# FILED
May 12, 1997 Cecil W. Crowson Appellate Cou rt Clerk

IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

FOR PUBLICA

TION Filed: May 12, 1997 LARRY KRICK, ) ) Plaintiff-Appellant, ) LAWRENCE COU NTY ) ) Vs. ) HON. JIM T. HAMILTON, ) JUDGE CITY OF LAWRENCEBURG, ) ) Defendant-Appellee. ) No. 01S01-9511-CV-00220

For Plaintiff/Appellant : For Defendant/A ppellee : Ben Boston James A. Hooper Christopher V. Sockwell Hopper & Plunk, P.C. Boston, Bates & Holt Savannah, Tennessee Lawrenceburg, Tennessee



## O P I N I O N

JUDGMENT OF TRIAL COURT REVERSED; CASE DISMISSED. ANDERSON, J.-2- We granted the motion f or review to determine whether a policeman’s coronary artery di sease arose out of his employment for the City of Lawrenceburg. The Law rence County Circuit Court found that the police officer sustained a compensable injury in the course and scope of his empl oyment with the City of Lawrencebur g. On appeal, the Special Workers’ C ompensation Panel reversed and dismis sed the case, finding no compensabl e injury. After carefully examining the record, we affirm the Panel’ s findings of fact and conclusions of law. The judgment of the trial court is reversed and the case dismissed.

BACKGROUND The proof is summarized as follows:
The plaintiff, Larry Krick,aged 44, worked as a pol ice officer for the City of Lawrenceburg since 198 1. On August 24, 1993, Krick was on routine patrol when he received a cal l that a woman had been shot and that her husband was holding a weapon on her. Krick and another police officer went to the residence of the woman and kicked in the front door to gain access to the house. As they entered the house, Krick drew his revolver. He and his fellow officer could only see about two feet in front of them, becaus e the house was littered with boxes and debris. The officers were forced to crawl throug h the house to try to find the woman because of the accumulated boxes. The y found the woman in a back bedroom lying on the bed. The woman had not been shot. No one else was in the house.
After the incident, Krick said that he was “nervous” and “tense.” He experienced shortness of br eath and had chest pain. Krick reported the pain to his supervisor, w

ho advised him to seek medical attention. Krick then w ent to Baptist Hospital in Nas hville, where he w as seen by Dr. Charl es Mayes, a cardiologist. Dr.Mayes diagnosed coron ary artery diseas e. Krick later1 Angina pector is was defi ned as chest pain due to insuf ficient blood suppl y reachi ng an area of th e heart. -3- underwent quadruple by pass surgery performed by Dr. Robert Hardin, a cardiovascular surgeon. After approximately nine weeks, Krick r eturned to work. After returning to work, Krick was promoted to lieutenant, and one month be fore the trial, he was promote d to captain. At the time of the tri al, Krick was the second ranking police officer on the Lawrenceburg force and handled administration for the department w hen the chief of police was absent

.

Krick testified that he had never been told that he had coron ary artery disease prior to August 1993. He said that he had some hy pertension, which he described as a “borderli ne thing.” Krick w as on medication for the high bl ood pressure, and stated that it w as under control most of the time. He also said that he had successfully passed phy sical examinations before going to work for the police department in July 1981. Approximately one week prior to the inci dent on August 24, 1993, Krick became extremely hot and expe rienced shortness of breath, but no chest pain, while mowing grass along a riverbank. He had to lie down in a recliner unt il he cooled off. He then resumed mow ing the yard.
The medical proof consisted of the testi mony of several physi cians by deposition and is summariz ed as follows:

Dr. Haresh H. Khatri,a doctor of internal medicine, testified that he had treated the plaintiff since 1988 and tha t he had prescribed medication for Krick’s hypertension. He further s tated that the plaintiff smoked one to tw o packs of cigarettes per day, and as early as 1991, he had di agnosed the plaintiff as having high cholesterol. When asked whether Krick’s occupation as a po lice officer caused the blocked arteri es, which resulted in the plaintiff experiencing angina 1 , Dr. Khatri stated that the plaintiff had several risk factors for coron ary artery disease, including smoking, hypertension and elevated cholesterol. He further stated that activity generally does not cause coronary arter y disease, but2 Hyperlipidem ia is a gene ral term denoting elevated c oncen trations of f at in the plas ma. Taylor, Elizab eth J., Dorland’s Illustrated Medical Dictionary(27th Ed. 1988). -4- activity can bri ng on a heart attack or ang ina, a symptom of blockage of the arteries. He finally conceded that he did not know what part job stress played in the plaintiff’s heart disease.
Dr. H. L. Thomas, a family practitioner, testified that he ha d treated Krick since 1978 and had not found any evidence that the plaintiff had coronary artery disease. He

stated that, in his opin ion, stress could lead t

o a coronary

spasm, which could cause a compl ete blockage of the arteries.He stated that activit y does not cause coronary ar tery disease, but could c ause a coronary spasm.

