This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on March 31, 2010. The hearing officer resolved the sole disputed issue by deciding that the decedent sustained a compensable heart attack on ____________.

The appellant (carrier) appealed, disputing the hearing officer’s determination of a compensable heart attack. The respondent (claimant beneficiary) responded, urging affirmance.

DECISION

Reversed and rendered.

On ____________, the decedent had been working for employer for over 30 years and was 66 years old. In evidence was a letter from the decedent’s doctor dated May 15, 2008, which states that the decedent has diabetes, hypertension, diabetic neuropathy and chronic low back problems and is not able to participate in the fire crew or able to fight fires. Additionally, a letter dated May 21, 2008, was in evidence from the same doctor who noted the decedent has many chronic health problems but is able to work full duty without restrictions. The decedent had attended the second half of a firefighting training course on October 23 and 24, 2008. The decedent returned home on the afternoon of (day before date of injury). The claimant beneficiary testified that the following day after running a few errands the decedent spent the majority of the day at home. She further testified that on the evening of ____________, she took the decedent to the emergency room after he began having symptoms of pain and sweating. The decedent died at the emergency room on ____________. The decedent’s death certificate lists sudden cardiac death and presumed coronary artery disease as the immediate cause of death and lists diabetes as a significant condition contributing to his death.

The claimant beneficiary had the burden to prove that the decedent’s fatal heart attack was a compensable injury, that is, that the elements of Section 408.008 were met.  Under that statute, a heart attack can be compensable only when it is found to be caused by a specific event in the employment and when the preponderance of the medical evidence indicates that the work, rather than the natural progression of a pre-existing heart condition or disease, was a substantial contributing factor of the heart attack.  See, e.g., Appeals Panel Decision (APD) 91081, decided December 31, 1991; APD 93948, decided December 3, 1993; APD 94327, decided April 28, 1994; and APD 001817, decided September 12, 2000.

Section 408.008.  COMPENSABILITY OF HEART ATTACKS.  A heart attack is a compensable injury under this subtitle only if:

1. (1) the attack can be identified as:

2. (B)occurring at a definite time and place; and

   (B)caused by a specific event occurring in the course and scope of the employee’s employment;

   (2)the preponderance of the medical evidence regarding the attack indicates that the employee’s work rather than the natural progression of a pre-existing heart condition or disease was a substantial contributing factor of the heart attack; and

   (3)the attack was not triggered solely by emotional or mental stress factors, unless it was precipitated by a sudden stimulus.

This provision of the statute requires a comparison or weighing between the conditions leading to the heart attack.  It is insufficient if the medical evidence indicates that the work was a factor related to the heart attack.  The preponderance of the medical evidence must indicate that the work, rather than the natural progression of a pre-existing heart condition or disease, was a substantial contributing factor.  See APD 93121, decided April 2, 1993, and the cases cited therein.  Finally, we have noted that “[t]here can be more than one substantial contributing factor, so long as the work is a greater factor than the natural progress of any underlying heart condition or disease.” APD 970148, decided March 12, 1997, citing APD 91009, decided September 4, 1991.

The hearing officer found that the decedent’s heart attack was caused by a specific event occurring in the course and scope of his employment and that the preponderance of the medical evidence regarding the attack indicates that the employee’s work rather than the natural progression of a pre-existing heart condition or disease was a substantial contributing factor of the heart attack. In her discussion of the evidence, the hearing officer notes the narrative report from (Dr. S) dated March 10, 2009, that stated in his opinion based upon a reasonable degree of medical certainty, the claimant’s participation in fire training directly and immediately precipitated an episode of progressive coronary thrombosis, myocardial infarction, and cardiac death. However, Dr. S does not explain how the decedent’s work was a greater factor than the natural progression of any underlying heart condition or disease to the decedent’s heart attack, nor does he explain how the fire training caused the decedent’s heart attack.

