Mooney v. Benson Management Co.

• Decision Date: 10 May 1982
• Citation: 451 A.2d 839
• Parties: James P. MOONEY, Employee-Appellant, v. BENSON MANAGEMENT COMPANY, Employer-Appellee. . Submitted:
• Court: Delaware Superior Court

Page 839

451 A.2d 839

James P. MOONEY, Employee-Appellant, v. BENSON MANAGEMENT COMPANY, Employer-Appellee.

Superior Court of Delaware New Castle County.

Submitted: May 10, 1982.

Decided: June 10, 1982.

Sidney Balick, of Aerenson & Balick, Wilmington, for employee-appellant.

Robert W. Ralston, of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, for employer-appellee.

OPINION

TEASE, Judge.

This is an appeal from a decision of the Industrial Accident Board (Board) denying claimant's (Mooney's) petition for workmen's compensation for a heart attack.

The facts are not disputed: Mooney has been in the construction trade for over 30 years, the last 10 of which have been spent as a construction superintendent for a variety of construction companies. On November 1, 1979, he began working for Benson Management Company (Benson) in such a position; a job admittedly stressful because of the nature of his responsibilities and the people he had to deal with on a daily basis. On November 27, 1979, Mooney experienced tightness and pain in his chest while arguing with a painting sub-contractor in the normal course of his job. The pain subsided and he went to his family doctor, who referred him to a specialist in cardiology, Dr. Levy. Dr. Levy performed a variety of tests, prescribed medication, and continued to see him until January 8, 1980. Mooney continued to work for Benson until May 9, 1980, when he suffered a severe myocardial infarction which required his hospitalization. He seeks compensation for the economic loss and medical bills caused by the May 9 heart attack.

The Board made factual findings that Mooney had a pre-existing heart condition prior to May 9, 1980, and that he was not involved in any unusual exertion on that date. Compensation was denied on that basis.

Mooney makes two arguments on appeal: (1) That the Board erred as a matter of law when it applied the "Unusual Exertion" theory to the facts of his case rather than the "Cumulative Detrimental Effect" theory; and (2) that the Board's finding of a pre-existing heart condition is not supported by substantial evidence.

Mooney intertwines these two arguments by asserting that the pre-existing heart condition the Board presumes to find is really the cumulative detrimental effect of his job on his health and as a consequence he need only prove "usual exertion" on the day of his injury.

Under the well-established standard and scope of review imposed on this Court by statute and case law, we can only examine the record and determine if there is substantial evidence to support the findings and conclusions of the Board. If such evidence exists and the Board has made no error of law, its decision must be affirmed. 29 Del.C. § 10142; Air Mod Corp. v. Newton, Del.Supr., 215 A.2d 434 (1965).

I believe the Board applied the correct theory to the facts of this case. Mooney's only argument before the Board was that he did not have to prove unusual exertion because there was no pre-existing heart condition. He did not argue the "cumulative detrimental effect" theory before the Board, and should not be permitted to raise it for the first time on appeal. See Wilmington Trust Company v. Conner, Del.Supr., 415 A.2d 773, 781 (1980).

Mooney argues that even though he failed to characterize his argument below as the cumulative detrimental effect theory, under the case of Chicago Bridge & Iron Co. v. Walker, Del.Supr., 372 A.2d 185 (1977), that is the only applicable theory because of the absence of a pre-existing condition. While that argument might have some merit if the Board had found no pre-existing condition, it is unpersuasive in light of the fact that the Board decided the case on the very theory on which it had been presented, i.e.: unusual exertion. The Court in Chicago Bridge held that the Board erred in not applying the cumulative detrimental effect theory because it had made a factual finding that "... the claimant's work, admittedly heavy, gradually, over a period of time, took its toll on the claimant's health". 372 A.2d at 188. The Court said: "Clearly, that finding requires testing of plaintiff's claim under the [cumulative detrimental effect] concept noted above". Id. Not only has the Board not made any such finding in this case, but the cumulative theory requires a "gradual deterioration", 372 A.2d at 188, of a workman's health and causal connection between that deterioration and the injury. The record in this case fails to reveal any evidence that the stress of Mooney's job with Benson caused a gradual deterioration of his health leading to his heart attack of May 9, 1980. Instead, the medical testimony of Mooney's own witness, Dr. Levy, was that stress alone can cause a spasm of an artery, thus causing a heart attack, and the shorter the interval of time between the...