BEFORE THE ARKANSAS WORKERS’ COMPENSATION … · 2/25/2016 · right beside the paint department...

BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION

CLAIM NO. G506814

COREY ROBBINS, EMPLOYEE CLAIMANT

HILARK INDUSTRIES, INC., EMPLOYER RESPONDENT

HARTFORD UNDERWRITERS INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT

OPINION FILED FEBRUARY 25, 2016

Hearing before Chief Administrative Law Judge David Greenbaum January 11,2016, at Little Rock, Pulaski County, Arkansas.

Claimant represented by Mr. Gary Davis, Attorney-at-Law, Little Rock, Arkansas.

Respondents represented by Mr. A. Gene Williams, Attorney-at-Law, Little Rock,Arkansas.

STATEMENT OF THE CASE

A hearing was conducted January 11, 2016, to determine whether the

claimant sustained a compensable injury within the meaning of the Arkansas

workers’ compensation laws.

A prehearing conference was conducted in this claim on December 9, 2015,

and a Prehearing Order was filed on said date. At the hearing, the parties

announced that the stipulations, issues, as well as their respective contentions were

correctly set out in the Prehearing Order. A copy of the December 9, 2015,

Prehearing Order was introduced, without objection, as “Commission’s Exhibit 1.”

It was stipulated that the employee/employer/carrier relationship existed at

all relevant times, including July 6, 2015; that the claimant’s average weekly wage

was $481.90 which would entitle him to compensation rates of $321.00 per week

2ROBBINS – G506814

for temporary total disability and $241.00 per week for permanent partial disability

in the event the claim was found compensable; and that respondents had

controverted the claim in its entirety.

By agreement of the parties, the primary issue presented for determination

concerned compensability. If overcome, claimant’s entitlement to associated

benefits must be addressed.

Claimant contended, in summary, that he sustained a compensable injury on

July 6, 2015, in the form of a cardiac arrest brought about as the result of exposure

to chemicals, excessive heat, and dehydration associated with his employment; that

he was entitled to temporary total disability benefits beginning July 7, 2015, and

continuing through an undetermined date, maintaining that his healing period had

not ended; that respondents should be held responsible for all hospital, medical,

and related expenses, together with continued reasonably necessary medical

treatment; and that a controverted attorney’s fee should attach to any benefits

awarded. Claimant reserved the issue of permanent disability, if applicable.

The respondents contended that the claimant could not prove a

compensable injury within the meaning of the Arkansas workers’ compensation laws

while maintaining that the claimant’s medical condition was unrelated to any work

activities.

In addition to the claimant, his fiancée, Monica Johnson, was called as a

corroborating witness. Dennis L. Edwards was called as a witness by the


respondents. The record in this claim consists solely of the transcript of the January

11, 2016, hearing consisting of two (2) volumes, “Volume 1,” the lay testimony, and

“Volume 2,” containing medical reports, as well as additional documentary evidence,

together with the evidentiary deposition of Dr. Steven Hutchins, which was

introduced as “Respondent’s Exhibit F” and retained in the Commission file in bound

form.

From a review of the record as a whole, to include medical reports,

documents and other matters properly before the Commission, and having had an

opportunity to hear the testimony of the witnesses and to observe their demeanor,

the following findings of fact and conclusions of law are made in accordance with

Ark. Code Ann. §11-9-704:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. The Arkansas Workers’ Compensation Commission has jurisdiction over thisclaim.

2. The stipulations agreed to by the parties are hereby accepted as fact.

3. The claimant has failed to prove, by a preponderance of the credibleevidence, that his cardiac arrest on July 6, 2015, arose out of and during thecourse of his employment with Hilark Industries, Inc.

4. The claimant has failed to establish, by a preponderance of the evidence,that his physical problems, need for medical treatment and disability arecausally related to any extraordinary and unusual work activity compared tothe claimant’s usual work for Hilark Industries on July 6, 2015, or that someunusual and unpredicted work incident occurred which was the major causeof the claimant’s cardiac arrest on July 6, 2015.

