State ex rel. Wyoming Worker's Compensation Div. v. Van Buskirk

• Decision Date: 30 June 1986
• Docket Number: No. 86-8,86-8
• Citation: 721 P.2d 570
• Parties: The STATE of Wyoming, ex rel. WYOMING WORKER'S COMPENSATION DIVISION, Appellant (Objector-Defendant), The Town of Kaycee, Appellant (Employer-Defendant), v. Ernie E. VAN BUSKIRK, Appellee (Employee-Claimant).
• Court: Wyoming Supreme Court

Page 570

721 P.2d 570

The STATE of Wyoming, ex rel. WYOMING WORKER'S COMPENSATION DIVISION, Appellant (Objector-Defendant) The Town of Kaycee, Appellant (Employer-Defendant), v. Ernie E. VAN BUSKIRK, Appellee (Employee-Claimant).

No. 86-8.

Supreme Court of Wyoming.

June 30, 1986.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Patrick J. Crank, Asst. Atty. Gen., for State of Wyo.

Paul Jarvis, Buffalo, for Town of Kaycee.

Greg L. Goddard of Goddard & Perry, Buffalo, for appellee (employee-claimant).

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

URBIGKIT, Justice.

This is a police officer/heart attack/worker's compensation case, with trial-court granted benefits, and State division appeal. We affirm.

Ernie Van Buskirk, age 47, a one-man police department in the rural town of Kaycee, Wyoming, suffered a heart attack from activities in connection with a house fire, for which he filed a Worker's Compensation claim. The Wyoming Worker's Compensation Division objected, the district court approved, and the division appealed to this court from the benefit grant.

As a one-man police department, Van Buskirk had an on-call schedule of seven days a week, 24 hours a day, but August 6, 1985, was a day when he was normally scheduled for a day off. At two o'clock, or thereabouts on that afternoon, he had taken his grandson to the office in town for child-protection fingerprinting, when a call came in to the town clerk regarding a major fire at a house located just outside the city limits. Van Buskirk immediately contacted the Johnson County Sheriff's office in Buffalo for a rural fire-department alert, and proceeded to the edge of town to direct traffic for the fire engine. After contacting the deputy sheriff, he went to the scene of the fire, and, noting the serious problem, then returned to City Hall to ring the fire alarm and summon the town fire department. Encountering delay, since the town maintenance man, who drove the fire engine, was not immediately available, and after determining that the needed driver was at the town dump, Van Buskirk drove to that location outside of the town, got out of the car, ran into the dump area to find the fireman, completed the fire-call alert, and then again returned to the edge of town near the fire scene, to direct traffic for the town fire engine. After the fire engine had passed, he returned to the scene of the fire, and, noting the seriousness of the occurrence and the nearly total fire destruction, contacted the REA to request an electricity disconnect. As these activities were ending at the fire scene, fire out and house burned down, a feeling of discomfort in his chest developed, which quickly matured to a typical myocardial infarction, resulting in immediate hospitalization for the resulting coronary condition and treatment in Buffalo.

Having had no prior history of heart trouble, Van Buskirk filed this claim for Worker's Compensation benefits.

After a formal hearing before the district court, a ruling was made granting employment-incurred compensatory benefits for the coronary medical care costs, and temporary disability condition.

Three issues were advanced by appellant in its brief, which essentially involve: ¹

I. Sufficiency of the employee's proof to justify a worker's compensation award for a coronary attack.

II. Whether the actions and activities involved in the effort for the day were beyond the scope of employment and consequently not compensable as employment-incurred.

Considering the second issue first, the argument is that with the house fire physically beyond the city limits, the town employee was not performing a function for the town in his activities at the time. This argument is rejected as ignoring reality and intra-governmental fire-fighting cooperation expected and required in rural Wyoming.

The burden of persuasion in trial presentation was met by the employee, and we will not hold that the decision as we review the evidence in the light most favorable to the trial court's finding lacks substantial evidence to support the result determined. Claim of Cannon, Wyo., 718 P.2d 879 (1986); Pacific Power and Light v. Parsons, Wyo., 692 P.2d 226 (1984).