(Dr. W), a cardiologist who has been practicing for 25 years testified he had reviewed the decedent’s medical records and medical literature. He testified that the decedent had risk factors that would predispose him to sudden cardiac arrest such as his age, gender, diabetes, a history of dyslipidemia, a distant history of tobacco use and hypertension. Dr. W opined that the activities performed on October 23 and 24, 2008, were not substantial contributing factors to the decedent’s fatal heart attack. Dr. W testified that the decedent’s risk of a heart attack versus the general population was 2 to 3 times greater. Dr. W testified that he did not see anything in the records or in his discussion with one of the decedent’s co-workers that the training on October 23 and 24, 2008, was any different or more strenuous than his normal job as an operator for his employer.

In a written report dated December 28, 2009, Dr. W opined that the claimant’s myocardial infarction occurred in the late morning or early afternoon of ____________, based on enzyme analysis. Dr. W opined that the preponderance of the medical evidence is consistent with the natural progression of his pre-existing heart condition serving as the substantial contributing factor for his presentation with myocardial infarction as opposed to work related activities. Dr. W noted that the decedent’s multiple risk factors for a heart attack provide an easily understood milieu in which such events commonly occur.

The hearing officer’s decision that the decedent sustained a compensable heart attack is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Accordingly, the hearing officer’s determination that the claimant sustained a compensable heart attack on ____________, is reversed and a new decision is rendered that the claimant did not sustain a compensable heart attack on ____________.

The true corporate name of the insurance carrier is NEW HAMPSHIRE INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY  

211 EAST 7TH STREET, SUITE 620 

AUSTIN, TEXAS 78701-3218.

Margaret L. Turner
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Veronica L. Ruberto
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on May 3, 2004. The hearing officer decided that the appellant (claimant herein) did not sustain a compensable injury on ________________, and that the claimant did not have disability. The claimant appeals, contending that these determinations were contrary to the evidence. The respondent (carrier herein) files a request for review in which it argues that the decision of the hearing officer should be affirmed.

DECISION

Finding sufficient evidence to support the decision of the hearing officer and no reversible error in the record, we affirm the decision and order of the hearing officer.

There was conflicting evidence presented on the disputed issues of injury and disability. The issues of injury and disability are questions of fact. Section 410.165(a) provides that the hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given to the evidence. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref'd n.r.e.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). An appeals-level body is not a fact finder and does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact, even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). When reviewing a hearing officer's decision for factual sufficiency of the evidence we should reverse such decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard, we find no basis to reverse the hearing officer’s resolution of the injury or disability issues.

The decision and order of the hearing officer are affirmed.

The true corporate name of the insurance carrier is AMERISURE MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

CINDY GHALIBAS

7610 STEMMONS FREEWAY

DALLAS, TEXAS 75247.

Gary L. Kilgore
Appeals Judge

CONCUR:

Chris Cowan
Appeals Judge

Edward Vilano
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on March 25, 2004. The hearing officer resolved the disputed issues by deciding that the respondent (claimant) sustained a compensable heart attack on _______________, and that he had disability from January 6 through January 25, 2003. The appellant (self-insured) appealed, contending that the hearing officer’s decision is supported by insufficient evidence or, alternatively, is contrary to the great weight and preponderance of the evidence. The claimant asserts that the evidence supports the hearing officer’s decision.

DECISION

Affirmed.

The claimant had the burden to prove that he sustained a compensable heart attack under the provisions of Section 408.008, and that he had disability as defined by Section 401.011(16). The hearing officer’s discussion of the evidence and findings of fact reflect that she considered and appropriately applied Section 408.008 in determining whether the claimant sustained a compensable heart attack. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). As the finder of fact, the hearing officer resolves the conflicts in the evidence and determines what facts have been established. We do not view our decision in Texas Workers’ Compensation Commission Appeal No. 012157, decided October 31, 2001, which is cited by the self-insured, as compelling a reversal in the instant case because of dissimilarities in the evidence between that case and the instant case, including medical evidence in the instant case regarding the cause or causes of the plaque rupture that resulted in the claimant’s heart attack. The hearing officer, as the finder of fact, had to determine whether the preponderance of the medical evidence regarding the heart attack indicated that the employee’s work rather than the natural progression of a preexisting heart condition or disease was a substantial contributing factor of the heart attack. The hearing officer considered the medical evidence and found in favor of the claimant on that question as well as the other provisions of Section 408.008. We conclude that the hearing officer’s decision is supported by sufficient evidence and is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

We affirm the hearing officer’s decision and order.