DISCUSSION


This is an extremely unusual, complicated, and difficult claim. First, it is

undisputed that the claimant sustained a cardiovascular accident on July 6, 2015,

at approximately 10:00 p.m. while at home which resulted in sudden cardiac death

which required resuscitation followed by hospitalization, medical treatment, and

disability. Further, the claimant was subsequently diagnosed with chronic

cardiomyopathy of unknown etiology, possibly related to myocarditis and/or

chemical injury. Further, it is undisputed that the claimant experienced exposure

to chemicals, as well as exposure to heat associated with his employment in his

usual course of work. It can also be argued that the claimant became overheated

and dehydrated while at work on July 6, 2015. However, there is no credible

evidence whatsoever that the claimant experienced any extraordinary and unusual

exertion at the workplace on July 6, 2015, or that some unusual and unpredicted

incident occurred which may have caused his subsequent cardiac arrest. In fact,

the claimant’s course of conduct on July 6, 2015, the passage of time after he

ceased working on July 6, 2015, until he experienced the cardiac event, together

with a consideration of the claimant’s pre-existing physical problems, long history

of drug use, and pre-existing stress factors outside the workplace renders the

immediate claim extremely suspect, at best. Admittedly, in one of his medical

reports, Dr. Hutchins attributed the claimant’s cardiac arrest as being related to his

working conditions on the day of the event while stating that heat exhaustion,

dehydration, and stress of the day could have contributed to the claimant’s cardiac


arrest; however, as will be set out further below, Dr. Hutchins based his opinion on

inaccurate and incomplete history as reflected by his deposition testimony taken

December 14, 2015. In my opinion, it would require speculation and conjecture to

attribute the claimant’s cardiac arrest to employment activities. Conjecture and

speculation, however plausible, cannot be permitted to supply the place of proof.

Dena Construction Company v. Hearndon, 264 Ark. 791, 575 S.W.2d 155 (1979);

Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).

Many of the material facts in this claim are basically undisputed. Facts

involving the claimant’s work activities for Hilark Industries, the events that occurred

on July 6, 2015, including the time-line between the claimant first experiencing

some form of heat exhaustion, his course of conduct thereafter, and the time that

he sustained an injury in the form of a cardiac arrest are not in dispute. The issue

is whether the claimant can prove that the injury is compensable within the meaning

of the Arkansas workers’ compensation laws.

The claimant, Corey Robbins, is thirty-one (31) years old. He has a high

school education. The record reflects that the claimant worked for the employer for

more than one year. The claimant was employed as a painter/prep, his duties

consisting primarily of prepping dump truck beds, as well as painting dump truck

beds. The claimant’s description of his daily activities which included his activities

on July 6, 2015, are set out below:

Q All right. Go ahead, tell us what you do.


A Well, we have to chip off the little – it looks like BBs along the side of the weldto get the welds nice and neat. Then we have to take a nine-inch disc grinder andbuff all the metal imperfections out. If there’s any Bondo work that needs to bedone from the weld department, you know, messing anything up, we can Bondo it. We let that dry. We sand the Bondo down and then we blow it off with the shop airlines. Once that’s blown off, we get a product called ZEP. It’s like an industrialdegreaser. We spray down the entire outside of the body and we blow dry it. Itevaporates so we can air dry it with a blower. Once we’re done with that, we takea forklift, pick up the front tongue because it’s on a trailer, which is two wheels thatwe can guide it to wherever we want to in the shop, and we back it up because ourpaint booths – there’s two paint booths. One is on the other end of the job. One isright here next to our paint department. Typically, we use the older one, which isright beside the paint department because it’s bigger. I pull it in there, back it inthere to where it’s got two car lifts and a truck lift, and we can lift it up in the air,prime and paint the bottom, lower it down, pull it out a little ways so the arms of thelift aren’t in the way, and then we can proceed to spray the inside and out.

Q And painting one of these truck beds, typically how long does that take?

A It depends on what you’re talking about. If you’re talking about prime andpaint?

Q Yes, sir.

A Total of approximately three, three hours, three-and-a-half.

Q All right. And this is being done by hand –

A Yes.

Q – the spraying?

A I’m spraying it, yes, sir.

Q Okay. Now, when you enter into a paint booth, you’re wearing a suit?

A Yes, sir.

Q Describe it for us.

A It’s a Tyvek suit made by Sherwin-Williams, at this time Sherwin Williams. Itgoes from the top of your head down to the bottom of your feet and you’re zipped


in it. It’s got a hood. I’ve also got what they call a spray sock. It’s cotton. It lookslike a sock but with a cutout around your eyes, and you can pull it all the way downto below your chin or to just below your nose, however you feel comfortable. Andthen with that I’ve got industrial latex gloves to keep the paint off of my hands. Atthis time we had a 3M, I don’t know the model number, respirator that has a helmetwith a full face shield, and then you’ve got a positive air that goes – it looks like aback brace. The small of your back is the actual fan and the filter, but it’s betterypowered so it’s not cool air. You’re getting the shop air.

