99-08914-G-6001. Brown vs. Delphi-Packard Electric.
Case Date | October 21, 2005 |
Court | Mississippi |
Mississippi Worker Compensation
2005.
99-08914-G-6001.
Brown vs. Delphi-Packard Electric
VERNICE BROWN, DECEASED CLAIMANT VS. DELPHI-PACKARD ELECTRIC
EMPLOYER AND GENERAL MOTORS CORPORATION CARRIER
MISSISSIPPI
WORKERS' COMPENSATION COMMISSION MWCC NO. 99 08914-G-6001Appearing for the claimant: John G. Jones, Attorney
at Law, Jackson, Mississippi Appearing for the employer and
carrier: Andy Sweat, Attorney at Law, Jackson, Mississippi
FULL COMMISSION ORDER
The above captioned cause came on to be heard on the 28th day of
March, 2005, in Hearing Room C of the Mississippi Workers' Compensation
Commission, Jackson, Mississippi, on the "Employer and Carrier's Petition for
Review" and the claimant's "Cross Petition for Review". After having reviewed
the record on appeal, the matters submitted on brief, having considered the
arguments of counsel and the applicable law, the Commission affirms in part and
amends in part the "Order of the Administrative Judge" dated December 7, 2004,
and renders. In so doing, we find as follows:
1. The
Administrative Judge correctly concluded that the claimant's sudden d eath at
work is causally related to her employment.
2. The Administrative
Judge erred in concluding that apportionment is approp riate in this case,
absent a finding of the specific cause of death unrel ated to her employment.
3. The Administrative Judge correctly calculated benefits in this
cause whic h are payable to the spouse and the decedent's two children, except
for t he application of apportionment which is, in our opinion, inappropriate.
ANALYSIS OF THE EVIDENCE
The material facts of this case are undisputed.(fn1) These facts,
critical to our decision today, are as follows:
Claimant's decedent, Vernice Brown, was the 38-year-old wife of
Wade Brown, mother of two, and an employee of Delphi-Packard in Clinton,
Mississippi, for approximately nine months prior to the date of her death on
November 25, 1997. Mrs. Brown's shift at the Packard facility began at 6:30
a.m. on November 25. That morning she rode to work with Zandreia Walker; one
stop was made on the way to work - at a convenience store where Mrs. Brown
bought a pack of cigarettes. Ms. Walker parked in the employee lot. Mrs. Brown
smoked one cigarette on the way to work. From the parking space to the stairs
leading into the facility, Mrs. Brown walked a distance of 575 feet over a
level surface. She and Ms. Walker were not late, and Ms. Walker stated that the
weather was fine, they were not unduly rushed, and that she did not notice any
signs of stress, overexertion or physical difficulty displayed by Mrs. Brown.
Thirteen concrete steps, with a hand rail in the middle, were climbed by Mrs.
Brown leading from the lot to the entrance of the facility. Once there, Mrs.
Brown indicated that she had forgotten her badge and would have to check in
with the security desk before walking another 875 feet to her work station.
Immediately after checking in with the security officer, Mrs. Brown took two
steps backward, lost consciousness and fell heavily to the floor. Although
there is some dispute as to the precise time that Mrs. Brown checked in at the
security desk, the ambulance records show that the call was received at 6:27
a.m. Despite the efforts of Packard employees and security staff on the scene,
and later by the paramedics, Mrs. Brown could not be resuscitated. She was
pronounced dead at Methodist Medical Center after 7:00 a.m., though no vital
signs could be obtained from and afterthe time she hit the floor of the
employer's facility. Mrs. Brown had never been treated for any heart condition
prior to the date of her death, and any preexisting condition she may have
suffered was asymptomatic and had never caused her any loss of work or
"occupational disability" before November 25, 1997.
An autopsy was performed. For present purposes, the critical
pathological findings were that Mrs. Brown had suffered a heart attack or
sudden death from cardiac arrhythmia due to lack of blood supply to the heart,
and that at the time of death she had a 75% occlusion or blockage of a coronary
artery. The occlusion was not a recent pathological development and, in the
opinion of all medical professionals who looked at this case, the occlusion was
in all likelihood the result of years of cholesterol buildup in the artery.
Thus, for medical and legal purposes, the atherosclerosis was a preexisting, if
asymptomatic, physical condition.