The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is

HONORABLE MAYOR

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Robert W. Potts
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Edward Vilano
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on February 24, 2003. The record was held open until March 7, 2003, to obtain additional medical records. The hearing officer resolved the disputed issue by deciding that the decedent did not sustain a compensable fatal heart attack on ____________. The appellant (claimant beneficiary) appealed, arguing that there is no evidence in the record that supports the hearing officer’s finding that the preponderance of the medical evidence concerning the decedent’s heart attack indicated that natural progression of his preexisting heart condition and disease, rather than his work, was a substantial contributing factor of the heart attack. The claimant beneficiary additionally argues that the overwhelming weight of the evidence shows that the work-related activities the decedent performed significantly contributed to his suffering a fatal heart attack. The claimant beneficiary also contends that the hearing officer relied on facts outside the record. The respondent (carrier) responded, urging affirmance.

DECISION

Affirmed as reformed.

The claimant beneficiary had the burden to prove that the decedent's fatal heart attack was a compensable injury, that is, that the elements of Section 408.008 were met. Under that statute, a heart attack can be compensable only when it is found to be caused by a specific event in the employment and when the preponderance of the medical evidence indicates that the work, rather than the natural progression of a preexisting heart condition or disease, was a substantial contributing factor of the heart attack. See, e.g., Texas Workers' Compensation Commission Appeal No. 91081, decided December 31, 1991; Texas Workers' Compensation Commission Appeal No. 93948, decided December 3, 1993; Texas Workers' Compensation Commission Appeal No. 94327, decided April 28, 1994; and Texas Workers' Compensation Commission Appeal No. 001817, decided September 12, 2000.

We have noted on several occasions that this provision of the statute requires a comparison or weighing between the conditions leading to the heart attack. It is insufficient if the medical evidence indicates that the work was a factor related to the heart attack. The preponderance of the medical evidence must indicate that the work, rather than the natural progression of a preexisting heart condition or disease, was a substantial contributing factor. See Texas Workers' Compensation Commission Appeal No. 93121, decided April 2, 1993, and the cases cited therein. Finally, we have noted that "there can be more than one substantial contributing factor, so long as the work is a greater factor than the natural progression of any underlying heart condition or disease." Texas Workers' Compensation Commission Appeal No. 970148, decided March 12, 1997, citing Texas Workers' Compensation Commission Appeal No. 91009, decided September 4, 1991.

The claimant beneficiary argues that the hearing officer disregarded the expert testimony of Dr. H based on facts not in evidence. We disagree. There was conflicting evidence regarding the temperature at the time of the incident, whether the decedent was jogging or walking, and whether the decedent was in the sun or shade. We note that while the hearing officer discussed these issues in the Statement of the Evidence portion of the decision, no specific finding of fact was made regarding these issues. Dr. H testified at the CCH that if the evidence reflected that for the majority of the time the decedent was performing his work, not only was the decedent not jogging but was under the shade of the wing of the airplane, it would affect his conclusions.

The claimant beneficiary also argues that the hearing officer made a mistake of law by applying “a positional risk analysis to the facts, and by holding that there can be only one ‘substantial factor’ of a fatal heart attack.” The hearing officer specifically stated that he considered, compared, and weighed the medical evidence as to the effect of the decedent’s work and the natural progression of his heart condition. Further, the hearing officer specifically found that the preponderance of the medical evidence concerning the decedent’s heart attack indicated that natural progression of his preexisting heart condition and disease, rather than his work, was a substantial contributing factor of the heart attack. The hearing officer neither applied the wrong standard nor erred as a matter of law.

Finally, the hearing officer’s statement on the record that he served 30 years in the Air Force and could not shut out 30 years of knowledge is not an indication that he would be considering facts not in evidence in making a determination in this case, as alleged by the claimant.

We reform the decision portion of the decision and order to read as follows: The decedent did not sustain a compensable fatal heart attack on ____________.