Q So is the hose connecting –

A The hose connected from the back goes down to the actual motor itself.

Q Okay.

A And that’s typically – and, you know, of course, my work boots, steel toed, andall my clothing.

Q How many of these beds are put out per day?

A On a day, two.

Q Two.

A Sometimes one. It depends on how fast the weld shop gets it up to us. Andsometimes we push three. Just it all depends on the size and the detail workbecause there’s different types of paint finishes that we use.

Q How many people are doing the type of work that you’re doing?

A At the time it was just me and one other guy.

Q Okay. So two guys are going through the process that you’ve described a fewmoments ago?

A Yes, sir. Well, the prep. We got one guy that also sandblasts.

Q That’s a different person?

A It’s a different person.... (Tr.20-23)

The claimant works from 7:00 a.m. until 3:30 p.m. As described above,


whenever the claimant is actually in the paint booth, he wears a full suit from head

to toe with a helmet and respirator. The record reflects that the claimant did not

perform any spray painting until after lunch. The claimant’s description of the

events at work on July 6, 2015, follow:

A Well, we start work at 7:00, help finish prep a bed in preparation for the otherpainter to start. We typically help each other out. Like if we need something mixed,the other one that’s not painting at that time can help like mix paint as we’re stillspraying. Did that up until lunch, took lunch from 11:30 to 12:00.

Q Were you feeling okay at that time?

A I was feeling okay at that time, yes.

Q Had you been in the paint booth yet at that point?

A No.

Q Okay.

A Been in it but not spraying in it. Then after lunch finished prep, helped finish,prepped the second bed to be painted, and once that was done, I suit up, startmixing my paint, and that bed we were using our black paint, which is the samecompany, Sherwin-Williams.

Q Was this the first time that you had suited up on that day?

A Yes, sir.

Q Okay, go ahead.

A As soon as I started mixing up the paint, your time clock begins on that colorbecause the heat and that particular color, you’ve got about 45 minutes once youstart mixing that paint up to finish per coat. I only mix up enough for that color percoat because of the time frame that you have. And started spraying it, did my firstcoat. I was already hot and I sweat a lot anyways, so I was, you know, come outof the booth, had to wipe my face back down, mix up some more paint. Then I wentback in, started spraying the outside the second time, and there was ladder workinvolved. This one was what they call a Mongoose bed, and they’re a little bit –


they’re more industrial, more heavy duty. So whenever I proceeded to go backaround on my last round, sweating profusely, come out of the booth as soon as I gotdone. I asked my other paint partner to help me clean up that gun because if youlet it dry, it’s ruined. He said yes. He started cleaning it up. That’s when Iproceeded to unsuit, take all my equipment off, put it down. I went directly over tothe water fountain and got a drink of water, went over to this chair that was sittingin front of our shop fan – they’re pretty good-sized fans – sat down, kneeled downand could not cool off. I felt like I was still real hot. So I knew that our break roomhad – or the HilBuilt side had – their break room has AC. When in there. The HilBiltside was – they were still on their break, so it was around 2:40. I went into thebreak room. They seen how distraught, disoriented I was, and –

Q Who did?

A Let’s see, there was three of them in there. I don’t know their last names, butThad, Josh and a guy named Matt. Josh is the assistant firefighter. He said itlooked like I got too hot, and I do believe he is the one that went upstairs to getDennis. Dennis come back downstairs, seen that – you know, asked me if I got toohot. I told him I didn’t know. I’ve never got that hot before. He asked me what kindof drink I drink and if I could hold down any like crackers. We went to the vendingmachine which is right next to the break room. He bought me a Mountain Dew andhe bought me peanut butter crackers. I ate half of the peanut butter crackers andstarted to drink the Mountain Dew. He asked me at that time if I wanted to go to thehospital or see a doctor. I looked at the time. It was approximately 3:00 o’clock,close to 3:00. I told he, “No, I think I just got too hot. I think I just need to go homeand cool down.” He asked me if I wanted to go home and I said, “No, my fianceehas got the car. She’ll be here at 3:30. I’ll just leave then.” And that’s when I wentout, as soon as the 3:30 bell rang, clocked out, walked out to the car and gotemotional about how I was feeling and –

Q Did you stay in the break room up until 3:30?

