MWCC NO. 98-01495-G-2034

TROY S. PICKENS, JR.                                                                                                                                                                                       CLAIMANT

VS.

MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY                                                                                                                                     EMPLOYER
(SELF-INSURED)

REPRESENTING CLAIMANT:
William O. Rutledge, III, Esquire, New Albany, MS

REPRESENTING EMPLOYER:
Natie Caraway, Esquire, Jackson, MS

This matter was heard by the Commission on September 17, 2001 pursuant to the Employer's Petition for Review. The Employer has gone to great lengths to try and convince the Commission that the Order of the Administrative Judge entered June 4, 2001 should be reversed, and that the claim of Troy Pickens for workers' compensation benefits as a result of a heart injury should be denied.

This is a hotly contested claim which raises the question of whether Mr. Pickens has sustained a compensable injury, and if so, whether and to what extent he has been disabled as a result of this injury. The only agreement among the parties is that Mr. Pickens was earning a salary of $42,000.00 per year at the time of his injury which computes to an average weekly wage of $807.69 for compensation purposes. Miss. Code Ann. §71-3-31 (Rev. 2000) (average weekly wage determined by dividing earnings for the 52 weeks prior to injury by 52).

Mr. Pickens is approximately 52 years old. He graduated from the University of Mississippi with a degree in public administration in 1972. He graduated from the Mississippi Highway Patrol training academy in 1973 and became a member of the Patrol. Since becoming a State Trooper, Mr. Pickens completed numerous seminars and training courses including the renowned FBI National Academy training program at Quantico, Virginia.

Mr. Pickens worked as a trooper until 1987 when he was promoted to the Criminal Investigation Bureau of the Department of Public Safety. In 1993 he was promoted to Lieutenant and served in that capacity until his retirement in April 1997.

As Lieutenant, Mr. Pickens stated that he routinely worked 12 to 14 hour days, and 90 to 100 hour weeks performing and supervising criminal investigations.  He supervised four other officers in his district. This made him responsible for keeping up with all of his employees' hours, case files, court dates and general whereabouts, and keeping the headquarters in Jackson fully informed of the activities under his command. These duties were in addition to the investigations he was personally responsible for conducting.

Mr. Pickens testified that he carried a pager with him 24 hours a day and was considered on call any time of day or night. The Department confirmed he was on call 24 hours per day, 7 days per week. He stated he frequently received calls or pages outside what most people would consider the normal work day. He described himself as a perfectionist who insisted that the work over which he was responsible be conducted to the highest and best degree.

The injury that Mr. Pickens seeks benefits for occurred on or about March 31, 1996. It was on this occasion that Mr. Pickens suffered a near heart attack, and on April 3, 1996 he underwent open heart bypass surgery to address this problem. He had a subsequent heart attack in November 1996 which he claims is related, and has undergone numerous hospital stays and treatments.

Mr. Pickens stated that in the week leading up to his first near heart attack, Monday was what he described as a regular day. On the Tuesday before, he left for Jackson about 5:00 a.m. to attend a meeting at headquarters and returned to New Albany that afternoon. That night he assisted one of his officers on a drug detail in Noxubee County. Mr. Pickens stayed up all night on this detail, and participated in a raid pursuant to a search warrant that continued until Wednesday afternoon. He and his officer did not return to their duty stations until mid-afternoon on Wednesday.

Later that same Wednesday afternoon Mr. Pickens received a call from the Sheriff in Alcorn County about a body that had been found in a wooded area. He responded to this call and spent all night Wednesday, all of Thursday and most of Friday investigating this discovery. He did not return home until late Friday afternoon. Mr. Pickens had thus gone without any appreciable sleep since the previous Monday night.

Mr. Pickens stayed in fairly constant contact with one of his officers through Friday night and into Saturday because of a homicide that had occurred in the district and was being investigated. At around 5:00 a.m. or 5:30 a.m. Sunday morning, Mr. Pickens suffered his cardiac event which was initially described as a heart attack, though one of treating physicians later said it was not, technically, a heart attack.

In any event, Mr. Pickens underwent heart surgery in April 1996 and thereafter returned to work for the Department of Public Safety. He testified that for the first couple of months he was allowed to take it easy, to come and go as he pleased. In November 1996, however, after Mr. Pickens had resumed his normal routine, he suffered a heart attack. In April 1997, in the interest of his health, Mr. Pickens retired from the Highway Patrol.

