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 1992). On April 9, 1992, a contested case hearing was held in (city), Texas, with (hearing officer) presiding. He determined that claimant, appellant herein, did not suffer a compensable heart attack on (date of injury). Appellant states on appeal that the physical demands placed on him because of the absence of other employees caused the attack and that the doctors involved do not know all the physical work he did that day.
DECISION
Finding that the decision is adequately supported by the evidence, we affirm.
Appellant was a manager in a fast food restaurant. He had worked for the particular chain since July 1989 and prior to that time had worked for the same chain for seven years ending in 1979. In the months prior to (date of injury), when appellant had his heart attack at work, the number of his assistants and other workers was significantly reduced. In answer to a question on cross-examination, appellant stated that the overwork and stress from October 1990 to the date of injury caused the heart attack.
Appellant said that as a manager, he was required to oversee the operation, to order ingredients and supplies, to schedule personnel, etc. He added later that his job was to oversee and to step in and help out when there was a bottleneck in operations. He also stated that during a surge the manager helps out where needed and could help the cook prepare food. During the period from October to February, he worked many 80 hour weeks and only had Christmas day off. With no regular assistants, he had to watch the whole job, but also had to increase his assistance on the customer service line because of shortages of personnel.
He described himself as 45 years old at the time of the attack. He stood six feet tall and weighed 255 pounds. He testified that he had no history of heart trouble but has had an irregular heart beat. He never smoked. His father had had two heart attacks by the time he was 62 years old.
On (date of injury), he came to work at 7:30 a.m. He said he was not doing his “normal” job when he first felt pain, described as similar to indigestion, while making biscuits. He ignored the pain. His operation was visited that day by senior officials of the chain. His location opened at 10:30 and business increased from 11:00 to 12:00, although he said his operation did approximately 70% of its daily business in the evening hours. At approximately noon, he was in such pain that an ambulance was called. The officials had just departed.
Appellant described the time just before noon as being hectic. He and two others were doing the work of six people. He said he was on the run from the front to the back, to a drive-in window, to the walk-in refrigerator, bagging and reaching for this and that, operating the cash register and then starting all over again. He could feel pain but did not want to acknowledge that to the visiting officials. He was wet from sweat. He did not refer to any single event as causing pain except for his earlier statement that he first felt pain while making biscuits. He did agree that the biscuit making had occurred before the restaurant opened so that he was not responding to various customer demands at that time; he was rushing to get things done, though. He characterized the physical demands normally made of him on a scale of 1 to 10 as about 4, but said on (date of injury), physical demands were a 10 on the scale of 1 to 10.
The hearing officer was accurate in commenting on the sparseness of medical evidence offered. No inpatient records were offered although appellant stated that he had heart surgery as a result of this attack. Respondent offered one short letter from ( Dr. L) to appellant dated February 27, 1991, which said that “severe overwork . . may have been a factor.” Appellant introduced three short letters from (Dr. L) dated July 17, November 4, 1991 and January 10, 1992. These discussed the fact that he should decrease the stress or psychological stress at work as he recovered from the (date of injury) heart attack. Appellant’s other medical evidence consisted of one letter from (Dr. H) and one letter from (Dr. M), who practice together. These two letters are more relevant to the resolution of this dispute, and will be quoted to some extent. Unfortunately for appellant, neither is sufficient to meet the criteria of Article 8308-4.15 (2) of the 1989 Act which reads as follows:
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;
Dr. H said in a letter dated September 5, 1991:
(Appellant) presented on (date of injury) with an acute onset of chest pain that started while he was at work. As you know, multiple factors are involved in the etiology of coronary artery disease including stress, family history, diabetes mellitus, etc. (Appellant) had more than one factor involved. There is no way I can quantitate how much each factor contributed to his present condition and the myocardial infarction.
