This appeal arises under the Texas Workers’ Compensation Act of 1989 (1989 Act), TEX. REV. CIV. STAT. ANN. arts. 8308-1.01 through 11.10 (Vernon Supp. 1993). On June 8, 1993, a contested case hearing was held in (city), Texas, with (hearing officer) presiding. He determined that respondent’s (claimant) husband (decedent) incurred a compensable head injury that contributed to his death. Appellant (carrier) asserts that the evidence was insufficient to support various findings of fact, among them that decedent suffered serious head injuries and that the head injury contributed to death. Claimant states that the hearing officer was correct in his decision.
DECISION
Reversed and remanded.
At the hearing the issue was stated to be: whether the decedent suffered a compensable injury resulting in death; if not, whether claimant suffered a compensable heart attack within the provisions of Article 8308-4.15 of the 1989 Act.
Article 8308-6.42(c) of the 1989 Act states that the Appeals Panel “shall determine each issue on which review was requested.”
The Appeals Panel determines:
That there is not sufficient evidence to sustain the findings and conclusions that decedent’s head injuries contributed to his death.
That the alternative issue in regard to compensability of a heart attack was litigated at the hearing but findings as to specific criteria in Article 8308-4.15 of the 1989 Act were not made.
Decedent was 57 years old on (date of injury) and was employed as a police lieutenant for the sheriff’s office. On the day in question, he went to work at approximately 7:30 a.m. to attend a meeting. At that meeting, the claimant and the sheriff both testified that a newspaper article detailing certain information about narcotics investigations was upsetting to several personnel, with decedent being one of those upset. Decedent also “moved some things around” that morning at his office.
Claimant testified that decedent was in good health and had recently had a physical examination for a back problem which found no cardiac problem. She further stated that decedent was approximately six feet two inches tall and weighed 190 pounds; he had no history of heart trouble. He had only complained to her of indigestion earlier the day of the accident.
A statement by (EP) indicated that he was with the TH Patrol and had been in the vicinity of decedent as he escorted the local high school band late in the afternoon. He observed decedent’s car leave the road and accelerate through a ditch and through fences; EP heard a crash; the car had “crashed violently head on into a tree.” When he got to decedent, he found no pulse or breathing. He initiated CPR. Decedent vomited blood, and EP saw blood on decedent’s head. EP was of the opinion that decedent had “serious head injuries.” He thought the jaw was either broken or dislocated.
(SW), whose statement appears to indicate that he is with the fire department, said that when he got to decedent, he was not breathing and had no pulse. He commented on the decedent’s loose teeth and swelling jaw.
Two emergency medical technicians saw decedent at the local hospital prior to the time he was evacuated for treatment to (city). (RF) stated that decedent was on the ventilator at the local hospital. She observed a deep laceration on the area of the right cheek. She also saw bruising behind the ears, discoloration around the eyes, and “subcutaneous emphesema” (air) in the neck and shoulder area. (SB) stated that she observed abrasions to decedent’s head, a laceration on the right cheek, bruising behind the ears, and a laceration of the palate. She added that decedent had no known heart problems.
The sheriff, (Mr. H), said that decedent was not dead at the scene. He recalled remarks by (Dr. C) to the effect that decedent’s injuries prevented treatment “the way he wanted to.”
Two radiologic reports from the hospital in (city) indicate that no active intrathoracic disease was identified with one saying “minimal central interstitial vascular prominence.” An echocardiogram showed no gross dysfunction in the heart valves, but also stated that the inferior vena cava was not collapsing with respiratory change.
Two personnel with the sheriff’s office gave statements; (HA) said that decedent did not look well the day of the accident; (SH) said the decedent had had indigestion for three days. (JJ) who works in a local store said that decedent was in the store the afternoon of the accident and said “darn, I feel like I’m having a heart attack. Do you have any Maalox?” She said he later left to go escort the band.
(R and LW) gave a statement in which they said that they heard a doctor (unidentified) say that there was “severe swelling on (decedent’s) brain which was restricting circulation.” The doctor said he could not treat it because the medication might cause a cardiac arrest.
The last evidence introduced by claimant was a short statement of Dr. C, dated May 27, 1993, which said that the diagnosis of coronary artery disease is an assumed diagnosis; no angiographic documentation of coronary artery disease “was present.”