A No. After mine and Dennis’ conversation about that, I went back to the paintdepartment and was around the fan the whole time. (Tr.24-27)

The record reflects that the claimant was born with pectus excavatum, a

congenital defect where his chest cavity is not the normal size which required the

claimant to undergo surgery at age 5. The claimant acknowledged that the

condition and surgery caused him to experience occasional chest pain which he


described as not severe, but, rather, discomfort. The claimant stated that after

leaving work on July 6, 2015, he felt pressure in his chest rather than pain.

However, as previously noted, almost eight (8) hours passed between the time the

claimant last worked and the time of his cardiac arrest. Further, the record, as a

whole, including the medical history, as well as the testimony of Mr. Edwards,

reflects that the claimant was not in distress while at work. In addition, the record

reflects that the claimant had a long history of drug abuse. In fact, the claimant

frequently obtained emergency room treatment for a variety of complaints, including

complaints of chest pain for his pectus excavatum, and took many opiates over a

long period of time for a variety of complaints as reflected by his testimony

on cross-examination. In addition, on cross-examination, the claimant

acknowledged complaining of chest pain due to non-job related stress for which he

obtained pain medications. Most of the claimant’s stress was related to domestic

disputes including divorce, child support issues, various judgements, and other

factors requiring the claimant to abuse drugs to the extent that the claimant was

required to enter an inpatient drug treatment which was never completed because

of lack of funds. As recently as May, 2015, the claimant was seen by his family

physician for addiction and depression. As recently as June 19, 2015, just

weeks before the cardiac arrest, the claimant was advised to undergo

narcotic counseling because of depression and suicidal thoughts. Suffice it

to say that the record reflects that the claimant was under significant stress,


unrelated to his employment. (Tr.39-46)

On further cross-examination, it was pointed out that the claimant applied for,

and received short-term disability benefits through on or about October 2, 2015, and

that the claimant signed various forms indicating that his disability was not related

to occupational disability. (Resp. Ex. D)

In response to questions from this examiner, the claimant acknowledged that

his employer specifically inquired whether he needed any medical treatment on July

6, 2015, which he declined, stating that he just needed to cool off. The claimant

stated that he did not perform any physical work after approximately 2:45 p.m.

When questioned concerning why he applied for short-term disability rather than

workers’ compensation benefits, he stated that at the time he applied for short-term

disability, he was not certain that his cardiac event was work-related until after

talking to Dr. Hutchins, who apparently told the claimant that heat could cause the

injury at which time he pursued a workers’ compensation claim. (Tr.48-51)

Dennis L. Edwards was called as a witness by the respondents. Mr.

Edwards is the CFO of both Hilark Industries, and HilBilt Sales in Benton, Arkansas.

As such, Mr. Edwards is responsible for financial, personnel, as well as safety

concerns for the employer. I found Mr. Edwards to be an extremely credible

witness. Mr. Edwards responded to a co-worker advising him that the claimant was

in the break room and may have become dehydrated. Mr. Edwards’ notes did

reflect that the claimant ceased working earlier than 2:45 as reported by the


claimant. A portion of Mr. Edwards’ credible testimony is set out below:

Q Let’s get to the day of this incident. How did you learn of anything involving Mr.Robbins on July 6th?

A My notes and my time frame place that time at about 1:15 p.m. on July the 6th. I was in my office and I received a phone call from HilBilt Sales – and I’ve describedthat differences – and here’s the way the conversation started. “Hey, Dennis, oneof your guys is down here in our break room and he might have got too hot. I thinkyou need to come down here and see.” And I immediately left and go down toHilBilt Sales’ break room, which is a path of about those – I’ve got to go from myoffice down the hallway and through a glass door and down those two flights ofsteps and then back through into – almost into the shop area where there’s a breakroom that’s air conditioned.

Q So there’s two rooms, two break rooms?

A Yeah, there’s another break room in the other building, Mr. Williams, that’s forHilArk, for the plant, for the assembly area.

Q And just so we’re on track, Respondent’s Exhibit G shows a stairwell. Is thatthe stairwell?

A Yeah, that would be looking down from the doorway that I mentioned going intothe main lobby from my office area.

Q So you went down to the Hilbilt employees’ break room. Tell us what you saw.

