A contested case hearing was held on February 13, 1992. He determined the deceased suffered a heart attack in the course and scope of his employment and that it was a compensable injury under the Texas Workers' Compensation Act, TEX. REV. CIV. STAT. ANN., arts. 8308-1.01 et seq (Vernon Supp 1992) (1989 Act). The appellant contests several of the hearing officer's findings of fact and his conclusion that the heart attack is compensable, urging that there is no evidence or insufficient evidence to support them.
Finding a potentially important omission in the tape recording of the proceedings and the significant likelihood of an incorrect application of the provisions of Article 8308- 4.15, we reverse and remand this case.
The deceased worked as an operator of heavy equipment for the employer for over 17 years. On . he was scheduled to work at a construction site operating a "loader," and was telephonically instructed by a (Mr. R) to go and get the "loader" which was parked some 100 yards from the road. It had been raining for some period of time and the ground was very muddy. After giving the deceased the instructions to get the "loader," Mr. R drove his 4-wheel drive vehicle to the same area. When he arrived, he found the deceased lying face down on the ground near the "loader." Mr. R called for an ambulance on a portable phone and went to where the deceased was lying. He observed blood on the ground and in checking the deceased was unable to detect a pulse. He turned the deceased over and noticed a gash in his forehead close to his eyebrow and noticed some blood on a portion of the "loader." The deceased's face was in the mud which would have affected his breathing. Mr. R also testified the deceased had mentioned breathing problems and chest pains before and would be off work on occasion.
A paramedic arrived at the scene shortly thereafter and observed an extensive amount of both venous and arterial bleeding from the deceased's forehead and bridge of his nose. Attempts at resuscitation were unsuccessful and the deceased was taken to a hospital. The paramedic stated that he and other rescue workers had to park some 100 yards from where the deceased was located because of the deep mud.
There was evidence that the mud was two inches to "ankle" deep, that the deceased had had to walk through the mud to get to the "loader," that it was physically more stressful to walk through the mud than normal walking, and that driving a "loader" was not a physically stressful activity because these machines have power steering, air brakes and automatic transmissions.
The respondent produced a marriage license indicating she married the deceased in 1987, and that she and the deceased had lived together as man and wife from the date of their marriage until his death. She also testified that the deceased's only child was a son who was 24 or 25, that the deceased's son was married, and that he was not dependent on the deceased in any way in 1991. According to the respondent, the deceased had high blood pressure problems but they were being controlled by medication and that none of his medical problems kept him from working. She agreed that the deceased was 5 feet 10 inches tall, weighed 298 pounds on the date of his death and smoked approximately two packs of cigarettes a day.
Medical evidence from two doctors was admitted. Dr. M, a forensic pathologist with considerable experience as a medical examiner, testified for the respondent. Dr. B, the Chief Medical Examiner for (City 1) County, presented evidence through an oral deposition offered by the appellant.
Dr. M testified that the deceased had, by clinical history, a markedly weakened cardiovascular system manifested by known high blood pressure and a very enlarged heart. He stated that the deceased's walking through sticky, thick mud on the day of his death was "capable of having exerted him in a cardiovascular respect and exceed his limit or caused him to slip and fall, either was contributing significantly to his demise." Unfortunately, when asked his opinion, based upon assumptions set forth by respondent's counsel, as to whether the walking through the mud at work rather than the natural progression of the preexisting heart condition or disease, was a substantial contributing factor of the death of the deceased, the tape recording comes to an end and the questioning in the next tape is off in another area. The answer to the question and any follow-on questions are not recorded.