We affirm the decision and order of the hearing officer as reformed.

The true corporate name of the insurance carrier is INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

800 BRAZOS, SUITE 750, COMMODORE 1

AUSTIN, TEXAS 78701.

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Edward Vilano
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on June 17, 2002. The hearing officer determined that the deceased sustained a compensable heart attack on _____________. The appellant (carrier) appeals the determination on sufficiency grounds. The respondent (claimant) urges affirmance.

DECISION

We affirm.

The hearing Officer did not err in determining that the deceased sustained a compensable heart attack on _____________. Section 408.008 governs the compensability of heart attacks. At issue was whether the decedent’s work rather than the natural progression of a preexisting heart condition or disease was a substantial contributing factor of the heart attack. Section 408.008(2). This was a question of fact for the hearing officer to resolve based upon a weighing of the medical evidence. Texas Workers’ Compensation Commission Appeal No. 012723, decided February 4, 2002. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence, including the medical evidence (Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ)). In view of the evidence presented, we cannot conclude that the hearing officer's determinations are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

We affirm the hearing officer’s decision and order.

The true corporate name of the carrier is FREMONT INDUSTRIAL INDEMNITY COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Judy L. S. Barnes

CONCUR:

Robert W. Potts
Appeals Judge

CONCUR IN THE RESULT:

Thomas A. Knapp
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on April 16, 2002. The hearing officer decided the deceased did not sustain a compensable heart attack on ________________, and that the proper beneficiaries are BB, SB, JB, and BrB. The appellants (beneficiaries) appeal the determination that the heart attack was not compensable. The respondent (carrier) files a response, urging affirmance.

DECISION

Affirmed.

We briefly address the beneficiaries’ assertion that the hearing officer was biased in favor of the carrier. After carefully reviewing the record, we cannot agree that the hearing officer's decision in this instance was the product of bias or prejudice. Rather, we believe that his determination was the result of his resolving the conflicts and inconsistencies in the evidence and assessing credibility.

On ________________, the decedent had a fatal heart attack while at work. The compensability of heart attacks is governed by the provisions of Section 408.008, which requires, for compensability, that the attack be identified as having occurred at a definite time and place; that it be caused by a specific event occurring in the course and scope of employment; that 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; and that the attack was not triggered solely by emotional or mental stress factors unless it was precipitated by a sudden stimulus. The decision in Texas Workers' Compensation Commission Appeal No. 012071-s, decided October 18, 2001, contains a summary of the pertinent Appeals Panel case law construing this statute.

The hearing officer, tracking the language of § 408.008, stated, “The heart attack was not caused by a specific event occurring in the course and scope of the deceased employment.” The beneficiaries contend that the hearing officer erred because, as they point out, § 408.008 does not require that the heart attack be caused by a single incident. Although a series of activities within a specific period of time may meet the definition of "specific event,” the hearing officer determined that there was no causal connection between the decedent’s work and his heart attack. Texas Workers' Compensation Commission Appeal No. 951862, decided December 20, 1995; and see Texas Workers' Compensation Commission Appeal No. 992851 decided January 27, 2000.

The determination of the compensability of a heart attack must be based on a comparing or weighing of the effect of the work against the natural progression of a preexisting heart condition. Texas Workers' Compensation Commission Appeal No. 91009, decided September 4, 1991. The claimant has the burden of proving the compensability of a heart attack. Texas Workers' Compensation Commission Appeal No. 91081, decided December 31, 1991. The claimant and the carrier presented conflicting medical evidence regarding whether the work or the natural progression of the decedent's preexisting heart disease was the substantial contributing factor of the heart attack. The hearing officer's findings of fact indicate that he believed the preponderance of the medical evidence indicated that the primary precipitating cause of the decedent's heart attack and death was the natural progression of preexisting heart disease.

We are satisfied that the hearing officer's findings and conclusions, which are challenged by the beneficiaries for evidentiary insufficiency, are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

The decision and order of the hearing officer are affirmed.

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

MR. RUSSELL R. OLIVER, PRESIDENT

221 WEST 6TH STREET

AUSTIN, TEXAS 78701.

