Johnson v. City of Duenweg Fire Dept.

• Decision Date: 14 July 1987
• Docket Number: No. 68906,68906
• Citation: 735 S.W.2d 364
• Parties: Guila Kern JOHNSON (Substituted for George A. Johnson, Jr., Employee-Deceased), Claimant-Appellant, v. CITY OF DUENWEG FIRE DEPARTMENT, Employer, and Continental Insurance Company, Insurer, Defendants-Respondents.
• Court: Missouri Supreme Court

Page 364

735 S.W.2d 364

Guila Kern JOHNSON (Substituted for George A. Johnson, Jr., Employee-Deceased), Claimant-Appellant, v. CITY OF DUENWEG FIRE DEPARTMENT, Employer, and Continental

Insurance Company, Insurer, Defendants-Respondents.

No. 68906.

Supreme Court of Missouri,

En Banc.

July 14, 1987.

Rehearing Denied Sept. 15, 1987.

Raymond E. Whiteaker, Thomas Y. Auner, Springfield, for claimant-appellant.

Lloyd R. Buehner, Joplin, for defendants-respondents.

HIGGINS, Judge.

Claimant appeals a judgment which reversed an award of statutory minimum compensation by the Labor and Industrial Relations Commission on a finding of no competent substantial evidence of causation. The trial court also found that although no compensation is due in absence of causation, it would affirm the minimum rate determined by the Commission. The Court of Appeals, Southern District, affirmed the judgment in a divided decision. This Court affirms the judgment in part and reverses it in part to remand the case to the Labor and Industrial Relations Commission for reentry of its award.

Claimant, George A. Johnson, Jr., a self-employed mechanic in Duenweg, Missouri, was an unpaid member of the Volunteer Fire Department of the City of Duenweg. On July 30, 1980, the claimant responded to several fire alarms. The first alarm called the firemen to a prairie fire around 11:00 a.m. The call lasted until approximately 2:30 p.m. At 2:30 p.m. a second alarm sounded. Claimant was at the second fire from about 3:30 p.m. until 11:30 p.m. At approximately 8:00 p.m., at the site of the second alarm, claimant experienced intense pain in his chest which radiated to his arms and lasted for about one-and-one-half hours. During this time he stopped driving the fire truck and sat and rested until the pain subsided. When the pain in his arms and chest subsided, claimant resumed his duty of driving the fire truck until about 11:00 p.m. when the fire was brought under control. The volunteers returned to Duenweg for an evening meal. Johnson went home because he did not feel well enough to eat with the others.

The next day, claimant's wife called a doctor to make an appointment for him. She was told that the earliest possible appointment date was August 26, 1980. Mrs. Johnson requested a physical for her husband because she did not know the source of his pains. Until August 8, 1980, claimant attempted to continue his work as a mechanic and to answer fire alarms although he was very tired and occasionally experienced pain in his chest and left arm.

On August 8, after answering a grass fire alarm, plaintiff returned home at about 3:00 p.m. and closed his shop because he felt too tired to work. At approximately 7:30 p.m., he experienced extreme pain in his chest and arms. Don Johnson, claimant's neighbor and the Duenweg Fire Chief, advised claimant to go to the emergency room. Claimant went to the hospital and was diagnosed by Dr. Dennis Smith as having had a heart attack. Tests taken at that time revealed that claimant had sustained permanent damage to his heart as a result of decreased blood flow to the heart muscle. Mr. Johnson has since died and his widow, Guila Kern Johnson, has been substituted as the claimant in this case.

On December 10, 1980, claimant filed his Report of Injury with the Division of Workers' Compensation. After a hearing on the matter, the administrative law judge found in favor of the employer and insurer against the claimant and denied compensation stating that the claimant had not proved a causal connection between the accident of July 30, 1980, and the heart attack. The Labor and Industrial Relations Commission reversed the administrative law judge and entered an award of compensation. The Commission held that there was a medical causal connection between this accident and the claimant's injury, and found the statutory minimum rate of compensation, $16.00 per week, to be the applicable wage rate pursuant to section 287.170 and section 287.190, RSMo 1978.

Thus the issues are whether there was sufficient evidence for the Labor and Industrial Relations Commission to find a causal connection between the occurrence on July 30, 1980, and the claimant's injuries and permanent disability; and if so, whether the Commission applied the proper rate of compensation.

I.

