Opinion
No. 109,751.
2013-11-22
Stephen E. YARNELL, deceased, Appellant, v. STATE of Kansas–DEPARTMENT OF TRANSPORTATION and State Self–Insurance Fund, Appellees.
Appeal from Workers Compensation Board. Kala Spigarelli, of Spigarell Law Firm, of Pittsburg, for appellant. Jeffery R. Brewer, of Law Office of Jeffery R. Brewer, P.A., of Wichita, for appellees.
Appeal from Workers Compensation Board.
Kala Spigarelli, of Spigarell Law Firm, of Pittsburg, for appellant. Jeffery R. Brewer, of Law Office of Jeffery R. Brewer, P.A., of Wichita, for appellees.
Before LEBEN, P.J., BUSER and ATCHESON, JJ.
MEMORANDUM OPINION
LEBEN, J.
Stephen E. Yarnell died of heart complications while working on a Kansas Department of Transportation road-repair crew. His widow, Sandra, appeals the Workers Compensation Board's denial of benefits.
Employers must compensate employees who die on the job of heart-related injuries only in two situations: (1) when the employee dies as a result of unusual, employment-related exertion; and (2) when on-the-job exposure to an external force causes the employee's heart injury. K.S.A.2009 Supp. 44–501(e); Mudd v. Neosho Memorial Regional Med. Center, 275 Kan. 187, Syl. ¶ 4, 62 P.3d 236 (2003). Yarnell's widow points to evidence that heat, an external force, and exertion contributed to her husband's death. But substantial evidence supports the Board's conclusion that Yarnell did not die from exertion or heat, but from complications arising from his underlying heart disease. The Board is the factfinder, and because substantial evidence supports its decision, we are required to affirm it.
Factual and Procedural Background
Yarnell died of heart-related complications while doing road repair for the Kansas Department of Transportation. He had worked for the Kansas Department of Transportation for more than 20 years, typically controlling traffic. On the day he died, however, the crew was short a few members, so Yarnell worked next to and behind the lay-down machine, which heats asphalt and then spreads it over the road.
Working with the lay-down machine is difficult and physical labor. The machine emits temperatures estimated to be in excess of 400 degrees, and workers must exert themselves by walking around the machine and pressing with shovels to spread the edges of the asphalt smooth. Though Yarnell only ran the lay-down machine, on average, once every 2 years, working with the machine was considered one of his regular job duties.
On the day he died, Yarnell's crew was required to complete two asphalt patches. The crew worked both jobs back-to-back—the total work lasting between 3 and 4 hours, which is considered a usual duration for road patching. After the second job, Yarnell's coworkers noticed that he looked pale and tired. He later became unresponsive and died shortly after arriving at the hospital. Yarnell's autopsy revealed that he died from a spontaneous cardiac arrhythmia due to two underlying conditions: plaque build-up, causing the narrowing and hardening of the arteries of his heart (coronary atherosclerosis), and a mildly enlarged heart (cardiomegaly).
Sandra asked the Kansas Department of Transportation for workers compensation benefits to cover Yarnell's medical and funeral expenses. The Kansas Department of Transportation denied coverage. She appealed the denial to an administrative law judge, who found the Kansas Department of Transportation did not owe her benefits. Sandra appealed to the Worker's Compensation Board.
Before the Board, Sandra argued that her husband died because of his employment. In specific, she argued that despite dying of a heart injury, his death was compensable because he died as a result of his employment—because the unusual exertion he expended running the lay-down machine overworked his heart, and because his heart could not withstand the heat emitted by the lay-down machine.
Her expert, Dr. Joseph Galichia, a board-certified cardiologist, testified that heat and physical exertion contributed to Yamell's fatal arrhythmia “in a strong way.” Dr. Galichia believed that Yamell's heart became so overworked by the physical strain and the high temperatures that it could not effectively pump blood, which caused a fatal arrhythmia.
But the Kansas Department of Transportation presented contrary evidence. Their expert, Dr. Roger Evans, also a board-certified cardiologist, said that Yarnell died because a blood clot lodged in Yarnell's heart. Dr. Evans said that when the clot dissolved, it caused a rhythm disturbance that led to a heart attack. Dr. Evans thought that the clot formed because of Yamell's generally poor heart health. He said that such clots form slowly over time, so the clot was not caused by Yamell's employment. Dr. Evans considered the work conditions—that Yarnell was hot and physically exerting himself when he died—irrelevant because clots neither form nor dissolve because of heat or exertion.
The Board agreed with Dr. Evans and ruled in favor of the Kansas Department of Transportation. The Board found that Dr. Evans' testimony was more reliable than Dr. Galichia's because it was more specific, clearer, and based on more information than Dr. Galichia's testimony. Thus, the Board denied Sandra benefits because it found that Yarnell did not die from either unusual exertion or exposure to the external force of heat.