In other areas of Dr. M's testimony he acknowledged he was not aware of the medical report (misidentified in the hearing as Carriers Exhibit B rather than C) preceding the deceased's death by approximately a month which indicated the deceased was experiencing abdominal bloating and was seen in the emergency room in the (City 1) County Hospital. The reports indicated, inter alia, chest cardiomegaly (enlarged heart) and congestive heart failure with evidence of fluid collecting in the lungs and soft tissue. The records also indicate the deceased was given warning for shortness of breath and advised to take medications. Not being aware of these records did not change his opinion, but he indicated his agreement with the statement that the deceased was a candidate to have a heart attack at any time. Dr. M also stated he did not know if or how often the deceased walked through mud to get to his equipment and that such activity would have a different significance than if it just happened that one day. However, the basis of his conclusion is that the deceased walked a long distance through mud on the day he died and there is a "compelling association between this exertion on this occasion and his death." He further stated he could not give an exact percentage as to how much the deceased's heart condition contributed to his death. He also indicated that he was not familiar with the "impairment ratings" and could not give a meaningful assessment of any impairment rating prior to the deceased's death. He stated that the heart disease was the cause of the death and was, of course, a substantial contributing cause. However, he was of the opinion that a very significant factor was that the disease was made worse, exacerbated, precipitated or incited by the exertion on the occasion in question, and that if the deceased "did indeed walk through the mud, I believe that it was" a substantial contributing factor.
The conclusion set forth in Dr. B's autopsy report states that:
"It is my opinion that [deceased] died as a result of hypertensive cardiovascular disease. Investigation indicates that the deceased was found collapsed adjacent to machinery at work. A blood stain was reportedly found near the rear end of this machinery. Although blunt force injuries are present, it is my opinion that the deceased suffered a cardiac dysrhythmia due to his hypertensive cardiovascular disease and fell onto the machinery prior to striking the ground. There are no rapidly lethal injuries. In my opinion these injuries did not contribute to his death."
Dr. B testified that in his opinion the deceased died from his heart disease and, although he did not have an opinion on whether or not he would have died that morning if he had not gone to work, the deceased had "disease that certainly he could have died at home, but obviously he died at work. Whether the walking through the mud is what pushed him over is--it's possible. It's possible that he could have had a lethal cardiac event at home, as well." He also stated that walking can stimulate the heart and put stress on the heart.
On cross-examination, Dr. B indicated that the deceased had history of heart disease going back to 1983 and that with his condition he would have lesser ability to exert himself. He stated that without the heart disease, "his death would not have occurred, in my opinion." In answer to a question as to whether or not plodding through foot deep mud one hundred yards would hasten cardiac dysrhythmia in a person with extensive heart disease such as found in the deceased, Dr. B stated "it's certainly possible that it could. You know, I mean, if it increases the stress on someone who's got more disease than (sic) anything that increases stress, potentially it can do that." He also opined that walking through two inches of mud would require less energy or demand on the heart.
Dr. B testified that the deceased's coronary arteries were fine but that his entire heart muscle mass was so large that he was having trouble supplying it. The deceased's heart weighed 820 grams which would be considered markedly enlarged. The upper degree of normal in a typical male would be about 350 grams. The fact that the deceased was obese could have put further strain on his heart because he would have a greater surface area and greater body mass to supply with blood.
The evidence at the hearing did not indicate whether walking through muddy conditions or working in inclement weather is unusual in the deceased's line of work, or if the deceased experienced such conditions frequently or intermittently as a regular part of his work. It is clear that it was muddy on the date of his death.
The findings of fact and conclusion which are contested by the appellant are:
FINDINGS OF FACT
1. Claimant was employed by Employer as a loader operator on . and at all times pertinent to this claim.
2. On . at approximately 7:00 a.m., while working for Employer, [deceased] walked through deep mud for approximately 100 yards.
3. Walking through deep mud for 100 yards was physically more stressful than [deceased's] normal work-related activity of operating a loader.
4. Immediately after walking through deep mud for approximately 100 yards [deceased] suffered a heart attack.
5. A substantial contributing factor of [deceased's] heart attack was the stress placed on his heart by the work-related activity of walking through deep mud for approximately 100 yards on . at about 7:00 a.m.
6. [Deceased's] death was caused by his heart attack.
