Wyoming State Treasurer ex rel. Wyoming Worker's Compensation Div. v. Schwilke on Behalf of Schwilke

Decision Date06 August 1982
Docket NumberNo. 5690,5690
Citation649 P.2d 218
PartiesWYOMING STATE TREASURER, ex rel. WYOMING WORKER'S COMPENSATION DIVISION, Appellant (Objector-Defendant) Burch Trucking, Inc., (Defendant-Employer), v. Denise SCHWILKE, on Behalf of Shelby SCHWILKE, Deceased, Appellee (Claimant-Employee).
CourtWyoming Supreme Court

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Allen C. Johnson, Senior Asst. Atty. Gen., and Carl Hildebrand, Asst. Atty. Gen., Cheyenne, for appellant.

Burton W. Guetz, Casper, for appellee.

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

ROSE, Chief Justice.

This is an appeal from an order of the district court awarding the appellee widow-and-children benefits under the Wyoming Worker's Compensation Act. In its appeal, 1 the State argues that the trial judge was without authority to make the award because the criteria of § 27-12-603(b), W.S.1977 have not been satisfied. 2

The State Treasurer argues that the evidence introduced by Mrs. Schwilke was insufficient to establish that her husband's heart attack was directly caused by exertion or stress clearly unusual to or abnormal for workers in that employment.

We find that the evidence introduced in the trial court was more than adequate to support the award and will affirm.

FACTS

On March 14, 1981 appellee Denise Schwilke's husband, Shelby Albert Schwilke, died on the jobsite as a result of a severe heart attack. At the time, Mr. Schwilke was 37 years old and was employed as a truck driver for Burch Trucking, Incorporated. Just prior to his death the deceased had loaded some oilfield equipment onto his truck during which time he had complained of pain and mentioned to a companion that he thought he had suffered a heart attack the previous night. This person suggested that Schwilke obtain medical attention, to which Mr. Schwilke replied, "truck drivers don't have time to go to a doctor." A few minutes later Mr. Schwilke met the same person at a nearby office, at which time Schwilke fell to the floor, expiring almost instantaneously.

Appellee Denise Schwilke brought an action seeking widow's and children's benefits under the Wyoming Worker's Compensation Act. The employer, Burch Trucking, Incorporated, contested the claim on the grounds that Shelby Schwilke's fatal coronary attack was not compensable under § 27-12-603(b), W.S.1977.

A hearing was held February 17, 1982, during which the appellee introduced the testimony of Dr. Allan L. Mattern. Dr. Mattern testified that in his opinion the deceased had suffered a myocardial infarction sometime within the 24-hour period preceding his death and that the physical exertion which occurred just prior to death was "the most likely" circumstance which actually caused the event. The doctor also expressed the opinion that physical exertion, mental or emotional stress and smoking are also factors affecting the likelihood of heart disease or heart attacks. This evidence had reference to Denise Schwilke's previous testimony that her husband had been under excessive stress for several weeks preceding his death, which stress had been occasioned by mechanical difficulties he had experienced with his truck together with increased work schedules. 3 In concluding, Dr. Mattern expressed an opinion that these stress conditions, together with the driving activity of the deceased, could have contributed to the attack but the doctor believed that the physical exertion attendant upon the loading of the truck just prior to death was the likely immediate causative incident.

The deceased's employer, Jim Burch, testified that the activities undertaken by Shelby Schwilke prior to his death were in no sense unusual or abnormal. He also said that he was not aware of any personal or job-related problems which might have been bothering Mr. Schwilke.

Following his review of the evidence, the trial judge, in a letter opinion filed on February 24, 1982, concluded that the appellee's claim should be granted. It was his decision that the medical testimony was sufficient to establish that the lifting and booming down of the equipment on March 14, 1981 was a cause of the deceased's attack and the deceased's continued physical exertion after developing heart-attack symptoms was such an unusual, stressful work condition as is contemplated by § 27-12-603(b), supra n.2.

DOES THE EVIDENCE ESTABLISH A COMPENSABLE INJURY UNDER § 27-12-603(b)?