The carrier introduced several reports of Dr. C, a consultation by (Dr. S), and an opinion by (Dr. D), along with the death certificate.
Dr. C’s letterhead indicates that he is a cardiologist. His December 15, 1992 letter to the carrier indicates that decedent did not have a broken jaw; he did have a one and one-half inch laceration on the right jaw. He stated that the only identified trauma to the head was the jaw laceration, acknowledging that testing for other trauma was limited by the grave condition of decedent.
Dr. C noted, upon decedent’s transfer to (city) and his care on (date of injury), that the present illness was cardiac in nature. He did not mention that bleeding had been excessive, nor refer to any efforts having been necessary to stop bleeding. Blood pressure was 80/40. His examination of the head showed a “2-inch gash” over the right jaw, blood slowly oozing from the nose and “the teeth are intact.” While the x-ray showed no cardiomegaly, the EKG was “remarkable for premature contractions, sinus tachycardia, large extensive anterolateral and inferior Q waves with acute anterior ST elevation consistent with acute anterolateral and apical myocardial infarction.” At this time Dr. C listed decedent’s problems as:
1.Status post acute anterior myocardial infarction, very large, extensive.
2.Sudden cardiac death, primary ventricular fibrillation, secondary to anterior myocardial infarction.
3.Probable anoxic (lack of oxygen) cerebral damage, appears severe with minimal brain function detectable at present.
4.Status post motor vehicle accident with facial trauma, large laceration to right lower chin, no obvious fractures of the skull, neck or basilar skull are detectable.
5.Subcutaneous air in the neck. . . .
6.Multiple metabolic abnormalities. . . .
7.Progressive hypotension. . . .
The next day, October 31st, Dr. C noted in his assessment of the decedent:
1.Status post sudden cardiac death.
2.Severe cerebral anoxic encephalopathy (degenerative disease), minimal improvement in overall state.
3.Extensive anterior apical and lateral myocardial infarction.
4.Probable cardiogenic shock.
5.Acute renal insufficiency, secondary to prolonged hypotension.
6.Subcutaneous air in neck, not causing a problem, not worsening. (emphasis added)
7.Facial and head trauma, no obvious C-spine damage. ENT to evaluate today.
8.Multiple metabolic abnormalities.
9.Ventricular arrhythmias.
Between October 30th and October 31st, Dr. C indicates what had been “problem 4” became “assessment 7” (facial and head trauma). When such trauma was assessed as #7 on October 31st, it was listed after the subcutaneous air, assessment 6, that was “not causing a problem.” While certain testing was not performed, the above do not indicate that problems were being encountered in areas other than those affected by the heart condition.
Dr. S, in his consult, looked at neurologic matters in regard to decedent. He lists his impression as: (1) “acute cardiopulmonary arrest secondary to myocardial infarction and ventricular fibrillation;” (2) “Severe anoxic encephalopathy secondary to #1.” (emphasis added); and (3) “Cervical and subcutaneous emphysema and possible facial trauma, ? significance. . . .” He added that tests such as a “CT of the head” and EEG “might be considered,” but “they are somewhat academic at this time. . . .”
Dr. D, who is not identified as to background other than listing himself as an MD, apparently in providing an opinion for the carrier, said that the EKG showed myocardial infarction. He attributed death to the heart problem or secondary effects of it.
