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Fowler Bell Blog – Worker's Comp

This sure sounds a lot like fact finding to me…

  • 13 Nov 15


In a published case, issued November 13, 2015, the Court of Appeals (“COA”) drew the rare conclusion that the evidence in the case of Thomas v. Eddie’s Service Center, 2015-CA-000696-WC compelled a finding for the Plaintiff, in this case the estate of the deceased.  Essentially they held that there was no evidence to the contrary.  But oh, to the contrary there was!

This case involves a heart attack and a family owned business.  Interestingly the COA held that the evidence was so compelling that it requires a finding that Plaintiff did suffer a work-related cardiac event for two reasons.  First, they found it to be a mental-physical claim; meaning mental strain (stress) caused a physical injury (heart attack).  To them the question is whether the Plaintiff’s mental stress caused or contributed to a physical condition.  They also found it to be, in part, due to the physical exertion while working that fateful night.  What is interesting is how they got around the opinion of the Defense’s expert.

The ALJ found that the plaintiff’s death was not caused by his employment.  The event took place when plaintiff was working his tow truck trying to retrieve a vehicle that had gone over a culvert. This was described as “hard work.”  Ultimately he called his father to bring in the larger tow truck.  As this went on Plaintiff had a heart attack, though the Court is silent on whether Plaintiff did any hard work after the other wrecker arrived, operated by Plaintiff’s father.  We do know he did some road flagging before reporting that he felt like he had indigestion, and ultimately collapsed.

In support of the claim the estate filed the medical opinion of Dr. Handshoe who concluded that the physical exertion and mental stress (he was upset over an issue with the EPA and the need for them to remove gas tanks from the service center owned by his father).  For the defense their expert noted several cardiovascular risk factors including hyperlipidemia, hypertension, family history of premature coronary artery disease, and probable genetic disposition.  There was no autopsy, without the benefit of the same it will never be know what caused the sudden death, in fact there is no definitive proof Plaintiff suffered a heart attack, so concluded Defense’s expert.

The ALJ dismissed the claim finding that the estate failed to carry its burden of proof.  The Board remanded “for a decision based upon the totality of the evidence, not just on the medical opinions.”  On remand the ALJ dismissed again.  The Board affirmed.  The COA reversed.  As to the mental-physical injury the COA states that “The ALJ’s conclusion that Eddie’s concerns were not work-related is baffling. Even though Eddie did not own the Service Center, he managed it.” So they think the heart attack was caused in part by his stress.

They then go on to find that the Defense expert mischaracterized Plaintiff’s exertion to such a degree that the ALJ could not rely upon it.  In reaching this conclusion they cite to Cepero v. Fabricated Metals Corp.

Comment:  The COA really went out of their way to find for Plaintiff in this one.  In doing so, in my opinion, they substituted their findings of fact for the ALJ’s.