficient to show the problem involved.

Claimant Robert A. Holmes, then 41, worked for Bruce Motor Freight, Inc. for three years making local deliveries. Subsequent examinations showed that during the period in question he had several problems unrelated to his heart--a duodenal ulcer, a hiatal hernia, a nonfunctional gall bladder, a diverticulum coming off the duodenal loop, and emphysema. At some point he also had pneumonia and a possible pulmonary embolus (an abnormal particle in the lung). Also at some time and from some cause--and this is the dispute in the case--he sustained a myocardial infarct (localized death of heart muscle resulting from obstruction of circulation by blood clot or abnormal particle). The myocardial infarct rendered him wholly and permanently disabled and constitutes the foundation of the claim.

Claimant predicates his claim on an incident that occurred on Thursday, April 6, 1967, which he asserts caused his heart attack. At that time he was helping to move heavy barrels. While tipping a barrel, he lost control of it and it pinned him near the stomach or waistline against other barrels. He pushed the barrel aside and let it go to the floor. Later, other barrels were also dropped.

Claimant's testimony at the hearings was not altogether consistent with statements he made after the incident. He testified that he did not experience pain when the barrel pinned him, and he and his fellow employee then moved other barrels. But he soon experienced difficulty breathing and went out on the dock to get fresh air and have a cigarette. He returned and helped move additional barrels. He testified he then had some stomach and chest pain. He helped load another trailer with cartons and testified he noticed some pain in his stomach and chest. He also stated however that he 'did such loading for an hour and a half or two hours and did not experience any further pain or discomfort other than in his stomach.' He then went to eat but the food did not taste good. He noticed no pain when he went back to work from lunch nor during that night. He returned to work on Friday, April 7. That day he helped load laundry carts and truck tires but did not eat breakfast or lunch. He testified he did not feel any pain in his shoulders but had an upset stomach and pain around the waist.

Claimant further testified that on Saturday morning, April 8, his 'back and shoulders were killing him.' He tried a hot bath and liniment, without relief. He called Bruce's terminal manager who referred him to Robert J. Foley, a medical doctor. Dr. Foley had treated a great many heart conditions. The information which claimant related to Dr. Foley does not altogether square with claimant's subsequent sequent testimony about some of his symptoms following the April 6 incident. Dr. Foley testified:

Q. Doctor, do you recall the complaints that were first made when Mr. Holmes presented himself to you? A. Mr. Holmes came in complaining of pain in the upper back, low cervical area, with some radiation on the back side to the left, but it was all on the posterior surface of the chest.

Q. Did you also make an examination of him at that time? A. Yes.

Q. And what did your examination reveal, Doctor? A. Mainly that he had a spasm in the paraspinous muscles and the area where he complained of pain. I didn't see any bruising, anything like that, on the skin. He had--this pain that he complained of was aggravated some by motion, and I don't mean by that exertion, but motion of the affected area when he would twist himself or turn it seemed to aggravate this pain.

By feeling the area where claimant complained of pain, Dr. Foley found that claimant had a muscle spasm in the cervical and thoracic area of the back. He stated, 'The muscles were tight and hard, more so than you would expect in the ordinary relaxed situation.'

Dr. Foley further testified:

Q. Was there any complaint about chest pain, doctor? A. No complaint of chest pain then.

Q. How about a complaint of a pain in the left arm or of the immediate area? A. No.

This testimony is consistent with claimant's statements on cross-examination that he did not tell Dr. Foley about shortness of breath or chest pain.

Dr. Foley testified in addition:

Q. Did you make a diagnosis at that time, Doctor? A. Yes. I X-rayed the areas that were--that could be involved with this and the X-rays were normal and my conclusion then was that this was an acute myofascial strain.

Also:

Q. Did you diagnose at that time a myocardial infarction or a heart contusion? A. No, I did not.

Q. Were there any symptoms related to you to lead you to believe that the patient might have been suffering from either a myocardial infarction or a myocardial contusion at that time? A. None at all.

Dr. Foley prescribed a muscle relaxant and an analgesic.

Claimant worked on Monday, April 11. The medication upset his stomach so he returned to Dr. Foley on April 14. At that time he still complained of back pain but at this time it was lower, in the lumbar area. Dr. Foley examined him again but found no reason to change the diagnosis. Claimant did not complain about chest or arm pain. After explaining in his testimony the symptoms of myocardial contusion and myocardial infarction, Dr. Foley testified:

Q. Doctor, did Mr. Robert A. Holmes have either the symptoms you have related to the myocardial contusion or the myocardial infarction when you had occasion to treat him on April 8th, 1967, or on April 14th, 1967? A. No.

Q. And by no you mean he had none of the symptoms? A. The symptoms that the patient related to me were in no way suggestive of heart pain or heart damage at all.

Also:

Q. There was nothing to suggest in either of the two separate occasions when you examined Mr. Holmes, either by his own complaint or by your physical examination, to suggest that he had a myocardial infarction, is that correct? A. No, there was nothing.

Claimant worked the rest of that week. He did not lose any time at Bruce's from April 6 to 17 except while with the physician. He testified, though, that during the rest of the week of April 11 he felt run down, but that '(h)is stomach was the main reason for everything. He just seemed to have lost his appetite. Otherwise during that week he did not experience any pain but just felt run down because he was not eating.' He asked the terminal manager for permission to see another doctor, and an appointment was made. But before that time arrived, other events occurred.

Claimant returned to work on Monday, April 17, and worked that day. He testified his stomach, back, and arms pained. That evening he contracted Dr. E. K. Wirtz and entered a hospital where he remained until May 10.

The statements which Dr. Wirtz testified claimant made to him were considerably different from those claimant admittedly made to Dr. Foley. Dr. Wirtz testified claimant stated that after the barrel incident he had severe pain in his chest and down his arms and he would break out in a cold sweat and become weak. Dr. Wirtz examined him and took X-rays and obtained electrocardiograms. He discovered the ulcer, hernia, nonfunctional gall bladder, and diverticulum. He also found lung involvement which could be pneumonia...

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