Nuanes v. State ex rel. Wyoming Worker's Compensation Div., 84-88

• Decision Date: 23 January 1985
• Docket Number: No. 84-88,84-88
• Citation: 694 P.2d 86
• Parties: Francis NUANES, Appellant (Employee-Claimant), v. STATE of Wyoming ex rel. WYOMING WORKER'S COMPENSATION DIVISION, Appellee (Objector-Defendant), Lower & Co., Inc., (Employer-Defendant).
• Court: Wyoming Supreme Court

Page 86

694 P.2d 86

Francis NUANES, Appellant (Employee-Claimant), v. STATE of Wyoming ex rel. WYOMING WORKER'S COMPENSATION DIVISION, Appellee (Objector-Defendant) Lower & Co., Inc., (Employer-Defendant).

No. 84-88.

Supreme Court of Wyoming.

Jan. 23, 1985.

James A. Hardee, Douglas, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Terry J. Harris, Asst. Atty. Gen., Cheyenne, for appellee.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

ROONEY, Justice.

This is an appeal from an order of the district court denying the claim of appellant for benefits under the Wyoming Worker's Compensation Act. The issues raised by appellant are as follows:

"I. THAT THE TRIAL COURT ERRED IN DENYING THE CLAIM OF THE APPELLANT FOR THE REASON THAT THE TRIAL COURT'S FINDING THAT THERE WAS NO CAUSATIVE EXERTION IS UNSUPPORTED BY THE EVIDENCE AND IS ERRONEOUS AS A MATTER OF LAW.

"II. THE TRIAL COURT ERRED IN DENYING THE CLAIM OF THE APPELLANT IN THAT THE COURT'S

FINDING THAT THERE WAS NO 'DIRECT CAUSAL CONNECTION BETWEEN THE WORK BEING PERFORMED AND THE CARDIAC ATTACK', IS UNSUPPORTED BY THE EVIDENCE."

Appellant had worked as a journeyman painter for the majority of his adult life. On July 21, 1983, appellant was employed, through his union, by appellee Lower and Co., Inc. at the Dave Johnson Power Plant at Glenrock, Wyoming. On April 18, 1983, after painting one wall of the office he had been assigned to paint, appellant found it necessary to move four filing cabinets away from another wall to paint it. Each cabinet weighed between 200 and 300 pounds. Approximately five minutes after moving the last cabinet, appellant experienced chest pains and difficulty in breathing. Because of his condition, it took appellant 45 minutes to cover a 600-foot distance to notify his supervisor. Thereafter appellant was taken for treatment, and the next day underwent arterial by-pass surgery. Appellant was diagnosed as having a 99% occlusion of the anterior descending artery and a 60% narrowing of the circumflex system. Three weeks prior to April 8, appellant had completed a physical which indicated no problems whatsoever, and appellant had experienced no prior symptoms.

Appellant submitted his claim for benefits under the Wyoming Worker's Compensation Act, ¹ and the State of Wyoming ex rel. Wyoming Worker's Compensation Division objected. Lower and Co., Inc. later joined in this objection. The matter was tried to the court, which denied the claim of appellant for benefits, based on § 27-12-603(b), W.S.1977, which reads as follows:

"(b) Benefits for employment-related coronary conditions except those directly and solely caused by an injury or disease are not payable unless the employee establishes by competent medical authority that there is a direct causal connection between the condition under which the work was performed and the cardiac condition, and then only if the causative exertion occurs during the actual period of employment stress clearly unusual to, or abnormal for, employees in that particular employment, and further that the acute symptoms of the cardiac condition are clearly manifested not later than four (4) hours after the alleged causative exertion."

Section 27-12-603(b), supra, outlines the criteria according to which an employee can receive compensation for a work-related coronary condition. In previous cases, we have recognized that § 27-12-603(b), supra, contains four basic requirements, to-wit:

"(1) The claimant must establish a period of employment stress unusual or abnormal for employees in claimant's occupations;

"(2) Claimant must show that he or she engaged in some exertion during the period of unusual or abnormal employment stress;

"(3) Claimant must establish by competent medical evidence a direct causal connection between such exertion and the myocardial infarction; and

"(4) Claimant must show that the acute symptoms of the cardiac difficulty were clearly manifested within four hours after the alleged causative exertion." Claim of McCarley, Wyo., 590 P.2d 1333, 1335-1336 (1979).

Specifically, the district court found that:

" * * * [T]he testimony does not indicate to the court that Mr. Nuanes was engaged in an activity during the actual period of employment unusual or abnormal to his employment. Mr. Nuanes did slide file cabinets away from the wall, they were heavy but and there is no testimony that the cabinets were heavier or more difficult to move than various types of furniture and fixtures, such as desks, which he routinely moved as a regular part of is [sic] employment." Opinion Letter of February 16, 1984.