Roy L. Warren
Appeals Judge

CONCUR:

Susan M. Kelley
Appeals Judge

Robert E. Lang

Appeals Panel

Manager/Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on April 1, 2002. The appellant (claimant) appeals the hearing officer’s determination that the deceased did not sustain a compensable heart attack on _______________. The respondent (carrier) responds, urging affirmance.

DECISION

Affirmed.

After review of the record and the complained-of determinations, we have concluded that there is sufficient legal and factual support for the hearing officer’s decision. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1976).

We affirm the hearing officer's decision and order.

The true corporate name of the insurance carrier is AMERICAN EMPLOYER’S INSURANCE COMPANY and the name and address of its registered agent for service of process is

C. J. FIELDS

5910 NORTH CENTRAL EXPRESSWAY

DALLAS, TEXAS 75206.

Roy L. Warren
Appeals Judge

CONCUR:

Judy L. S. Barnes
Appeals Judge

Thomas A. Knapp
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on April 1, 2002. The hearing officer determined that the appellant (claimant) did not sustain a compensable heart attack on____________. The Appeals Panel did not receive a request for review from the claimant by May 7, 2002, the due date for an appeal by the claimant. The file does contain a faxed copy of an appeal from the claimant with a cover sheet which is dated May 23, 2002, and which was received on May 23, 2002, by the Texas Workers' Compensation Commission‘s (Commission) Chief Clerk of Proceedings. Included with the appeal is a copy of an envelope postmarked April 26, 2002, bearing an incorrect address for the Commission, indicating an attempt to mail something to the Commission’s Hearings Division on April 26, 2002. Also included with the appeal is a fax cover sheet purporting to fax an appeal to a number which is no longer a good fax number for the Commission’s Hearings Division. The appeal states the claimant’s disagreement with the hearing officer’s determinations. The respondent (carrier) filed a response to the claimant’s appeal, urging affirmance. We note that the carrier states that it received the claimant’s appeal on May 3, 2002, indicating that the claimant did timely prepare and mail a copy of an appeal to the carrier.

DECISION

The decision and order of the hearing officer have become final pursuant to Section 410.169.

Commission records show that the decision was mailed to the parties on April 11, 2002. In accordance with Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 102.5(d) (Rule 102.5(d)), the claimant is deemed to have received the decision on April 16, 2002. Pursuant to Section 410.202 and Rule 143.3(c), an appeal is presumed to be timely if it is mailed not later than the 15th day after the date of receipt of the hearing officer's decision and received by the Commission not later than the 20th day after receipt of the hearing officer's decision. Both portions of Rule 143.3(c) must be complied with in order for an appeal to be timely. Texas Workers' Compensation Commission Appeal No. 94065, decided March 1, 1994; Texas Workers' Compensation Commission Appeal No. 94111, decided March 10, 1994; Texas Workers' Compensation Commission Appeal No. 941225, decided October 24, 1994. Section 410.202(d) was amended effective June 17, 2001, to exclude Saturdays, Sundays, and holidays listed in the Texas Government Code from the computation of time in which to file an appeal. Under the amended provision, 15 days from the claimant’s deemed receipt of the hearing officer’s decision would have been May 7, 2002, and 20 days would have been May 14, 2002. The claimant’s appeal was not received by the Commission until May 23, 2002. The claimant’s appeal was not timely filed.

The appeal being untimely, the jurisdiction of the Appeals Panel was not properly invoked and the decision and order of the hearing officer have become final under Section 410.169.

The true corporate name of the insurance carrier is EMPLOYERS GENERAL INSURANCE GROUP, INC., and the name and address of its registered agent for service of process is

ROBERT RAMSOWER

1601 ELM STREET, SUITE 1600

DALLAS, TEXAS 75201.