In June 1997 Mr. Pickens was hired by the Union County Sheriff's Department as an investigator and assigned to a drug task force. He earns $24,000.00 per year in this job which he describes as significantly less stressful than his previous job with the Patrol. In his current job, Mr. Pickens has no supervisory responsibilities and no fixed schedule for that matter. He goes home for lunch, he gets plenty of sleep, and he isn't on call 24 hours per day, 7days a week.

Lieutenant Colonel Jim Boxx, Director of the Criminal Investigation Bureau for the Department of Public Safety, was Mr. Pickens' direct supervisor. Prior to giving his testimony, he reviewed case files dating from October 1995 through March 1996 which related to the New Albany district where Mr. Pickens' was assigned. He identified a total of 61 cases that were originated in Mr. Pickens' district during this six month period and testified that only six of these files mentioned Mr. Pickens' by name as having been assigned the case or having assisted in the case investigation. He acknowledged, however, that Mr. Pickens bore the ultimately responsibility for managing these case files.

Mr. Boxx also disputed Mr. Pickens' testimony that he routinely worked near 100 hours per weeks. Mr. Boxx admitted, however, that someone in Mr. Pickens' position would find it very hard to work less 10 hours per day, and that he had no way of knowing how many hours per week Mr. Pickens' devoted to his work other than the hours Mr. Pickens actually recorded on a time sheet. Mr. Boxx testified that it would not surprise him at all if Mr. Pickens worked far in excess of the 171 hours he was expected to log every 28 days. He acknowledged that Mr. Pickens had a stressful job.

Mr. Pickens' wife was available to testify but the parties agreed that her testimony would have corroborated that of her husband.

Dr. Thomas Shands practices internal medicine in New Albany and treated Mr. Pickens beginning in 1998. He noted that Mr. Pickens suffers from coronary artery disease which was precipitated his near heart attack in March 1996. Dr. Shands characterized Mr. Pickens as having several risk factors for coronary artery disease, among them being that he is a smoker, a diabetic, hypertensive, has a family history for heart disease, and that he was under a significant amount of stress with his job at the Department of Public Safety.

Dr. Shands testified that the significant work related stress experienced by Mr. Pickens definitely put him at increased risk of develpping heart disease and associated cardiac events. He termed the stress one of Mr. Pickens' "major" risk factors. Dr. Shands also testified that credible medical and scientific literature confirm the link between stress and heart disease. He was of the opinion that the stress from Mr. Pickens' job "definitely" contributed to the development of his heart disease and associated heart problems, along with the other significant risk factors mentioned above. Dr. Shands recommended that Mr. Pickens retire from law enforcement and avoid such stressful situations if at all possible.

Dr. Kenneth Bennett, a cardiologist, testified by deposition as to the nature of Mr. Pickens' condition and the causal relationship, if any, between his work and his heart problems. Dr. Bennett did not treat or examine Mr. Pickens but did undertake a review of all pertinent medical records at the request of the Employer.

Dr. Bennett agreed with Dr. Shands that Mr. Pickens was at heightened risk of heart disease and related problems based on family history, smoking, high blood pressure, diabetes, and abnormal cholesterol. He termed these the five "major" risk factors for heart disease and problems. As for mental or emotional stress, Dr. Bennett agreed this too was a risk factor, but he did not consider it one of the "major" risk factors. Dr. Bennett also agreed in general with the notion that stress reduction can reduce the incidence of second heart attacks and death, and he testified that he always recommends stress reduction, among other things, to his own heart patients.

Concerning stress and its part in contributing to heart disease and other heart problems, Dr. Bennett stated that it would be impossible to quantify a general stress level that is unacceptable because stress is a subjective factor that can't effectively be measured. He conceded that a physician who has an on-going treatment relationship with a patient is generally in a better position to determine the level of his patient's stress, and its effect on the patient's condition, than a physician who has never seen or talked to the patient. Importantly, Dr. Bennett agreed that stress would have to be considered as "contributing to some degree" to Mr. Pickens' condition, although he did not consider it a "root" cause of Mr. Pickens' heart problems. Dr. Bennett acknowledged that he might give stress more significance in this case if had personally known and treated Mr. Pickens.¹

The Employer spends a lot of time trying to convince us that Mr. Pickens was a bona fide candidate for heart disease and other heart problems based on risk factors other than the stress from his job, and as such, should be denied workers' compensation benefits. Unmindful, apparently, of the Law's rather liberal test of compensability which holds an injury compensable "if the employment aggravates, accelerates, or contributes to" the injury in some reasonable degree, the Employer would have us deny benefits to Mr. Pickens because there are factors other than work related stress which can be said to have contributed to Mr. Pickens' condition in perhaps some greater degree than stress. Fought v. Stuart C. Irbv Co., 523 So.2d 314, 318 (Miss. 1988); Miss. Code. Ann. §71-3-3(b) (Rev. 2000).