The hearing officer is the sole judge of the weight and credibility of the evidence. See Article 8308-6.34(e) of the 1989 Act. The Appeals Panel will not reverse on a determination of fact unless the finding, conclusion, or decision is against the great weight and preponderance of the evidence. See Texas Workers’ Compensation Commission Appeal No. 93437, decided July 16, 1993, and In re Kings’ Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
While the 1989 Act has changed the evaluation of heart attack cases in determining compensability, the case on appeal must be considered as one of whether causation has been shown in regard to “head injuries” as contributing to decedent’s death. (This case is distinguished from Texas Workers’ Compensation Commission Appeal No. 92540, decided November 19, 1992, in which a claimant undergoing back surgery for a compensable injury suffered a heart attack.) Several people testified as to bruises, blood, vomiting, emphysema, abrasions, a laceration (one stated there was also a laceration of the palate). One couple stated that a doctor referred to a problem in treating swelling of the brain, but no doctor’s record at the time refers to such a problem much less that such limitation of treatment contributed to the death. Statements of three doctors were before the hearing officer and none indicated that head injuries were even a possible contributing cause of death. Dr. C’s reports contradict some witness statements in that he reported that decedent’s jaw was not broken and his teeth were intact. The court in Charter Oak Fire Insurance Co. v. (Mr M), 733 S.W.2d 273 (Tex. App.-El Paso 1987, no writ) considered a jury verdict for (Mr M) who ran off the road in a motor vehicle, hitting a post and bruising his head; he died the next day. The evidence showed that the day before the motor vehicle accident, (Mr M) had hit his head on a metal object when a wrench he was using slipped; it brought tears to his eyes. The next day (the day of the accident) (Mr M) was not acting normal. After his motor vehicle hit the post, he was treated and released. He then died of a brain hemorrhage. The only doctor who testified said that a small bump could trigger hemorrhage, but he did not think this hemorrhage was work related because he thought it to be several days old. The case also included reference to cirrhosis of the liver. The court said that the claimant had “failed to present sufficient evidence in the trial to support the jury’s finding that the injury suffered by (Mr M) was suffered on the job and was a producing cause of his death,” when it reversed and remanded.
A case dealing with causation in regard to a heart attack was Insurance Company of North America v. Kneten, 440 S.W.2d 52 (Tex. 1969). This court allowed a jury verdict for claimant to stand when a doctor testified that there was a “strong possibility” that an electric shock triggered a heart attack. In discussing the need for showing causation by probability, the court observed that in this case it could find probability from all the evidence, which included: (1) a specific event (the shock); (2) a prompt onset of symptoms; and (3) medical evidence that said the shock “could” trigger the attack–the last element enabled the jury verdict not to be “conjecture”.
In Webb v. Western Casualty & Surety Co., 517 S.W.2d 529 (Tex. 1974), the court considered a worker who had used a wheelbarrow with a 150 pound load just before having pain in his chest, and later a heart attack. This case acknowledged that “possibility” could become a “probability” in the right circumstances, but it did not become such in regard to the claimant’s history of heart disease as being a causative factor. It added that “causal connection must be proved upon the strength of reasonable probability.”
In the case before us on appeal, there is no medical evidence that the head injuries “could,” let alone probably did, contribute to the death of decedent. Unlike the (Mr M) case, supra, the medical evidence in this case even states what the cause of death was–the heart attacks. No secondary cause relating to head trauma is mentioned anywhere. While causation might be proved in certain traumatic head injury cases without any medical evidence, the facts before us do not indicate that these injuries are in that category. Death would have to be logically traceable to the head injury in question, within the common experience and knowledge of the fact finder, to determine causation without medical evidence. In this case, there was no report of excessive bleeding; while some statements described the trauma as “serious”, bruising, lacerations and emphysema are the injuries primarily described that were not contradicted by physician’s reports. Also, no fractures were observable. At no time is there evidence that anyone (lay or medical) considered it essential to treat the head injuries as life threatening. While experts’ opinions and deductions can be disregarded by the finder of fact (See Gregory v. TEIA, 530 S.W.2d 105 (Tex. 1975) and Jackson v. Killough, 615 S.W.2d 274 (Tex. Civ. App.- Dallas 1981, no writ), the Gregory opinion also indicates the “expert witness’s testimony must be taken as true insofar as it establishes facts,. . . .” It is true that certain tests were not accomplished to pinpoint the exact nature of the head injuries, but the medical evidence reflects that there were no indications the head injuries were causing any problems that needed to be addressed in regard to saving a life. As stated, not only is this case one in which evidence of causation would be exceedingly difficult to show without any medical evidence, there is extensive medical evidence indicating the cause of death was the heart attack, and that evidence did not indicate that head injuries contributed thereto.
Determining that the findings, conclusions, and decision, which indicate head injuries were a contributing cause of death, are against the great weight and preponderance of the evidence, we reverse and remand. Since the issue, as stated, called for an evaluation of the heart condition under Article 8308-4.15 if another injury was not found to be compensable resulting in death, the appropriate findings in regard to criteria in Article 8308-4.15 should be made. The hearing officer may further develop the evidence, as he deems appropriate and necessary or make findings, conclusions and a decision based on the evidence of record. Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers’ Compensation Commission’s division of hearings, pursuant to Article 8308-5.41. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Joe Sebesta – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Gary L. Kilgore – Appeals Judge