Workers' Compensation and the Compensability of Attenuated Injuries: "one Man's Stress Is Another Man's Pleasure" - Jack Pritchard

• Publication year: 1997

Workers' Compensation and the Compensability of Attenuated Injuries: "One man's stress is another man's pleasure"^*

The compensability of stroke-related deaths in workers' compensation cases is a hotly contested matter,¹ and the compensability of strokes precipitated by so-called job-stress has run a dividing line between Georgia courts.² This Article will provide the reader with the history of the law which gave rise to this particular issue and develop the controversy while determining the reasoning behind the opposing opinions. This Article will also provide the reader with some insight into the practical effects of a Georgia Supreme Court decision on this issue one way or another.

In order to aid the reader in a more complete understanding of this issue and its implications, this Article will rely upon a "case study" taken from a pending case before an Administrative Law Judge (ALJ) in a district of Georgia. The purpose of the case study is to give the reader a concrete example of the issue and dispel any ambiguities that may arise in a purely law-oriented discourse. The case study will be extremely specific, so this Article will attempt to incorporate as much of the law surrounding this issue while treating the case study as an undercurrent that flows through the entire Article as a concrete anchoring point.

This Article will first analyze the history of the law that led to the issue in point, including much of the generic law surrounding all of workers' compensation. Beginning with the Georgia Code's authorization of certain types of injuries as compensable,³ this Article will detail the emergence of heart attack and stroke cases in workers' compensation law and then proceed to cases dealing with work-related stress.⁴

After detailing the history of stress-related strokes in workers' compensation claims, this Article will discuss the compensability of strokes in workers' compensation from the viewpoint of decided cases as well as from an independant analysis of the law.⁵ Job stress will be the next subject this Article discusses using the same analysis. Finally, this Article will provide a suggested solution to the division of the courts on this issue. This solution will be supported by the plain language of the law and overwhelming medical opinion as well as public policy considerations.

I. The Case Study⁶

John and Jane Smith were married, divorced, remarried (to each other), and redivorced. The second divorce was the result of strained relations between the couple when John became involved in a meretricious relationship. John and Jane had three children, one of whom suffered a handicap that left her permanently disabled. After their second marriage, John worked for the police department as a sergeant on the midnight shift. One year later, John became a forensic specialist and worked eight-hour shifts but was on call twenty-four hours a day. John later became an administrative assistant to the police chief. The latter position was a desk job that did not involve the traditional aspects of law enforcement, such as arrests or criminal investigations. For several years, John also worked part-time jobs to supplement his income, both before and after his final divorce.

John smoked for eighteen years and was diagnosed with high blood pressure a year before he quit smoking. John had been taking medication for his high blood pressure for two years before his death, and in the last week preceeding his death, he doubled the medication at the insistence of his doctor. John had beef four or more times a week and used salt on his food. Jane flavored their vegetables with margarine and prepared the food with salt.

After the final divorce, Jane confronted John about his meretricious relationship, and he admitted that he had been seeing someone else. John was angry when Jane told him he was spending too much time with his girlfriend and was neglecting the children. There was tension between John and Jane after the divorce when they met to exchange the children.

Under the divorce decree, John only had visitation rights with the three children. Ten percent of John's salary was sent to Jane for the support of the children. John also provided medical support for the children, paying fifty percent of their medical bills after the insurance payment. John was described as not laid back or relaxed, but busy. He took his job seriously and was a very conscientious person. Jane also admitted that John was "a gung-ho deputy" and "a real go-getter." While working as a forensic specialist, John was involved in many physical situations and would come home wound up. Jane stated that John's job as an administrative assistant was also stressful.