Analysis
We review the Board's decisions under the Kansas Judicial Review Act, K.S.A. 77–601 et seq. We look at the whole record, including evidence contrary to the Board's conclusion, to be sure that the Board's decision—and especially its factual findings-are supported by substantial evidence. Gustin v. Payless ShoeSource, Inc., 46 Kan.App.2d 87, Syl. ¶ 1, 257 P.3d 1277 (2011). Substantial evidence is evidence that provides a reasonable basis for the Board's factual findings or conclusion. Grether v. Cox Communications, No. 97,580, 2008 WL 588157, at *3 (Kan.App.2008) (unpublished opinion).
But if the Board's findings are supported by substantial evidence, it is our duty to uphold them, even if other evidence in the record would support a different conclusion. Abdi v. Tyson Fresh Meats, Inc., No. 104,132, 2011 WL 3444330, at *3 (Kan.App.2011) (unpublished opinion). We do consider contrary evidence, but as long as the evidence supporting the Board's factual findings is not so undermined by other evidence that no reasonable person would accept it as sufficient to support the Board's conclusions, then we must accept the Board's factual findings. 2011 WL 3444330, at *3.
So we must decide whether the Board's conclusion that Yarnell's death was not compensable by his employer was based on substantial evidence. Let's consider the two situations where employers must compensate their employees' heart-related injuries-where the death results from unusual exertion or an external force. See K.S.A.2009 Supp. 44–501(e). For exertion to be unusual, the person requesting benefits must establish that on the day in question the exertion required was greater than the exertion normally required to do the employee's job. K.S.A.2009 Supp. 44–501(e).
Sandra asks us to find that Yarnell unusually exerted himself on the day of his death because running the lay-down machine required more exertion than controlling traffic, and he usually controlled traffic. But our caselaw has clarified that whether exertion is unusual is not based on a comparison between a typical day and the day the injury occurred. Rather, we compare the exertion required to do the work-related task that resulted in the injury on the day the injury occurred and the exertion typically required to do the same task. Mudd, 275 Kan. at 193. The exertion need not be required of the employee daily for it to fall within the definition of usual work. 275 Kan. at 193. A task requiring physical exertion can be done only occasionally and still be considered usual work. 275 Kan. at 193.
So even though Yarnell did not run the lay-down machine daily, this does not mean that it was unusual—in the legal sense at issue here—for him to do so. To be sure, running the lay-down machine is more physically stressful than directing traffic, but there is no evidence in the record that it took more exertion to run the machine on the day Yarnell died than on any other occasion when Yarnell ran the machine. Rather, the Board relied on the testimony of Yarnell's coworkers that the work completed on the day Yarnell died was no different than work the crew completed on any other day. Thus, the Board's conclusion that Yarnell did not die from unusual exertion is supported by substantial evidence.
The second way an employee can recover for a heart-related injury is by establishing that an external force that the employee was exposed to as part of his employment was a substantial factor in causing the heart injury. To receive compensation for a heart-related death resulting from external forces, the claimant must: (1) establish the presence of a substantial external force in the working environment of the injured; and (2) present expert medical testimony that the external force was a substantial factor in causing the death. Mudd, 275 Kan. 187, Syl. ¶ 5.
Under Kansas law, heat qualifies as an external force. 275 Kan. 195–96. But for a heart-related death to be sufficiently heat-related to qualify for benefits, the heat must have done more than contribute to the death—it must have been a substantial factor in causing the employee's death. Taber v. Tole Landscape Co., 181 Kan. 616, Syl. ¶ 1, 313 P.2d 290 (1957); Smith v. Designer Const., Inc., No. 93,684, 2005 WL 1619874, at *2 (Kan.App.2005) (unpublished opinion).
The main evidence before the Board that Yarnell died from heat exposure was Dr. Galichia's testimony that heat “contributed to Yamell's death in a strong way.” This statement by itself may fall short of establishing that heat was a substantial factor in causing Yamell's death. In fact, we've previously affirmed the Board on a similar issue—noting that contributing to a death and being a substantial factor in causing a death are two different things, only the latter of which makes a death compensable. Smith, 2005 WL 1619874, at *2.
But even if Dr. Galichia had stated outright, “Yarnell died because of the heat,” the Board was not required to believe him in the face of contrary testimony. The Board determined that Dr. Evans' testimony was more credible, and Dr. Evans explained that heat does not cause blood clots to form. Dr. Galichia offered an alternate explanation (that heat contributed to an arrhythmia that caused Yamell's death), but the mere existence of an alternate explanation doesn't warrant reversal of the Board's decision. See Abdi, 2011 WL 3444330, at *3. The Board's conclusion that Yamell's death was not caused by the heat is supported by substantial evidence in the form of Dr. Evans' testimony.
Sandra presented evidence that her husband exerted himself physically in high temperatures on the day he died. Had the Board accepted Dr. Galichia's testimony, Sandra would be entitled to the requested benefits. But it did not do so. The Kansas Department of Transportation presented the testimony of a qualified cardiologist that Yarnell died from a blood clot that didn't arise from exertion or heat. The Board accepted that evidence. We are required to affirm the Board's decision if it is supported by substantial evidence, and it was. We therefore affirm the Board's decision.