Dr. M said in a letter dated June 3, 1991:
Currently I am in charge of (appellant’s) care. He was felt to have suffered a non-Q wave myocardial infarction. Subsequently, he underwent angioplasty. Following the angioplasty, the vessel had closed, requiring urgent bypass surgery . . . by (Dr. R). (Appellant) . . . had a significant number of changes . . . in his work place . . . which he felt increased the amount of stress as well as physical efforts required on his part. The extent and/or contribution of the stress placed on the patient may have had some relationship with his heart attack. However, what role that actually played is pure speculation. I do not feel that I can give an adequate evaluation of this, as I did not care for (appellant) during the time when he presented with his myocardial infarction.
Appellant’s other evidence consisted of statements of individuals as to how hard he worked and how understaffed he was, along with various charts which showed manning levels at different times and work stations in the restaurant at which appellant worked. There was no issue as to how long and hard appellant had to work.
Respondent cites Texas Workers’ Compensation Commission Appeal No. 91061 (Docket No. redacted) decided December 9, 1991, authored by the Chief Judge. That opinion has similarities in regard to stress and the early morning initial indication of pain subsequently followed by an attack that was not tied to a specific event. Contrary to the case now on appeal, Appeal No 91061 had significant evidence as to pre-existing disease in the form of stenosis of several arteries.
Respondent also cites North River Ins. Co. of N.J. v. Gray, 765 S.W.2d 862 (Tex. App.-Austin 1989, writ denied). The appellate court reversed and rendered a jury verdict for claimant. Claimant had undergone a period of hard work and stress in reopening a facility prior to his heart attack. The night before his heart attack, he had worked until midnight. He started work the day of the attack at 6:00 a.m. and worked at a microfiche except for one period during which he helped move some supplies around. The court in Gray recited the need for an “undesigned, untoward event traceable to a definite time, place and cause.” It compared Gray’s circumstances to those in Transport Ins. Co. v. McCully, 481 S.W.2d 948 (Tex. Civ. App.-Austin 1972, writ ref’d n.r.e.). In the McCully case recovery for a heart attack had been allowed for a customer service agent who within a two hour period had loaded luggage, done other work, felt initial pain, and then loaded a cart with luggage and pulled it outside the terminal. The court in Gray said that the physical strain necessary for recovery was not present in the facts before it.
Both court cases cited, however, applied the law prior to the 1989 Act to the facts. Their reasoning is helpful as to the requirement of Article 8308-4.15 (1)of the 1989 Act which states as follows: the attack can be identified as:
(A) occurring as a definite time and place; and
(B) caused by a specific event occurring in the course and
scope of employment; The evidence in this case on appeal appears to place appellant somewhere between the two claimants in Gray and McCully and is sufficient to support the hearing officer’s failure to find that appellant’s attack was caused by a specific event at a definite time and place. Without such a finding the appellant cannot prevail. See Texas Workers’ Compensation Commission Appeal No. 91046 (Docket No. redacted) dated December 2, 1991.
In addition, if appellant had surmounted the previous requirement, he still would have to show by a preponderance of medical evidence that his work was a substantial contributing factor in the attack. The strongest statement for appellant was that work may have been a factor. Other medical evidence, which appellant introduced, indicated either that such an assertion cannot be made or that to make the assertion would be speculation. Had respondent offered evidence that raised the issue of preexisting heart disease, then appellant would have had to show not only that work was a substantial contributing factor, but that such factor weighed more heavily than did the preexisting heart disease factor. See Texas Workers’ Compensation Commission Appeal No 92115 (Docket No redacted) decided May 4. 1992. The medical evidence adequately supports the hearing officer’s finding on this crucial point. That finding, reflecting the wording of Article 8308-4.15 (2) of the 1989 Act, is as follows:
The preponderance of the medical evidence regarding the attack does not indicate that Claimant’s work, rather than the natural progression of a preexisting heart condition or disease, was a substantial contributing factor of the attack.
No finding was made as to the third criterion, whether the attack was triggered solely by mental stress factors. Since the first two criteria were decided against appellant and to prevail he must be successful in all three, no finding was necessary as to the third requirement. The findings and conclusions are supported by sufficient evidence and they, in turn, sufficiently support the decision that appellant is entitled to no benefits.
The decision is affirmed.
Joe Sebesta – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Lynda H. Nesenholtz – Appeals Judge