CONCLUSIONS OF LAW
2.[Deceased's] heart attack is compensable under section 4.15 of the Texas Workers' Compensation Act.
We find from our review of the record in this case that there is sufficient evidence to establish the contested Findings of Fact Nos. 1, 5, 7, 8, and 9. We note that the hearing officer uses the term "deep" mud in his various findings. We accept that he is applying this term to the conditions established by the greater weight of the evidence; two inches to ankle deep mud. With regard to Finding No. 6, the evidence of record does not establish the normal work-related activity of the deceased or whether or not the deceased experienced muddy conditions regularly, occasionally, or at all in his work-related activity. While we do find evidence to support the stated Finding of Fact No. 8, this finding, in view of the absence of any indication that the effect of any stress on the deceased related to walking in mud was weighed against or juxtaposed with the severe heart disease as mandated under Article 8308-4.15, requires corrective action.
Initially, we determine that this case is appropriately considered within the ambit of Article 8308-4.15 relating to heart attacks. The medical evidence establishes that this is not a case of myocardial infarction but is rather a case concerning heart arrhythmia or irregular heart beat resulting from the deceased's hypertensive cardiovascular disease. Both of the doctors testifying indicated that what occurred in the deceased is a "heart attack" in the broader sense. Recognizing that "heart attack" is a non-medical term and citing Texas case authority, we determined that situations analogous to conditions as presented in this case fall within the concept of heart attack as provided in Article 8308-4.15. Texas Workers' Compensation Commission Appeal No. 91031, decided October 24, 1991.
Under the provisions of Article 8308-4.15, a heart attack is compensable if, inter alia, "(2) the preponderance of the medical evidence regarding the attack indicates that the employee's work rather than the natural progression of a preexisting heart condition or disease was a substantial contributing factor of the attack; . . ." It is the apparent failure to correctly apply this provision, together with the omission from the record pointed out above, that causes us to reverse and remand.
As we stated in our opinion in Appeal No. 91009 (Texas Workers' Compensation Commission Appeal No. 91009, decided September 4, 1991), the provision of the statute set out above requires a comparison or weighing between the conditions leading to the heart attack. It is not enough, as we view the legislative language, to show by some evidence that some work-related stress was a substantial contributing factor of the attack. The preponderance of the medical evidence regarding the attack must indicate that the work rather than the natural progression of a preexisting heart condition or disease was a substantial contributing factor of the attack. By its very terms, Article 8308-4.15 requires this weighing or comparison. See Texas Workers' Compensation Commission Appeal No. 91046, decided December 2, 1991. The term "rather than," it is suggested in 1 Montford, Barber, Duncan, A Guide to Texas Workers' Comp Reform, Sec. 4A 15, page 4-78, (1991), can be read as "as opposed to." In a footnote on page 4-78 it is stated that "[t]his requirement places the burden of proof on the claimant to establish within reasonable medical probability that the work was a substantial contributing factor as opposed to a preexisting heart condition.
We do not find in the hearing officer's decision in this case any indication that this provision of Article 8308-4.15(2) was properly applied. This is particularly so where there was considerable evidence of a severe underlying heart condition or disease; that the heart disease was the cause of the death; and, that an attack would not have occurred but for the severe heart disease. The stress of walking in mud for 100 yards at an unknown pace and in an undetermined fashion and whether it was something done with any recurrence must be juxtaposed with the obviously severe heart disease present in the deceased. To sustain the award of benefits under the 1989 Compensation Act, the work-related stress must, in comparing the factors leading to a heart attack, outweigh the preexisting heart condition. It appears to us that the hearing officer determined the 1989 Act was satisfied merely by a determination that work-related stress was a substantial contributing factor.
The decision is reversed and the case remanded for completion of the lapse in the electronic recording as set forth above and for reconsideration not inconsistent with this opinion.
Stark O. Sanders, Jr. Chief
Susan M. Kelley
Philip F. O'Neill