Dr. Robert Hardin, th e surgeon who perfo rmed Kric k’s bypass surgery, testified that prior to the surgery Krick had a 90 percent blockage of the left m ain artery, 70 percent blockage of the mid-left anterior des cending artery, 80 per

cent blockage of the first obtuse marg inal artery, and complete occlusion of the right coronary artery. He also testified that there were multiple factors involved in Krick’s coronary artery disease, and that stress was one of the factors. Dr. Hardin testified that after his recovery, Kric

k had sustained a 15 percent impairment based on the Fourth Edition of the Guidelines to Permanent Impairment , published by the American Medical Association.
Dr. Laurence A. Grossman, a Nashville cardiologist, did not treat Krick, but reviewed his medical records and the depositions of the plaintiff and Drs. Khatri and Hardin. Dr. Grossman stated that the plainti ff had “long-standing coronary heart disease, ” as demonstrated by the car diac catheterization and coronary arteriogr

aphic study performed by D r. Mayes. He testi fied that the three main fa ctors establish ing coronary heart d isease are cigaret te smoking, hypertension, and hyperlipidemia 2 . Dr. Grossman emphasiz ed that Krick did not have a heart attack, but had s evere angina, whic

h resulted from the blocked arteries. Dr. Grossman testified that the August 24, 1993 inciden t did not cause-5- or aggravate Kri ck’s coronary arter y disease. The stress may have aggravated the symptoms of the disease, the ang ina, but did not cause the diseas e.
After considering the evidence, the trial court found that Krick’s coronary artery disease arose out of and in the course and scope of his employment, and that he had sustained a 37 1⁄2 perc ent vocational occupational disability.
On appeal, the Special Workers’ Compensation Appeals Panel found that the evidence preponderates against the finding that the pla intiff’s coronary artery disease arose out of his employ ment. The Panel therefore revers ed and dismissed the case. We granted the motion for full court review and now affirm the Panel’s findings of fact and conclusions of law for the reaso ns articulated below.

COMPENSABLE INJURY In workers’ compensati on cases, the scope of review in this Court on issues of fact is de novo upon the record of the trial c ourt, acc ompanie d by a presumption of the correctness of the findings, unless the preponder ance of the evidence is otherwi se. Tenn. Code Ann. § 50-6-225(e) (2)(Supp. 1996); Lollar v. Wal-Mart Stores, Inc ., 767 S.W.2d 143 (Te nn. 1989). Considerable deference must be accorded the trial co urt’s factual findings on is sues related to the credibility of witnesses and the weight t o be given their testi mony. Humphre y v. David Witherspoon, Inc ., 734 S.W.2d 315 (Tenn. 1987). However, w here the issues involve expert medical testimony and all the medical proof is contained in the recor d by depos ition, as it is in this case, the n this Cou rt may draw it s own conclusions about the wei ght and credibility of that testimony, since w e are in the same position as the trial j udge. Orman v. Williams Sonoma, Inc. , 803 S.W.2d 672, 676-77 (Tenn. 1991). With these principle s in mind, we revi ew the record to determine whether the evi dence preponderates against th e findings of the trial court.-6- In support of his position that his heart disease was an accidental injury suffered during the course of his employment, Krick relies upo n the statutory presumption of causation contained i n Tenn. Code Ann. § 7-51-201(a)(1 ). The statute “establishe[s] a pr esumption that any impairment of heal th of [a] law enforcement officer[ ] caused by hypertension o r heart disease resulting in hospitalization, medical treatment or any disability, shall be presumed (unless the contrary is show

n by competent medical evi dence) to have occurred or to be due to accidental injury suffered in the course of em ployment.” In order to rely upon the presumption created by Tenn. Code Ann . § 7-51-201(a)(1), Krick must show that (1) he was

employed by a regular law enforcement department; (2) he suffered from hypertension or heart disease resulting in ho spitalization, medical treatment or disability

in the course of employment; and ( 3) prior to the injury

he had been given a physi cal examination whic h did not reveal the heart disease or hypertension. Stone v. City of McMinnville , 896 S.W.2d 548, 550 (Tenn. 1995). Once the prerequisites a re established, then the presu mption exists. In order to overcome the presumption, “there must be affirmative evide nce that there is not a substantial causal connecti on between the work of the empl oyee so situated and the occurrence upon which the claim for benefits is base d.” Id