In addition, the district court said in its Opinion Letter " * * * [A]fter a careful reading of the Doctor's deposition I cannot find where he states specifically that the moving of the filing cabinets was the direct casual [sic] connection between the work being performed and the cardiac attack."

Thus, it found that two of the four statutory requirements were not met by appellant. Appellee State of Wyoming categorized these requirements as proof of legal causation and proof of medical causation.

We will first address appellant's second issue: whether there was a direct causal connection between the work being performed and the cardiac attack, or in other words, was the trial court correct in ruling that the evidence was insufficient to establish medical causation. We note here that on appeal we assume that the evidence in favor of the successful party is true, and leave out of consideration entirely the evidence presented by the appellant in conflict therewith, and we give the evidence of the successful party every reasonable inference that may be drawn therefrom. Distad v. Cubin, Wyo., 633 P.2d 167, 180 (1981); Brittain v. Booth, Wyo., 601 P.2d 532, 535 (1979). We also note that the burden of proof in a worker's compensation case rests with the employee to show the essential elements of his claim by a preponderance of the evidence. Jim's Water Service v. Eayrs, Wyo., 590 P.2d 1346, 1351 (1979).

We have dealt with the issue of medical causation before. In Claim of McCarley, supra, we denied compensation for a worker's coronary condition because the record was devoid of any medical testimony establishing the necessary causative link, and in fact the doctor's statements led to the conclusion that the employee suffered a heart attack as a result of exertion occurring off the job, and removed from any work-related stress.

In Jim's Water Service v. Eayrs, supra, 590 P.2d at 1349, we stated that:

" * * * The question that needs to be answered is whether the work effort contributed to a material degree to the precipitation, aggravation or acceleration of the existing disease and the resulting death. Claim of Vondra, Wyo., 448 P.2d 313 (1968); Claim of Hill, Wyo., 451 P.2d 794 (1969); Claim of Brannan, Wyo., 455 P.2d 241 (1969) * * *."

And, we upheld the award of compensation based on a doctor's testimony that the work-related stress was a "contributory factor" and that the arrhythmia "very likely" and "probably" was due to the physical exertion and strain of attempting to free his truck from a snow bank. In Wyoming State Treasurer ex rel. Wyoming Worker's Compensation Division v. Schwilke, Wyo., 649 P.2d 218 (1982), we held that medical testimony such as "most likely" and "contributed to" is of sufficient certainty to establish the required causative link.

Finally, in Kaan v. State ex rel. Wyoming Worker's Compensation Division, Wyo., 689 P.2d 1387, 1389 (1984), we concluded that:

" * * * The causal connection requirement is satisfied if a medical expert testifies that it is more probable than not that work exertion or stress contributed in a material degree to the precipitation, aggravation or acceleration of a myocardial infarction."

Applying those standards to the case at bar, it is clear that appellant did not meet his burden of proof on the issue of medical causation. Appellant's only medical expert, a cardiac surgeon, refused to say more than there "could have" been a causal connection between the moving of the filing cabinets and the attack, or that it is "certainly possible" that the effort precipitated, aggravated or accelerated the heart attack. He testified that:

"A. Okay. A myocardial infarction comes about, at least according to the best of our belief, as a result of an imbalance between supply and demand of the heart. If for some reason the blood supply to the heart is reduced, such as by an arthrosclerotic [sic] plaque, but excessive demands are made upon the heart, that can certainly precipitate an infarction.

"Now, of course, if the person didn't have the pre-existing plaque, he could well sustain the amount of exertion required.

"Okay. But you know, to ask did exertion cause the heart attack, I don't think I am going to answer that yes or no. I will lay out the picture which we all have in our minds of a narrowed artery in a heart. And for some reason the patient exerts more than usual. Okay. And this is a strict supply-demand situation. Now, his supply of blood to that area is limited by the narrowing, but the demand on the muscle is more than the supply, and that's believed to be the way in which an infarction, death of muscle, can occur.

* * *

* * *

"Q. In this particular instance given--I don't know how you want me to approach this. Hypothetically, let's assume that Mr. Nuanes was moving file cabinets and that type of thing. Is it possible or even probable that that type of activity would place this type of excess demand on that portion of the heart?

"A. It could have--first let me say that I don't know the particular--

"Q. I am saying hypothetically.

"A. I really don't know the circumstances under which he had immediate onset of pain.

"Q. Uh-huh.

"A. Yes, any type of exertion can increase the demand above the supply. Now, whether you call that demand excessive, what is...