As noted previously, § 27-12-603(b) outlines the criteria according to which an employee or his dependents can receive compensation for a work-related coronary condition. To paraphrase its provisions, the section requires that, before compensation will be authorized, the employee must satisfactorily show a direct connection between the cardiac circumstance and the work condition and even then, the compensation will not be forthcoming unless it is further established that the causative exertion amounts to an unusual or abnormally stressful work condition. Additionally, it must be shown that the cardiac condition manifested itself within four hours of the causative exertion. See § 27-12-603(b), supra n.2. Against these requirements, we must determine whether the record substantiates the award granted to the appellee in this case.

On several previous occasions we have been faced with questions similar to the one posed by the appellant here. In discussing these questions previously we have established rules of law concerning recovery of worker's compensation benefits for coronary conditions, which rules are applicable to the facts here.

In Claim of Vondra, Wyo., 448 P.2d 313 (1968), we upheld an award to an injured worker who had suffered a myocardial infarction while lifting a heavy piece of sheet metal at his place of employment. In that case, the medical expert testified that in his opinion the employee's act of lifting the metal was a causative factor precipitating the attack. Id. at 315. We noted in that opinion the difficulties which a court encounters when faced with heart-attack claims under the Wyoming Worker's Compensation Act:

" * * * In any event, there can be little doubt that the difficulties encountered by courts in their effort to determine whether an accident has been the cause of a worker's heart attack has been responsible for the rule that mere assertion of a reasonably probable contributory work connection with a heart attack by a medical witness cannot justify a compensation award and instead the facts in their totality must demonstrate causality by the greater weight of credible evidence. * * * " 448 P.2d at 317.

We also continued in this vein by concluding:

"In view of the matters discussed herein, we think that under any reasonable view the burden of the trial court in determining the causal relationship between a heart injury of a workman and his employment is most difficult. Certainly he cannot be satisfied in discharging this upon less than the preponderance of believable evidence that the work effort contributed in a material degree to the precipitation, aggravation, or acceleration of the existing disease." (Emphasis added.) 448 P.2d at 318.

Applying the rules discussed, we concluded that the record reflected sufficient evidence to permit recovery, given the fact that it is the duty of the trial judge to weigh the expert testimony, and that his conclusions in this respect are not open to review. Thus, although the court had some doubt as to quality and character of the medical testimony, the award was upheld.

Next, in Mor, Inc. v. Haverlock, Wyo., 566 P.2d 219 (1977) we upheld an award of compensation to an employee where he had suffered a myocardial infarction while carrying heavy buckets of cement up flights of stairs at a jobsite. In that case, we determined that former § 27-361(b), W.S.1957, C.1967, 1975 Cum.Supp., 4 adopted the "unusual-exertion rule" as a requirement for recovering worker's compensation benefits for employment-related coronary conditions. 566 P.2d at 221. We then discussed the application of such a test when we said:

"Whether the exertion of work was clearly unusual to, or abnormal for, the individual worker in his particular employment is a question of fact to be determined by the trial court, and its findings will be upheld where supported by substantial competent evidence. See Lentz v. City of Marion, 222 Kan. 169, 563 P.2d 456, 460; and Clayton v. Lease-Way Transportation Corp., Fla., 236 So.2d 765, 766. Cf. Williams v. Northern Development Co., Wyo., 425 P.2d 594; White v. Maverick Production Co., 63 Wyo. 452, 182 P.2d 818. It should be emphasized, however, that the exertion in question must only be unusual to the employee-it need not necessarily be unusual to others engaged in the same employment. Herbert v. Sharp Brothers Contracting Co., Mo.App., 467 S.W.2d 105, 108. See also, Commercial Transfer Company v. Quasny, 245 Md. 572, 227 A.2d 20, 24. To sustain his burden of proof, as to legal causation, the statute requires that the employee show that the causative exertion was clearly something beyond his normal routine-something more than the worker's usual work." (Emphasis added.) 566 P.2d at 222.

Upon reviewing the record, we held that the evidence was clearly adequate to support a finding that the employee had suffered his attack under unusual circumstances since he was not normally responsible for both mixing and carrying the cement buckets. The tasks had normally been done with the assistance of hoists and other helpers.

We upheld an award under § 27-12-603(b) in Jim's Water Service v. Eayrs, Wyo., 590 P.2d 1346 (1979), where the employee had died as a result of a heart attack he suffered while attempting to free his truck from a snowbank. We were concerned with the medical testimony establishing the required causative link, but, in holding that it was sufficient to permit an award, we s...

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