Upon review, an award of the Labor and Industrial Relations Commission may be overturned only if it is not supported by substantial evidence or when it is clearly contrary to the overwhelming weight of the evidence. Vogel v. Hall Implement Co., 551 S.W.2d 922 (Mo.App.1977). Thus, it is the duty of the reviewing court 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 findings of the Commission. Brown v. Missouri Lumber Transports, Inc., 456 S.W.2d 306 (Mo.1970); Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292 (Mo.1965).

There was sufficient evidence to support the finding of causation by the Commission. At the administrative hearing, claimant's physician, Dr. Smith, was asked his opinion of the cause of the pain the claimant experienced while fire fighting on July 30. Dr. Smith testified that he could not "exclude that he did not have a myocardial infarction at that time." He further testified that "[i]t probably would not have occurred at that time if he had not been under such stress." The doctor acknowledged that because he did not run any laboratory tests or cardiographs at that time he could not state with "reasonable medical certainty" that the claimant had a heart attack on July 30. The claimant emphasizes the intense heat under which the fire fighting operations were performed on July 30, 1980. It was also noted that because of particularly hot and dry conditions additional units from nearby towns were required in order to bring the fire under control. The employer and insurer maintain that the doctor could not be absolutely certain that claimant suffered a heart attack while fighting the fire and, therefore, the claimant did not successfully establish a causal relationship.

In Martin v. City of Independence, 625 S.W.2d 940 (Mo.App.1981), the court noted that some hesitancy in an expert's testimony is common. In Martin, the claimant's widow filed a workers' compensation proceeding against the employer claiming that her husband's fall on an icy dock accelerated the rupture of a pre-existing arteriosclerotic abdominal aortic aneurysm causing his death. At the hearing before the administrative law judge, the widow and other witnesses testified that prior to the accident the claimant, William Martin, had appeared in good health and had no symptoms of injury. The accident occurred when Martin and a co-worker were unloading transformers from a trailer. Martin lost his footing on the icy dock and fell. Soon after, Martin complained that his abdomen and back hurt. At noon, Martin filed an accident report, ran a few errands for his employer, the Power and Light Department, and then went home to bed. The next morning, Martin continued to complain of abdominal pain and by late morning became semi-comatose. Martin died on the way to the hospital. Although the Labor and Industrial Relations Commission found in favor of the claimant, the employer alleged on appeal that the award should not be affirmed because there was insufficient evidence to find a causal connection between the claimant's death and a work-related injury. Id. at 941.

A cardiologist testified that "aneurysms usually develop over a period of years, and they may rupture at any time." The doctor stated that the stress Martin suffered during the accident "conceivably contributed to his death from ruptured abdominal aorta." Id. Despite the hesitancy in the expert's opinion, the court affirmed the decision of the Commission. The court quoted at length from Professor Larson's treatise on workers' compensation law:

The distinction between probability and possibility should not follow too slavishly the witnesses' choice of words as sometimes happens in respect to medical testimony. A doctor's use of words, such as "might", "could," likely", "possible" and "may have", coupled with other credible evidence of a non-medical character, such as a sequence of symptoms or events corroborating the opinion, is sufficient to sustain an award.

625 S.W.2d at 941, citing Larson, 3 Workmen's Compensation Law § 80.32. The treatise adds that cautious expert testimony combined with the testimony of lay witnesses can provide sufficient competent evidence in support of causation. Id. The testimony in compensation proceedings should be appraised and weighed in its entirety.

Similarly, in this case the Commission reasonably concluded from the evidence that the claimant's pre-existing heart condition was activated by the unusual exertion on the job. Before the incident on July 30, the claimant had not complained of pain in his chest or arms. The pain lasted from one to one-and-one-half hours, the average time normally associated with a heart attack. The claimant continued to complain of tiredness and additional pain until the subsequent heart attack on August 8. In a letter to claimant's attorney, Dr. Smith stated that "it was the stress that precipitated his clinical symptomatology."

The employer and insurer argue that Martin is distinguishable. They point to the short time between Martin's accident and his death and emphasize that after the accident he was unable to work. True, the nature of the claimant's injury differed from Martin's; however, in some cases victims of heart attacks are not immediately incapacitated. The employer and insurer also argue that claimant's case is of the type that requires exclusive use of medical testimony to find causation and is of such a sophisticated nature that it cannot be aided by lay testimony. In Martin, lay witnesses testified that he was not suffering from the...