Michael B. McShane
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Robert W. Potts
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 2, 2001. The hearing officer resolved the disputed issues by deciding that the deceased sustained a compensable heart attack on _________; that the deceased was not in a state of intoxication when the compensable injury occurred; that respondent two (subclaimant) is entitled to reimbursement for burial benefits from the appellant (carrier) in the amount of $5,867.00; and that, since no person was found who would be eligible for death benefits as a beneficiary under the 1989 Act, the death benefits are to be paid to respondent one (SIF). The carrier appealed the hearing officer’s determinations that the deceased sustained a compensable heart attack and that the subclaimant is entitled to reimbursement for burial benefits. The SIF and the subclaimant responded, requesting affirmance. There is no appeal of the determinations that the deceased was not in a state of intoxication when the compensable injury occurred or that the carrier is to pay the death benefits to the SIF.

DECISION

The hearing officer’s decision is affirmed.

COMPENSABILITY ISSUE

The hearing officer did not err in determining that the deceased sustained a compensable heart attack. The hearing officer applied the appropriate statutory provision of the 1989 Act, Section 408.008, in making the determination on compensability. Concerning the carrier’s contention, we find that there is no material misstatement of the evidence in the decision. Conflicting medical evidence was presented, and the hearing officer resolved those conflicts in favor of the claimant. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). As the finder of fact, the hearing officer resolves the conflicts in the evidence and determines what facts have been established. The hearing officer’s decision on the compensability issue is supported by sufficient evidence and is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

REIMBURSEMENT ISSUE

The carrier’s contention that the hearing officer erred in determining that the subclaimant is entitled to reimbursement for burial benefits from the carrier is predicated on its assertion that the deceased did not sustain a compensable heart attack. Since we are affirming the hearing officer’s decision that the deceased sustained a compensable heart attack, we likewise affirm the decision on the reimbursement issue.

The hearing officer’s decision and order are affirmed.

The true corporate name of the insurance carrier is TEXAS WORKERS’ COMPENSATION INSURANCE FUND (effective September 1, 2001, the true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY) and the name and address of its registered agent for service of process is

MR. RUSSELL R. OLIVER, PRESIDENT

221 WEST 6TH STREET

AUSTIN, TEXAS 78701

Robert W. Potts

Appeals Judge

CONCUR:

Gary L. Kilgore

Appeals Judge

Robert E. Lang

Appeals Panel

Manager/Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 15, 2001. With respect to the single issue before her, the hearing officer determined that the respondent (claimant) sustained a compensable heart attack on __________. In its appeal, the appellant (self-insured) asserts that the hearing officer erred in determining that the claimant’s heart attack was compensable under Section 408.008. The appeal file does not contain a response from the claimant to the self-insured’s appeal.

DECISION

Reversed and a new decision rendered that the claimant did not sustain a compensable heart attack under Section 408.008.

The undisputed evidence shows that the claimant worked as a firefighter for the self-insured. On ___________, the claimant was called to put out a grass fire, which spanned seven miles. The job required the use of a heavy, 300-foot long, fully charged hose, which the claimant was required to carry, sometimes alone and sometimes with the assistance of another firefighter. After working the fire for approximately one-half to one hour, the claimant began to experience pain in the center of his chest beneath his sternum and a feeling of exhaustion. The claimant continued working for approximately another one and one-half hours before he was taken to the hospital, where he was diagnosed with an acute inferior myocardial infarction. He underwent quadruple bypass surgery on February 29, 2000.

Section 408.008 provides that a heart attack is compensable only if (1) the attack can be identified as (A) occurring at a definite time and place and (B) caused by a specific event occurring in the course and scope of the employee’s employment; (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; and (3) the attack is not triggered solely by emotional or mental stress factors, unless it is precipitated by a sudden stimulus. All of the elements of Section 408.008 must be found in order for a heart attack to be compensable. Texas Workers’ Compensation Commission Appeal No. 92555, decided December 2, 1992. In order to prevail, the claimant has the burden to prove, by a preponderance of the medical evidence, that the employee’s work was a substantial contributing factor of the attack when balanced against the natural progression of a preexisting heart condition or disease. Texas Workers’ Compensation Commission Appeal No. 931003, decided December 16, 1993. We have noted on several occasions that this provision of the statute requires a comparison or weighing between the conditions leading to the heart attack. It is insufficient if the medical evidence indicates that the work was a factor related to the attack. The preponderance of the medical evidence must indicate that the work rather than the natural progression of a preexisting heart condition or disease was a substantial contributing factor. See Texas Workers’ Compensation Commission Appeal No. 93121, decided April 2, 1993, and the cases cited therein. Finally, we have noted that “there can be more than one substantial contributing factor, so long as the work is a greater factor than the natural progression of any underlying heart condition or disease.” Texas Workers’ Compensation Commission Appeal No. 970148, decided March 12, 1997 (Unpublished), citing Texas Workers’ Compensation Commission Appeal No. 91009, decided September 4, 1991.