"Whether an injury arises out of and in the course of employment is a question for the trier of fact in a worker's compensation case. The burden is on the worker to prove that his injury arose in the course of employment. There must be some substantial competent evidence to warrant the trier of fact drawing such an inference. Standard Oil Co. of Indiana v. Sullivan, 33 Wyo. 223, 237 P. 253 (1925)." Matter of Van Matre, Wyo., 657 P.2d 815, 816 (1983).

We believe that the district court reasonably summarized the situation:

"THE COURT: Well, as far as the issue of whether or not Mr. Van Buskirk was in the course of his employment, the fire was within sight of the city, and I'm sure if he had just sat there and looked over and said, 'Oh, my goodness, there's a fire and it's outside the city limits,' and done nothing, he probably would have been severely reprimanded by all of the citizens of the community and including his immediate supervisor, the councilmen and the mayor wondering, 'What's the Chief of Police doing?' when he's sitting around there.

"He went there. It looked like they needed more help. He tried to get the City to respond. I'm sure the City often responds in places like that outside of their jurisdiction as the County does, too. So, I'm not going to give much weight to that."

The essential issue of this case is the first issue: whether Van Buskirk met his burden of proof to be entitled to the receipt of Worker's Compensation benefits by virtue of the coronary attack which he sustained.

The applicable statute is § 27-12-603(b), W.S.1977:

" (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."

Appellant accurately recognized and defined the four requirements that must be met within the burden of proof devolving upon the employee in order to achieve a benefit award under that statute:

" ' (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.' " Nuanes v. State ex rel. Worker's Compensation Division, Wyo., 694 P.2d 86, 88 (1985), quoting from Claim of McCarley, Wyo., 590 P.2d 1333, 1335-1336 (1979).

Again, appellant properly and accurately further defines the particular issue requiring resolution in this case as whether requirement No. 1 was properly established by the trial proof. There is no question but that the onset of the heart-attack occurrence was related to the activities of the day by competent and realistic medical testimony so that the question of medical proof is not now before the court. See Matter of Injury to Taylor, Wyo., 718 P.2d 63 (1986); State ex rel. Worker's Compensation Division v. Kemp, Wyo., 711 P.2d 1142 (1986).

The volume of cases is extensive, as reflected by this third case in the last six months to appear before this court, and the decisional process can be divided as to cases subject to the law before the passage of Ch. 142, S.L. of Wyoming 1977, and the present law, wherein the change afforded was to differentiate from the earlier "employment stress clearly unusual to, or abnormal for, the individual employee in that particular employment" (emphasis added), and to substitute "clearly unusual to, or abnormal for, employees in that particular employment." (Emphasis added.)

The differentiation changed from the individualized test to the general test for those of similar employment engagement. See Comment, The Compensability of Cardiac Conditions Under Wyoming's Worker's Compensation: Health Insurance or Worker's Compensation, XX Land & Water L.Rev. 606 (1985), a comprehensive and thoughtful analysis co-authored by the present attorney for the division.

The course of the earlier cases included Mor, Inc. v. Haverlock, Wyo., 566 P.2d 219 (1977); In re Brannan's Claim, Wyo., 455 P.2d 241 (1969); Claim of Hill, Wyo., 451 P.2d 794 (1969); Claim of Vondra, Wyo., 448 P.2d 313 (1968).

The more recent course of cases involving the extraordinary exertion inquiry include Creek v. Town of Hulett, Wyo., 657 P.2d 353 (1983); Yost v. Wyoming State Treasurer ex rel. Wyoming Worker's Compensation Division, Wyo., 654 P.2d 137 (1982); Wyoming State Treasurer ex rel. Wyoming Worker's Compensation Division v. Schwilke, Wyo., 649 P.2d 218 (1982); Jim's Water Service v. Eayrs, Wyo., 590 P.2d 1346 (1979); Claim of McCarley, supra. Something less than consistency in result and concurrence with the statute is evidenced in these cases. See dissent of Justice Rooney in Yost v. Wyoming State Treasurer, supra. Cf. dissent of Justice Rose in Nuanes v. State ex rel. Wyoming Worker's Compensation Division, supra.

We concur with appellant, and so interpret the current case law, that the test which is classified in its brief as...