Pennington v. Reading and Bates Const. Co., 83-60

Citation432 So.2d 1173
Decision Date25 May 1983
Docket NumberNo. 83-60,83-60
PartiesLee Roy PENNINGTON, et al., Plaintiffs-Appellants, v. READING AND BATES CONSTRUCTION COMPANY and American Home Assurance Company, Defendants-Appellees.
CourtCourt of Appeal of Louisiana — District of US

Book & Thibodeaux (Fred A. Book, Jr., and M. Steven Beverung), Lake Charles, for plaintiffs-appellants.

Plauche, Smith & Nieset (Frank M. Walker, Jr.), Lake Charles, for defendants-appellees.

Before CUTRER, DOUCET and KNOLL, JJ.

DOUCET, Judge.

In this workmen's compensation case, plaintiff seeks benefits as the widow of Lee Roy Pennington who died on January 6, 1979 as the result of a dissecting aneurysm of the aorta. The issue presented is whether plaintiff established a causal connection between the heart attack and employment. We affirm the trial court's denial of benefits.

Mr. Pennington was a welder's foreman with defendant-appellee, Reading and Bates Construction Co. His job required him to supervise 20 to 30 men constructing a pipeline through a muddy rice field near Crowley, La. On the day in question, January 6, 1979, Mr. Pennington arrived at the construction warehouse prior to the work crew. He boarded a bus which was pulled through the mud to the job site. Upon arrival at the job site, he walked around awaiting work and suddenly began to complain of excruciating pain. He was then taken via bulldozer approximately one mile to a road where a co-employee drove him to a hospital in Crowley. After reaching the hospital, he was transferred to a hospital in Lafayette and placed under the care of Dr. James Bozeman. Dr. Bozeman diagnosed plaintiff's affliction as a dissecting aneurysm of the aorta wall. Despite Dr. Bozeman's efforts, Mr. Pennington died on the operating table the same day because of the dissecting aneurysm. Following the worker's death, the defendant paid death benefits from the date of the accident until 19 months later when benefits were terminated without notice. Suit followed.

At trial, plaintiff alleged that on-the-job stress caused the accident. Dr. Bozeman, a cardiovascular surgeon, testified that a dissecting aneurysm is commonly associated with hypertension patients and the person with a job involving high stress is more likely to sustain such an injury. Similarly, Dr. Mehmood Pattel, also a cardiologist, testified that he was of the opinion that a rise in Mr. Pennington's blood pressure could have caused the accident. However, Dr. Pattel was unable to ascertain whether the rise in blood pressure was related to plaintiff's work activity the date of the accident or if it was a long-standing condition. Neither physician was aware of any event or incident at work which could have reasonably caused Mr. Pennington's dissection. However, they both stated that stress, or other physical exertion could have caused the heart attack. Dr. Pattel further explained that a person's blood pressure goes up and down throughout the day depending on what they are doing.

Leo LaCaze, a bulldozer operator on the project under Pennington's supervision, testified that Pennington had done no actual work on the morning of the accident. LaCaze did note that Pennington was looking pale when he got off the bus. Pennington had lived with Robert Taylor the last four weeks of his life at a nearby motel and Taylor stated that he could not list one specific problem that would have caused any undue stress to Pennington on the job site, nor could he cite any examples of his anxiety or concern that Pennington was experiencing which could have reasonably been related to his accident. Prentice Brantley, Pennington's immediate supervisor, testified that there were no personal problems on the job that he was aware of and he had received no complaints or worries that could have concerned Pennington during his work. Both Brantley and Taylor testified that the work was on schedule and the crew was not short-handed. Nettie Pennington also testified that her husband had been a welding foreman for several years before his death and enjoyed his job very much. She knew of nothing on the job that was causing her husband any particular problems and knew of nothing that was preventing the job from running smoothly. The decedent's daughter, Virginia Morrison, also confirmed that her father loved his line of work and she was not aware of any anxiety or worries or concerns that her father may have had on this particular job.

At the conclusion of the trial, the trial judge found that the plaintiff failed to prove a work-related injury and dismissed plaintiff's suit.

From that judgment, plaintiff appeals and cited the following specifications there: (1) the trial court erred in holding that the plaintiff had not proved a causal connection between her husband's vascular accident and his employment; (2) the trial court erred in holding that a workmen's compensation claimant must show extraordinary stress which causes a vascular accident in order to recover benefits; and (3) the trial court erred in not finding that the defendant arbitrarily and capriciously suspended compensation payments.