A I was met by one or two of HilBilt Sales’ employees right in the doorway,standing there waiting probably for me to show up, saying, “Hey, Corey is in here.” And Corey is in there sitting. It’s an air conditioned area and he’s sitting, and muchlike he described, kind of just sitting there. I think he was – I think he was proppedup. And, you know, I got a routine, guys, and it’s like this. Because Arkansas is hotand we work in a hot environment from time to time because we weld, remember,and we cut, and so I walked up to Corey and said, “Corey, you are you okay?” AndI remember his response was, “Oh, I think I got too hot.” And here’s the questionsthat I asked. I said, “Well, tell me about yourself. Are you okay?” He’s like, “I don’tknow.” I said, “Do you have chest pain or any chest discomfort?” “No.” “Are younauseated?” “No.” “Are you having shortness of breath?” “No.” “Do you need tosee a doctor or go to the hospital?” “No.” Now, from that point we start trying todefine some things. I said, “Are you sweating? Have you lost the ability to sweat?” And he had sweated because it was warm, and he said, “Well, I don’t know.” And


I said, “Are you staying hydrated?” Because I am constantly on the guys in thesummertime, “Stay hydrated, stay with fluids on you.” I said, “Dude, what did youhave for lunch?” And he said, “I had a Mountain Dew with a pack of chips.” Now,I said, “Is your blood sugar low? I mean, are you diabetic?” Because I don’t know. I don’t know if he is. And he says, “I don’t know. I’m not diabetic. I don’t know if myblood sugar is low.” I said, “That’s not enough to eat. Are you sure, you know, areyou sure what you ate?” “Yeah, I’m sure what I ate.” I said, “Do you feel like youneed to go to the hospital?” “No.” I said, “Do you feel like coming upstairs to myarea where it’s cool and let’s sit down and get cool, get cooler?” He said, “Yeah.” I said, “Do you feel like you can come up there by yourself? You’ve got to goupstairs.” “No problem.” Of course, all the guys know where my office is. So we– the picture you just showed me, we walked out of the break room and down thehall into – through the glass door and up those 22 steps or whatever those steps,20 something steps, and into a conference room that’s air conditioned. All theupstairs is air conditioned. I said, “Corey, do you feel like washing for me realgood?” He said, “Sure.” Now, at this point –

JUDGE GREENBAUM: Wait, I’m sorry?

THE WITNESS: At this point Grayling Hill who is my –

JUDGE GREENBAUM: I’m sorry, I missed your –

THE WITNESS: I’m sorry, sir.

JUDGE GREENBAUM: – earlier statement.

THE WITNESS: Washing, washing his hands and face.

JUDGE GREENBAUM: Oh, okay.

THE WITNESS: At this point Mr. Hill, Grayling Hill, who is presidentof HilArk, whose office is adjacent to mine, came out and he is asconcerned as I am about what’s going on. From that point forwardMr. Hill was with me during this whole process upstairs. Here’s whatwe asked him to do or what I asked him to do. I said, “Corey, there’sa bathroom at the end of this hall. Do you feel like you can go downthere and wash your face real good with cold water, wash your handsand arms real good and dry off for me?” “Yep.” So he walked downthere to that bathroom and he washed good from what I could tellbecause he had dirt on him, okay? We all get dirty down there. Hecame back. At that point I had a box fan going and he sad down in


