Yost v. Wyoming State Treasurer ex rel. Wyoming Worker's Compensation Div., 5721

• Decision Date: 02 December 1982
• Docket Number: No. 5721,5721
• Citation: 654 P.2d 137
• Parties: In the Matter of the Claims of Gloriane YOST and Scott Yost, Widow and Son of Gale A. Yost, Appellants (Claimants), v. WYOMING STATE TREASURER ex rel. WYOMING WORKER'S COMPENSATION DIVISION, Appellee (Objector-Defendant).
• Court: Wyoming Supreme Court

Page 137

654 P.2d 137

In the Matter of the Claims of Gloriane YOST and Scott Yost, Widow and Son of Gale A. Yost, Appellants (Claimants), v.WYOMING STATE TREASURER ex rel. WYOMING WORKER'S COMPENSATION DIVISION, Appellee (Objector-Defendant).

No. 5721.

Supreme Court of Wyoming.

Dec. 2, 1982.

R. Douglas Dumbrill of Hughes & Dumbrill, Sundance, for appellants.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Allen C. Johnson, Senior Asst. Atty. Gen., Carl Hildebrand, Asst. Atty. Gen., and Steven R. Czoschke, Legal Intern, Cheyenne, for appellee.

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

ROSE, Chief Justice.

The issue in this case asks whether the fatal heart attack suffered by worker Gale Allen Yost is compensable under the Wyoming Worker's Compensation Act, §§ 27-12-101 through 27-12-805, W.S.1977.We will hold that it was, thereby reversing the trial court.

FACTS

Gale Allen Yost was a truck driver who, during the period of time that he was employed by S & S Trucking, Inc., suffered a serious, nonfatal heart attack.The precise time or place of this first attack is not known, but the medical testimony was that it occurred two days to two weeks prior to death.

Subsequently, on August 12, 1981, Yost rode to work with Donald Collins and complained to him that he felt as though he had been up all night even though that was not the case.Mr. Yost began work at about 7:00 a.m., and throughout the morning his fellow workers noticed that he appeared sickly and was complaining that he did not feel well.Shortly after work began, Stanley Bevier loaded Yost's truck at the bentonite pit and it was then that Yost said to Bevier, "I ache all over.I just don't feel good."Yost thought he might be coming down with the flu.

Approximately one half hour or 45 minutes before his death, Yost's truck became stuck on the pile where bentonite was unloaded.While he waited for a tractor to push him out he sat in a truck with Mr. Coyle for approximately one half hour.Coyle testified that while they were waiting, Yost complained of heartburn and appeared pale.It was then that Yost asked Coyle for some Rolaids but Coyle did not have any.

At about 9:00 a.m., Gale Yost walked into the Colony Truck Stop, asked for something for an upset stomach and was given an antacid tablet.He took the tablet, sat down on a davenport and immediately slumped down, unconscious.He had no pulse or respiration, and all efforts to revive him failed.

At the trial, the uncontroverted expert testimony was that the cause of death was a complication of the heart attack Yost had suffered two days to two weeks earlier.Relying on the autopsy report by Dr. Bloemendaal, an expert pathologist, and the testimony of the witnesses about the work conditions and the sudden nature of the death, Dr. Said gave his opinion as follows:

" * * * I think that he had suffered the heart attack before, which I have stated could be two days to two weeks, and probably his size of the infarction increased because they mentioned in the autopsy he had an acute inflammatory reaction and this, of course, could be caused by the exertion, by the stress-contributing factors and so on.However those activities he had mostly provoked more demand to the heart, more oxygen demand, and just the artery could not deliver that demand, could not deliver adequate amount of oxygen.This caused arrhythmia and ventricular fibrillation and death, which just in a few minutes you will be gone."

Dr. Said further said:

" * * * [T]his extension of the heart and because of the exertion he had, because he should have been having bed rest, this was further demand to the oxygen for the myocardium, and he could not just deliver that oxygen and he collapsed."

Dr. Said stated the reason Yost's work activity was damaging:

"You see, that's the main thing, is just rest.It is absolutely essential to allow that area time because the other arteries have to carry the load of all the blood to the heart, you see.So if we make more active then the heart will demand more oxygen and the heart cannot carry further blood so he will go into failure, into complications."