Heart attacks have been found to satisfy the statutory requirements of personal injury by accident. Fields v. Sperry Rand Corp., 343 So.2d 339 (La.App. 2nd Cir.), cert. denied 345 So.2d 902 (La.1977); Roussel v. Colonial Sugars Co., 318 So.2d 37 (La.1975); Brown v. Kaiser Aluminum & Chem. Corp., 250 So.2d 99 (La.App. 4th Cir.), cert. denied 259 La. 807, 253 So.2d 66 (1971); Hemphill v. Tremont Lumber Co., 209 La. 885, 25 So.2d 625 (1946). The worker who experiences his heart attack/accident during an authorized rest period does so in the "course of his employment". Smith v. Walker, 35 So.2d 766 (La.App. 2nd Cir.1948); St. Alexandre v. Texas Co., 28 So.2d 385 (La.App.Orl.Cir.1946). The plaintiff in a workmen's compensation action however, has the burden of establishing by a preponderance of the evidence that the accident arose out of the employment. Hammond v. Fidelity and Casualty Co. of New York, 419 So.2d 829 (La.1982); Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977); Gradney v. Vancouver Plywood Co., 299 So.2d 347 (La.1974); Prim v. City of Shreveport, 297 So.2d 421 (La.1974); Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973).

In McDonald v. International Paper Co., 406 So.2d 582 (La.1981) the Supreme Court re-affirmed the principle stated in Ferguson v. HDE, Inc., 264 La. 204, 270 So.2d 867 (1972), that unusual mental or emotional strain could produce a compensable accidental effect in a worker. McDonald's stress included the fact that his employer had recently announced a mill closure and he was worried about that and the impending loss of his job. Also, the crews he supervised were shorthanded. The court, citing Ferguson, stated that "extraordinary mental or emotional work-related stress" could produce a compensable accident.

Allor v. Belden Corp., 393 So.2d 1233 (La.1981) provides a presumption in favor of the employee who is in good health before the accident, but only when "... there is a reasonable possibility of causal connection between the accident and the disabling condition."

The requisite link between the heart attack and employment was addressed in Adams v. New Orleans Public Service, Inc., 418 So.2d 485 (La.1982). In Adams, the Supreme Court held that a worker who in the course of employment suffered a shortness of breath and chest pains due to angina pectoris was entitled to workmen's compensation benefits where the attacks came suddenly and unexpectedly. The angina pectoris resulted from arterioslerosis, a condition of the arteries which had gradually worsened over the years, rather than from extraordinary stress or exertion. Nevertheless, benefits were due because the attacks themselves came suddenly, unexpectedly, without warning and in the course of plaintiff's employment. On rehearing, the court, in clarifying its reasons for awarding compensation, noted that the medical evidence was unanimous that stress caused angina pectoris and stated "It is clear that heat and physical stress of Adams' employment brought on the painful, sickening incident on his last night of work." 418 So.2d at 491. The court specifically noted that the fact the heart attack occurs on the job does not end the inquiry relative to causal connection.

During the same term the Louisiana Supreme Court again addressed the relationship between myocardial infarctions (heart attacks) and employment in Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626 (La.1982) discussed in Johnson, Recent Developments in the Law 1981-1982 Workers Compensation, 43 La.L.Rev. 613, 617-621. In Guidry, this court, through the trial judge herein, reversed the trial court's denial of benefits to the widow of a heart attack victim, believing the original opinion in Adams mandated recovery where the heart attack occurred suddenly on the job. 406 So.2d 303 (La.App. 3rd Cir.1981). The Supreme Court affirmed on other grounds. In reaching the result, the court stated: "... we expressly reject the following language in Adams on original hearing: 'where an injury occurs suddenly or unexpectedly it is compensable despite the absence of any physical stress or exertion', and '[t]he only pertinent inquiry is whether in fact, the accident [heart attack] happened on the job.' " 418 So.2d at 628. The court then reviewed the jurisprudence as follows:

In awarding compensation based on heart incidents, the early decisions focused on physical exertion and heat. In Hemphill v. Tremont Lumber Co., 209 La. 885, 25 So.2d 625 (1946), a carpenter's normal activities for the day in question required him to carry four 95 pound rolls of composition paper up a ladder to the roof and work there in the sun. When he finished the job, he complained of severe chest pains and died forty five minutes later on his way home from visiting the doctor. The Court found supra, 25 So.2d at 626-627 that:

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