that conference room in front of that box fan. I asked him again infront of Mr. Hill, I said, “Corey, tell me about your symptoms.” “I thinkI just got too hot.” I said, “Are you having chest pains or chestdiscomfort?” “No, sir.” “Are you having any shortness of breath?” “No.” “Are you nauseated?” “No.” “Do you feel dizzy, do you feellightheaded?” “No.” I said, “Do you think you need to see a doctor?” “No, I think I just need to cool off.” At that point I started talking to himagain about what he’d had for lunch. I said, “When was the last timeyou had something to drink?” And he was somewhat vague and weimmediately gave him a bottle of cold water, and he began to drinkthat bottle of water at that table in my conference room. Now, the fanis going, he’s washed, he’s cooling off a little bit. I saw nothing thattold me that he wasn’t sensible about those questions that I’d askedhim multiple times. At this point I said, “Are you sure you’ve hadenough to eat today?” And he says, “Well, that’s kind of what I do,you know, chips and Mountain Dew.” Now, I caution all the guysabout carbonated beverage, especially with caffeine in it, especiallywhen it’s hot, and I said, “Dude, you need to drink that bottle of water. Now, as he sat there he and I talked and Grayling and I talked withhim about how he felt, and he says, “I think I just overheated.” Weoffered again – and at this point I offered this, I said, “Corey, do youneed to go to the doctor?” “No.” “You know I’ll take you if you do.” “Yeah.” I said, “Could you eat something if I got it for you?” “Probably could.” That’s when I got him a pack of peanut buttercrackers. Now, he stayed up there in that upstairs office for I’m goingto say 30 to 40 minutes, and we basically went through again thosesame questions, “Do you need to be seen by anybody?” “No, I don’tthink so.” And I offered at that point, I said, “Do you want to gohome? Do you need to go home? “No, I think I can finish the day.” Now, I walked with him back downstairs, because we walked backdown the hall, down the glass doors and down the steps, and wepassed by the vending machine where I’d gone to get the crackersand peanut butter, and at that point he had drank basically a bottle ofwater, cold water, and I said, “Do you think you could drink somethingelse for me without getting sick?” He said, “Yeah.” And that’s whenI stepped in there and I said, “What can you drink? Can you drinksome more water for me or do you want some Gatorade or what?” And he said, “Well, I really want a Mountain Dew.” He’s hooked onMountain Dews and I’m hooked on Diet Cokes, so I obliged him andI bought him another drink. Now, he then, Mr. Williams, walked fromthere out to the plant to the paint area, and that area, I don’t know, it’s 300, 400 feet from that area to the paint staging area. Now, it’s a flat


area and it’s a shop, and we went from an air conditioned office to anon-air conditioned shop building. We had the doors open and fansgoing and stuff like that. And one of the conversations I had withCorey, I said, “Corey, if you overheated today, based upon myexperience in the past, most guys don’t feel good the rest of the day,but you know I’ll take you to the doctor right now if you need to beseen, if you think you need to be seen.” And he said, “No, I think I’llbe okay.” I said to him, I said, “Well, this isn’t the day to go home andmow your yard.” Now I don’t know if he had to mow his yard or not,but I was just trying to be sensible in saying, “Hey, you’ve overheatedor you appear to have overheated. Don’t go do something crazy andmake things worse.” To my knowledge, he spent the rest of theafternoon down there in the paint unit. Now, he mentioned a whileago that he felt like it was later, but, guys, listen to this, the HilArkbreak times in the afternoon are from 1:40 to 1:50, and the HilBiltbreak times are from 1:50 to 2:00 o’clock, and I think I caught he saidthis event happened about 2:45. He came out of the paint boothabout 2:45 and that the guys at HilBilt Sales were on break. If that betrue, the HilBilt Sales guys were long gone from break because theywould have been in the break room from 1:50 to 2:00 p.m. (Tr.61-68)

MEDICAL EVIDENCE

A summary of the medical evidence is warranted. As noted several times,

several hours past between the time the claimant last worked and the time of his

cardiac event. The claimant was initially resuscitated and immediately taken to the

Saline Memorial Hospital Emergency Room. The records reflect that the

emergency responders arrived at the claimant’s residence at 10:18 p.m. on July 6,

2015. After being resuscitated, the claimant was taken to the emergency room,

initially thought to be a drug overdose with a triage time of 10:51 p.m. The doctor

notes are set out, in part, below:

NOTES: patient’s girlfriend gives additional history that this patient got overheatedat work. He was cooled down and stated that he felt better. This evening he wassitting on the couch next to his car [sic] friend. She states that he told her that he


has not been any opiate medication or chills since last Thursday. The patient thenhad a convulsion and turned blue and EMS was called. (Cl. Ex. A, p.5)(Emphasissupplied)

Further reason for the claimant’s admission at Saline Memorial Hospital was

provided by physician John Hampton consistent with the aforementioned history:

REASON FOR ADMISSION: This patient was found unresponsive in his house. The fire department arrived and they placed an AED on this gentleman. The AEDadvised shocks. The patient underwent shocking two to three times. When theparamedics arrived the patient did have a pulse but was bradycardic. He hadagonal respirations. He was given two milligrams of Narcan and seem to respondsomewhat. The patient had cardiopulmonary resuscitation as well. Eventually thepatient arrived in our emergency room and he as [sic] not conscious, unresponsiveand not able to give a history. The patient does have a history of pectusexcavatum, which was repaired in 1989. The patient is a tobacco smoker at onepack per day having smoked for 10 years. He is know [sic] to abuse marijuana,methamphetamine and opiates. Initial blood pressures in the emergency roomvaried from 156/103 to a low of 98/73. His pulse was irregular and generally in the120s. The patient’s girlfriend gave an additional history that this gentleman gotoverheated at work. He was cooled down and started to feel better. He was sittingon the couch next to his girlfriend when she stated that he told her he had not beenusing opiate medications or other drugs since several days ago. Subsequent tosaying all of that the patient had a convulsion, turned blue and that was whenEmergency Medical Services was called. (Cl. Ex. A, p.13)(Emphasis supplied)