II. The Setting

In order for the reader to grasp the intricacies of the ensuing discussion, some background information is necessary.⁷ The burden of proof in a workers' compensation case is on the claimant to show that the "employee suffered an accidental injury which arose out of and in the course of his employment."⁸ The employer takes the employee as he finds him, regardless of knowledge of pre-existing infirmities.⁹ The claimant is aided by a presumption that '"when an employee is found dead in a place where he might reasonably have been expected to be in the performance of his duties, it is presumed that the death arose out of his employment . . . ." However, "[t]his presumption arises only when the death is unexplained."¹¹

The Georgia Code excludes from its definition of injury a "disease in any form except where it results naturally and unavoidably from the accident" and "heart attackfs], the failure or occlusion of any of the coronary blood vessels, or thrombosis unless it is shown by a preponderance of competent and credible evidence that any of such conditions [heart attack through thrombosis] were attributable to the performance of the usual work of employment."¹² In Echols v. Chattooga Mercantile Co.,¹³ the Georgia Court of Appeals adopted the following definition of "accident": '"[Accident] includes every injury except diseases not naturally growing out of injuries arising out of and in the course of employment . . . ."'¹⁴ The court of appeals, in Griggs v. Lumbermen's Mutual Casualty Co.,¹⁵ similarly defined accident as excluding a disease that does not arise out of a physical injury: "A traumatic disease, as distinguished from an ideopathic disease is one which is caused by physical injury and is compensable."¹⁶

The presumption that "an employee's death arose 'out of and in the course of his employment' if he is found dead in a place where he may reasonably be expected to be in the performance of his employment,"¹⁷ only arises where the death is unexplained.¹⁸ With the rise of heart attack and stroke claims in workers' compensation, the courts needed to redefine the term "unexplained." According to the court in Zamora, the death itself (i.e. the precipitating factor of the death) must be unexplained.¹⁹ In Odom v. Transamerica Insurance Group,²⁰ the court found that "[i]n the present case the death was not unexplained. The death certificate was introduced in evidence which stated that death was due to 'cerebral vascular accident due to hypertension.' Therefore, in this case the presumption did not arise . . . ."²¹

Furthermore, the court in Zamora stated that

where the precipitating causative factor of a stroke is known and explained as hypertension, the claimant is not entitled to rely upon the presumption that the stroke "arose out of the deceased's employment but must submit probative evidence on the issue of the causal connection between the stroke and the employment.²²

However, if the death certificate merely stated that the cause of death was due to "cerebral hemorrhage" and did not include the additional opinion that the cerebral hemorrhage was due to hypertension, there would be a finding that the claimant had a stroke, but the cause of the stroke would be unexplained.

There are three types of evidence a claimant under the statute can employ in order to show that the deceased's death was causally related to his employment: (1) medical opinion, (2) lay observation and opinion, and (3) "natural inference through human experience."²³ However, where neither the symptoms of the stroke nor the stroke itself occurred while the employee was carrying out his employment, the lay observation and natural inference are not available as credible evidence to prove causation.²⁴ Therefore, where the "natural inference is not available ... to establish causation, the issue of causation 'becomes solely a medical question . . . ,'"²⁵ The policy behind this was discussed by Judge Andrews in his dissenting opinion in Reynolds:

Whether a causal connection exists between the continuous job-related mental stress [and the] stroke involving a cerebrovascular occlusion is not a simple medical question about which a cause and effect relation-

ship may be inferred by laymen based on common sense or human experience. It is a medical question of the sort that requires expert medical testimony.²⁶

A claimant will have to prove a causal relationship between the accident and the employment through competent medical testimony. It does not matter that other factors induced the injury, as long as the employment contributed to those factors.²⁷ Furthermore, "[t]he fact that such an attack is made more likely or probable by a pre-existing weakened physical condition is not a ground for denying compensation, if there is sufficient competent evidence that it was traumatic rather than ideopathic in origin."²⁸ The court in Georgia Bureau of Investigation v. Worthingtori²⁹ stated that where there is "inconsistent medical opinion it is the responsibility of the board to assign weight to the testimony of medical experts."³⁰

The courts have long allowed recovery under workers' compensation for stroke related injuries,³¹ but job related stress as a causation of injury is relatively new.³² Worthington set the...