Dr. Said went on to say:

"Well, physical exertion, the main thing it is increasing the demand on the heart, and in this particular case, which was critical, was rest, the reason because of the coronary artery occlusion, which was complete.Then the blood has to go through the other artery which was not narrowed to ten to thirty percent.So, he had really a very compromised heart, and he really had to rest, not to increase the demand to his heart."

Dr. Said also gave his opinion as to what is normal or usual activity for a person who has had a heart attack within the preceding two weeks by stating:

" * * * As I told you, this takes, the scar which forms in the heart, it takes about two months to heal, and there is absolutely no normal activity during that time, no matter even if it was the smallest heart attack, let alone if it is a big anterior with complications--probably takes longer."

It was Dr. Said's opinion that the heart attack Gale Yost suffered two days to two weeks before his death caused an occlusion of the right coronary artery.The two coronary arteries on the left side of the heart were previously narrowed by atherosclerosis.After the heart attack the arteries on the left were supplying the oxygen demand of the entire heart.This condition was described by the doctor as a "very compromised heart," requiring rest, oxygen and medication to avoid fatal arrhythmia.The effect of continued work was a very big factor in producing the arrhythmia that caused Yost's sudden death.

In sum, for purposes of this opinion, we have a truck driver with a serious heart attack two days to two weeks before a fatal attack which occurred while the deceased worker was discharging his truck-driving duties for his employer.Additionally, we have expert testimony to the effect that

(a) the continued work exertion after the first heart attack was a big factor in causing the second;

(b) that there is "no normal [work] activity" during the period immediately following the first heart attack "no matter even if it was the smallest heart attack, let alone if it is a big anterior with complications"(as was the case with Mr. Yost's first attack).

OPINION

The State candidly admits in argument that this appeal is brought so that we will have a vehicle with which to overrule our unanimous decision in Wyoming State Treasurer, ex rel. Wyoming Worker's Compensation Division v. Schwilke, Wyo., 649 P.2d 218(1982).

This we decline to do.We will reverse the decision of the district court in this case with recognition that the trial judge did not have the guidance of the Schwilke decision, supra, when he rendered his decision denying worker's compensation benefits to Yost's survivors although the State of Wyoming did have the benefit of that decision when the case was argued before this court.

The rule of Schwilke is good law, supported by modern worker's compensation authority and we will not upset it in a case that was argued less than six weeks after the publication of the Schwilke decision.

In Schwilke we had an almost identical set of facts to those we have here.If anything, the facts in this case are stronger and more clear-cut with respect to the application of the appropriate rule.

At the outset, the statute upon which the State relies in seeking denial of worker's compensation benefits is § 27-12-603(b), W.S.1977, which provides:

"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."(Emphasis added.)

It is said that there is no evidence that "causative exertion" occurred during a period of "employment stress" which was

" * * * clearly unusual to, or abnormal for, employees in that particular employment, * * *."§ 27-12-603(b), supra.

This argument would have us ignore or hold insufficient the doctor's testimony that once the first heart attack occurs, there is no such thing--for this individual--as "normal [work] activity," i.e.,

" * * * there is absolutely no normal [work] activity during that time, * * *."

In Schwilke we said, in response to the identical argument that the State makes here:

"Likewise, we are of the opinion that the circumstances of this case establish that the stressful work condition was unusual to, or abnormal for the deceased's employment.Notwithstanding the fact that the actual physical exertion performed by Mr. Schwilke was within the realm of his normal activity, the record reflects that prior to the performance of these tasks he had experienced heart trouble.Under such circumstances, the once normal activity of his work day indeed became very unusual and abnormal for Mr. Schwilke."(Emphasis added.)649 P.2d at 222.

We established this rule for Wyoming in heart-attack cases based on adequate and, we believe, the best reasoned authority.To start with, we were, in Schwilke, merely reiterating the same concept as that which we had previously recognized in Mor, Inc. v. Haverlock, Wyo., 566 P.2d 219, 222(1977), when we said:

"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...