The claimant was then transported to the Arkansas Heart Hospital in Little

Rock, Arkansas. The claimant was initially seen by Cardiologist Vasili Lendel. After

admission, the claimant was followed primarily by Dr. Steven W. Hutchins who

initially saw the claimant on consultation on July 7, 2015. Dr. Hutchins’ initial

impression states:

IMPRESSION: Acute cardiac arrest due to an apparent cardiomyopathy. Whether this is an acute myocarditis type process or an acute event on a chronicunrecognized cardiomyopathy is not clear. There is certainly no family history tosuggest a familial process. The patient’s previous drug use might have contributedto the development of cardiomyopathy. (Cl. Ex. A, p.22)


Apparently, the claimant was discharged from the Arkansas Heart Hospital

on July 13, 2015. He was readmitted on August 18, 2015, where he was again

seen by Dr. Hutchins with the following patient profile:

Patient profile –This is a 30-year-old Caucasian resident of Benton with the following issues – 1. Sudden cardiac death resuscitated out of hospital successfully on

07/06/2015.2. Cardiomyopathy of unknown etiology possibly due to acute myocarditis,

possibly due to acute chemical injury but etiology unknown.3. History of a pectus excavatum with surgican reconstruction.4. History of opiate addiction. (Cl. Ex. B, p.5)

Dr. Hutchins’ impression was cardiomyopathy with chronic heart failure. The

etiology claimant’s cardiomyopathy was unknown. Dr. Hutchins indicated that it

could have been acute or it may have been a pre-existing myopathy. It must be

noted that under subjective complaints, Dr. Hutchins notes significant chemical

inhalation prior to the sudden cardiac death which is totally inconsistent with the

record in this matter. (Cl. Ex. B, pp.5-6)

On September 4, 2015, Dr. Hutchins issued a causation opinion which is set

out in its entirety below:

To Whom It May Concern:

I consulted on Corey Robbins at the Arkansas Heart Hospital on 7/7/15 regardingthe events in question. Mr. Robbins had worked in his job as a painter the day ofhis cardiac arrest. He became extremely fatigued, short of breath and felt really badwhen he left his work. It was thought that he had symptoms of probable heatexhaustion and he went home to hydrate and rest. Later on the same day he hada cardiac arrest and CPR was performed in the home before transport to a medicalfacility.

It is likely, more probably than not, that the cardiac arrest event was related to his


working conditions on the day of his event. The heat exhaustion, dehydration andstress of the day could certainly have contributed to his arrest.

Mr. Robbins has ongoing symptoms of fatigue, chest pain, mental confusion,dizziness, numbness and tingling of extremities and anxiety from his event. (Cl. Ex.B, p.14)

Suffice it to say that the aforementioned opinion was based solely upon an

incomplete and inaccurate history provided to Dr. Hutchins. Respondents took the

evidentiary deposition of Dr. Hutchins on December 14, 2015, as reflected by the

following exchange:

Q Well, I’ve been given a copy of a noted. It’s not in his medical records, but it’sdated September 4. And at that point, you had seen him at the hospital there once. And what you said, likely more probable than not that this event was related to hisworking conditions. Heat exhaustion, dehydration, stress could have contributed. Based on what we know about this guy, isn’t that just total speculation at this point?

A Well, I think it’s speculation because I can’t prove it. But he had an acuteevent. He had sudden death. And described by his girlfriend is when hecame on – he came home, he was feeling poorly, experiencing a lot of shortnessof breath, and restlessness until this led to, basically, a sudden death event.

So I believe the evidence suggests that whatever that perfect storm event was,whether it was pre-existing disease or not, this stress that he experienced and hefelt so bad he had to go home, because he was feeling this shortness of breath and sickness. So that’s where I think that is like a takotsubo. That’s – whatever theenvironmental process was, regardless of whether he had pre-existing disease, itled to this sudden death event.