Dr. Taylor, testifying for the claimant, was of the opinion that
the physical activity engaged in by Mrs. Brown on the morning of her death
contributed in a significant manner to the heart attack or death event in that
Mrs. Brown was engaged in activity beyond the normal wear and tear of life. Not
surprisingly, Dr. Skelton for the employer was of the opinion that the physical
exertion required to walk 575 feet across a flat surface and climb 13 steps was
not strenuous enough to have "caused" the heart attack at that time and place.
Presumably on the basis of Dr. Skelton's testimony, the employer denied the
claim for death benefits made by Mrs. Brown's dependents.(fn2)
The Administrative Judge, following a long line of heart cases,
the more recent of these dealing with proving causal connection in compensation
cases, and applying the liberal construction mandated by the rules of statutory
construction of the Act and all other social or remedial legislation, credited
the testimony of Dr. Taylor and found the death of Mrs. Brown compensable;
however, further relying on Dr. Taylor's opinion that the preexisting coronary
artery disease was a contributing factor in the death of Mrs. Brown to the
extent of 50% to 51%, the Administrative Judge apportioned benefits by 50%. The
employer appealed the finding of causation, essentially arguing that Dr.
Skelton's opinions in response to hypothetical questions should be credited
over Dr. Taylor's opinions. Mrs. Brown's dependants cross-appealed on the
ground that application of the apportionment statute, Miss. Code Ann. Section
71-3-7 (1972 and Supp. 2004), to these facts was error. The cross-appeal
further challenges the efficacy of continuing to apply apportionment rules
pre-dating Stuart's Inc. v. Brown, 543 So.2d 649 (Miss. 1989) in the exclusive
context of true "heart attack" cases under the exception found in the
much-discussed footnote 13 of the en banc opinion (Id. at 655 n. 13).(fn3)
Section 71-3-7 of the Act is the source of authority for
apportionment of compensation. The statute states, in pertinent part:
Where a preexisting physical handicap, disease, or lesion is shown by medical findings to be a material contributing factor in the results following injury, the compensation which, but for this paragraph, would be payable shall be reduced by that proportion which such preexisting physical handicap, disease or lesion contributed to the production of the results following injury.In addressing this statute, the Court in Stuart's v. Brown faced the question of "whetherthe `contributing' preexisting disability which will entitle an employer and carrier to apportionment must have been occupationally disabling before the injury complained of, or only medically or functionally disabling." (Id. at 651.) In the Court's effort to give the apportionment statute "the most coherent and principled reading available" (Id.), it considered several factors that are worthy of reiteration here. * Allocation of economic loss. Where does the allocation of economic loss fa ll? Among all of the affected people in the system, who should bearwhat po rtion of the economic loss? * Recognition of prior allocation of economic loss. An individual who finds himself in the workers' compensation system as an injured worker has been subjected - by virtue of the Act itself - to one apportionment already. Th is is the apportionment inherent in the Act's statutory limits on compensa tion. While medical benefits are assured in totality, indemnity benefits i n our State shrink in comparison with the injured worker's pre-injury wage , loss of employee benefits, and the like. * Non-economic loss cannot be effectively allocated. All significant non-eco nomic loss of injury falls on the injured employee. * Recognition of the innate attention our Act gives to occupational or indus trial disability, as demonstrated in a body as a whole case such as that o f Ms. Vemice Brown, by wage earning capacity. We are statutorily directed, as a modified wage loss state, to consider the effect of injury upon earni ng capacity, period. "What sense", the Supreme Court asked, "does [it] make to use a condition that produced no loss of wage earning capacity ex ante as a reason for compensating ex post less than the employee's full work-connected loss of wage earning capacity?" In answering that question, the Stuart's court said: "The apportionment section of the Act may not be employed to deprive an injured worker of benefits to which he is by law entitled where the sole evidence supporting the claim of apportionment is that the injured worker had a preexisting, asymptomatic, degenerative condition" (citing Marshall Durbin, Inc. v. Hall, supra). And then, of course, came the inimical "n. 13". While we, and others, have been guilty of reading the note to "exempt" heart attacks from consideration under Stuart's v. Brown, and return them to the level of employment injury to which apportionment must apply, this reading is not consistent with the spirit of the...
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