The self-insured initially asserts that the claimant’s heart attack is not compensable as a matter of law, because it did not occur at a definite time and place. There is no dispute that the claimant’s heart attack occurred while he was fighting a fire on __________. The self-insured contends that the claimant must point to a specific event as opposed to the “repetitive duties of fighting a fire” in order to satisfy the first prong of Section 408.008. We find no merit in this assertion. The evidence established that the claimant engaged in heavy exertion over a period of several hours while fighting a fire and that he suffered a heart attack while doing so. That evidence is sufficiently specific to satisfy the requirements of Sections 408.008(1)(A) and (B).

The hearing officer’s determination that the “preponderance of the evidence indicated that the Claimant’s duties rather than the natural progression of the preexisting heart condition was a substantial contributing factor of the heart attack on ___________" is more problematic. At the emergency room, the claimant was treated by Dr. G, a cardiologist, who also performed the cardiac catheterization. Dr. G did not provide an opinion as to causation. At some point during his recovery, the claimant changed to Dr. C as his cardiologist. In a “To Whom it May Concern” letter dated December 1, 2000, Dr. C stated that the claimant “sustained a myocardial infarction in __________, at work. The likelyhood [sic] is stress triggered his heart attack.” The claimant testified that both Dr. G and Dr. C told him that eventually he would have had a heart attack whether or not he had it fighting the fire on __________. The other doctor to provide a causation opinion was Dr. Z, who performed a review of the claimant’s medical records for the self-insured. In his April 17, 2000, report, Dr. Z stated:

In this case I feel the main substantial contributing factor was the [claimant’s] underlying preexisting coronary artery disease. Fighting the fire on that particular day may have strongly contributed to the heart attack but it would not have occurred without his preexisting coronary artery disease. His coronary artery disease was caused by multiple factors including his underlying diabetes, history of hyperlipidemia as well as genetic predisposition to heart disease as evidenced by the family history of coronary artery disease with his brother who had coronary bypass graft surgery.

Given the severity of his underlying coronary disease and his lack of treatment of his cardiac risk factors, it was literally only a matter of time before he would have suffered a heart attack or required some type of coronary intervention for symptoms.

Dr. Z concluded his report by stating, “[i]n summary, the preponderance of the medical evidence indicates that [claimant’s] heart attack was more of a natural progression of a preexisting underlying heart disease although certainly the stress that he experienced fighting the fire that day was a strong contributing factor to his heart attack.”

The self-insured contends that the hearing officer failed to perform the required balancing analysis in this case. We cannot agree that the hearing officer failed to perform the analysis in light of her statement acknowledging that she had to do so. Nevertheless, we believe that the hearing officer’s determination does not find sufficient evidentiary support in the record. Although Dr. Z stated that the work was a strong contributing factor, his ultimate opinion was that the claimant’s “heart attack was more of a natural progression of a preexisting underlying heart disease . . . .” Based upon that conclusion, Dr. Z’s opinion simply does not support a determination that the work was a greater factor in the claimant’s heart attack than the underlying heart disease. Dr. C’s opinion likewise falls short of establishing the requisite proof to establish the compensability of the claimant’s heart attack under Section 408.008. Accordingly, we reverse the hearing officer’s determination that the claimant sustained a compensable heart attack and render a new decision that the claimant’s myocardial infarction of ___________, was not compensable under Section 408.008.

The true corporate name of the self-insured is (SELF-INSURED EMPLOYER) and the name and address of its registered agent for service of process is

Elaine M. Chaney
Appeals Judge

CONCUR:

Susan M. Kelley
Appeals Judge

Michael B. McShane
Appeals Judge