Q What if the history were not what you were told? What if he got hot at work,he cooled down for an hour, and he went back to work all afternoon and saidrepeatedly, I feel fine. And then six hours later at home, suddenly this eventhappens. That’s a little different history than what you’ve been given, isn’t it?

A It is.

Q And if that history were correct, that lapse of time would make it less likely thatwhatever happened at work caused the event at home; correct?


A The sequence that you describe there would not have been to me an indicativeof a process contributable to his work environment.

Q That would be somewhat different than if he got in distress and stayed indistress –

A Yes.

Q – continuously up until the event, which is, basically, what you’ve been told.

A Correct. (Resp. Ex. F, pp.16-17)

ADJUDICATION

Compensability of heart-related injuries is set out in Ark. Code Ann.

§11-9-114 which provides:

(a) A cardiovascular, coronary, pulmonary, respiratory, or cerebrovascularaccident or myocardial infarction causing injury, illness, or death is a compensableinjury only if, in relation to other factors contributing to the physical harm, anaccident is the major cause of the physical harm.

(b)(1) An injury or disease included in subsection (a) of this section shall not bedeemed to be a compensable injury unless it is shown that the exertion of the worknecessary to precipitate the disability or death was extraordinary and unusual incomparison to the employee’s usual work in the course of the employee’s regularemployment or, alternatively, that some unusual and unpredicted incident occurredwhich is found to have been the major cause of the physical harm.

(2) Stress, physical or mental, shall not be considered in determining whether theemployee or claimant has met his or her burden of proof. (Emphasis supplied)

First, it must be noted that the claimant’s cardiac arrest occurred at home

more than eight (8) hours after he last worked. The Court of Appeals has held that

even if a heart attack was sustained on-the-job (this was at home), in the absence

of work that is unusual and extraordinary, or in the absence of the occurrence of

some unusual and unpredicted incident, it is not compensable, regardless of the


level of physical or mental distress the employee experiences. See, Family Dollar

Stores v. Edwards, 97 Ark. App. 156, 245 S.W.3d 181 (2006).

Conceding that the claimant may have suffered from some temporary heat

exhaustion at the workplace, the record as a whole reflects that the claimant ceased

work immediately, re-hydrated, and was feeling better when he left work. The

claimant repeatedly refused medical treatment offered by his employer. The

claimant’s work on July 6, 2015, was not unusual or extraordinary. The record does

not reflect that the claimant was under any level of physical or mental distress

related to his employment. However, the record does reflect that the claimant had

pre-existing chest problems which were congenital in nature. The claimant

frequently complained of chest pain. The claimant abused drugs. The claimant

was under significant stress unrelated to his employment. It would require sheer

speculation and conjecture to attribute the claimant’s cardiac arrest to events at the

workplace. Dr. Hutchins’ medical opinion is based solely upon an incomplete and

inaccurate history.

It is well-settled that the claimant has the burden of proving the

job-relatedness of any alleged injury, without the aid of any kind of presumption in

his favor. Pearson v. Faulkner Radio Service, 220 Ark. 368, 247 S.W.2d 964

(1952); Farmer v. L.H. Knight Company, 220 Ark. 333, 248 S.W.2d 111 (1952). The

burden of proof claimant must meet is preponderance of the evidence. Voss v.

Ward’s Pulpwood Yard, 248 Ark. 465, 425 S.W.2d 629 (1970). Under prior law, it


was the duty of the Commission to draw every legitimate inference in favor of the

claimant and to give the claimant the benefit of the doubt in making factual

determinations. However, current law requires that evidence regarding whether or

not a claimant has met the burden of proof be weighed impartially, without

giving the benefit of the doubt to either party. Arkansas Code

Annotated §11-9-704(c)(4); Wade v. Mr. C.Cavenaugh’s, 298 Ark. 363, 768 S.W.2d

521 (1989); Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987).

After reviewing the evidence in this case impartially, without giving the benefit

of the doubt to either party, I find that the claimant has simply failed to prove that he

sustained a compensable injury within the meaning of the Arkansas workers’

compensation laws. Accordingly, the within claim is hereby respectfully denied and

dismissed.

IT IS SO ORDERED.

DAVID GREENBAUM Chief Administrative Law Judge

BEFORE THE ARKANSAS WORKERS’ COMPENSATION … · 2/25/2016 · right beside the paint department...

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