. See also Wingert v. Government of Sumner County , 908 S.W.2d 921 (Tenn. 1995). In other words, there must be “competent medical evidence” that there is a not a substantial causal connecti on.
In this case, the record es tablishes the three prereq uisites necessary to establish the presumption that the coronary artery disease was an accidental injury suffered in the cours e of employment. Clearly,Krick was a polic e officer and he suffered the angina in the cour se of his work. Moreov er, he testified that he had never been told, despite several physical

examinations, that he suffered from coronary artery disease.-7- The issue in this case, therefore, is whether there is competent m edical evidence that there is not a substantial causal connection between Krick’s work as a police officer and the coronar y artery disease. We agree with the Special Panel that there is. Accor dingly, the defendant has ov ercome the presumption of causation.
In this case, Dr. Grossman, a qualified cardiologist, stated that job stress played no role in Kric

k’s coronary arter

y disease. He stated that the disease was caused by cigarette s moking, hypertension, and hyperlipidemia. This tes timony is affirmative evidence th at there is not a substantial causal connection between Krick’s work and his heart disease. Moreover, we note that the heart disease consisted of one completely blocked and three substa ntially blocked coronary arteries. Dr. Gross man testified that it was appar ent from the tests performed by Dr. Mayes that the dis

ease was long-standin g. The chest pain experi enced by the plaintiff at the time of the August 24 , 1993 call was a symptom of the heart disease, not

the disease itself. Mor eover, it defies common s ense to assume that Krick’s arteries

became occluded as a result of the stress involved i n the August 1993 call.
As the Special Panel recog nized, once the presumption of cau sation established by Tenn. Code Ann. § 7-51-201(a)(1) is rebutted by the def endant, it disappears, and the plaintiff must pr ove, by a preponderance of the evidence, that his condition resulted from an injury by acci dent arising out of and in the course of his employment. Thus, Krick was required to prove that his heart disease was an injury

by accident.
Occupational disease is an i njury by accident. Tenn. Code Ann. § 50-6- 102(a)(5). According ly, in this case, Kr ick’s heart disease is

deemed to be an occupational disease if it ar ose out of and in the course of his empl oyment. However, heart dis

ease arises out of employment onl y if (1) the disease can be-8- determined to have followed as a natural incident of the w ork as a result of the exposure occasioned by the nature of the employment, (2) it can be fairly traced to the employment as a proximate cause, (3) it has not originated from a ha zard to which the worker

would have been equall y exposed outside of the employment, (4) it is i ncidental to the character of the employment and not independent of the relatio n of employer and employee , (5) it or iginated fr

om a risk connected with the employment and flowed from that sou rce as a natural consequence, though it need not have been foreseen or expecte d prior to its contraction, and (6) there is a direct causal connec tion between the disease and conditions under which the work is performed. Tenn. C ode Ann. § 50-6-301.

We find that the evidence preponderates against a finding that Krick’s heart disease arose in the c ourse and scope of his employment. The medical evidence does not establis h a causal connection betwee n the conditions of Krick’s work and hi s coronary artery disease. Indeed, the evidenc e establishes that the disease was inst ead primarily caused by hypertension, cigar

ette smoking, and hyperlipi demia.
We have held that heart attacks are gener ally compensable as acci dental injuries when they are precipitated by physical exertion or strain or a specific incident or series of inci dents involving ment al or emotional stress of an unus ual or abnormal nature. Bacon v. Sevier Count y , 808 S.W.2d 46 (Ten n. 1991); Stone v. City of McMinnville , supra . The key to recovery in instances where it is alleged that physical

activity caused the

heart attack, is whether “the disabling heart attack is precipit

ated by the physical ac tivity or exer

tion or physical str

ain of the employee’s job.” Id. at 552, quoting Bacon , 808 S.W.2d at 50. In instances where the plaintiff asserts that emotional stress caused the heart attack, the disabling condition “mus t be immediately precipit ated by a specific acute or sudden stressful event.” Stone v. City of McMinnville , 896 S.W.2d at 552, quoting Bacon , 808 S.W.2d at 52.-9- In this case, Krick did not experience a heart attac k; he experienced angina, a symptom of heart dise ase. The angina may have been caused by the stress of the August 1993 inci dent; however, Krick’s disability ar ose from the heart disease, not the chest pai n. The medical proof preponderates ag ainst a finding that the heart disease was precipitated by the August 1993 incident. Thus, Krick has failed to establ ish the compensability of hi s heart disease.

CONCLUSION We therefore conclude that the evidence in thi s record preponderates against the trial cour

t’s finding that Krick s ustained a compensable injury by accident. The judgment of the tria l court is revers ed and the case dismissed. Costs on appeal are taxed t o the plaintiff/appellant.

E. RILEY ANDERSON, JUSTICE
Concur: Birch, C.J. Reid and Holder, JJ. Drowota, J., Not Participating