The Employer repeatedly emphasizes Dr. Shands' opinion that Mr. Pickens would probably have suffered the same type of injury even if he did not suffer from work related stress. In so doing, however, the Employer consistently ignores Dr. Shands' opinion that work related stress definitely was a significant contributing factor in his injury. Even the Employer's own expert, Dr. Bennett., agreed that stress contributed to some degree to Mr. Pickens' condition.

The Employer also argues at length that Dr. Shands' opinion is flawed because based on a hypothetical question presented by Mr. Pickens' attorney which the Employer contends is itself not based on the credible evidence presented in this cause.² In the Employer's words, "it is glaringly obvious that the hypothetical question relied upon by the Claimant is totally inadequate as a matter of law" because it contains facts contradicted in the record, and such a question "cannot be a basis upon which benefits ill be paid in this case."

The short and easy answer to the Employer's argument is that regardless of the factual accuracy of the hypothetical, Dr. Shands made it clear under questioning from the Employer's own attorney that his opinion as to the nature and cause of Mr. Pickens' condition, and his "connection of the stress problem," was made through his interviews with and treatment of Mr. Pickens, "and not through the hypothetical" that was presented to him by Mr. Pickens' attorney.

In the end, the evidence is quite convincing to us that Mr. Pickens' employment with the Department of Public Safety was stressful "over and above the ordinary wear and tear of life," and that this employment contributed to or aggravated his heart condition in a significant manner. Hardin's Bakeries v. Harrell, 566 So.2d 1261, 1264 (Miss. 1990); Miss. Code Ann. §71-3-3(b) (Rev. 2000). We are not compelled to find otherwise by the presence of other risk factors which also contributed to this injury. Both Dr. Shands and Dr. Bennett agreed that work related stress was a contributing factor in this case, their opinions differing only as to the degree of contribution.

We are likewise undeterred in our finding by the fact that Mr. Pickens' near heart attack on or about March 31, 1996 occurred while he was at home. Mr. Pickens was admittedly on call and on duty 24 hours per day, 7 days a week. There is absolutely no evidence to show that at the time this injury occurred Mr. Pickens had in any way abandoned his employment to the extent we might conclude his near heart attack was completely unrelated to his employment. Dunn, Mississippi Workers' Compensation §180 (3d ed. 1982). The Administrative Judge's finding that Mr. Pickens suffered a compensable injury as alleged in his Petition to Controvert is therefore affirmed.

Dr. Shands recommended that Mr. Pickens retire from law enforcement work, the only work Mr. Pickens had ever known. In fact, Dr. Shands wrote on October 23, 1998 that he considered Mr. Pickens totally disabled from any type of work. It is thus clear that Mr. Pickens' injury left him with significant restrictions, but despite these limitations Mr. Pickens retired from his employment with the Highway Patrol and obtained similar but noticeably less stressful employment with the Union County Sheriff's Department.

This employment pays the Claimant $24,000 per year and it appears from the record that Mr. Pickens is wholly capable of performing this work in spite of his previous injury and in spite of his doctor's recommendation to the contrary. Under the circumstances, this employment creates a strong, though not conclusive presumption that Mr. Pickens' has an earning capacity commensurate therewith. Moreover, there is no evidence presented which would adequately rebut this presumption. Thus, we consider Mr. Pickens' employment with the Union County Sheriff's Office truly indicative of his post injury earning capacity. Dunn, supra at §67.

The Employer argues that we should also include the retirement benefits which Mr. Pickens is receiving as part of his post injury earnings and find that his post injury earning capacity is greater than the wages he earned prior to injury. As previously mentioned, Mr. Pickens had more than enough years of service with the Department of Public Safety to qualify for retirement, and in the interest of his health, he retired from the Department April 30, 1997.  He testified that his retirement income is somewhere between $2,200.00 and $2,300.00 per month.

The problem with Employer's argument is that Mr. Pickens's retirement income is an earned benefit to which he became entitled based on his past service with the Department of Public Safety. These benefits in no way provide any meaningful indication or measure of his "capacity to earn" wages post injury. It is, after all, the loss of Mr. Pickens' "capacity to earn" that we are trying to quantify, and not simply the amount of income, both earned and unearned, that he may have. The Administrative Judge rightfully refused to consider retirement income when determining the extent of Mr. Pickens' lost earning capacity.

Comparing, then, Mr. Pickens' wage earning capacity after the injury with the wages he earned prior to the injury, we are led to the conclusion that Mr. Pickens has sustained a permanent loss of wage earning capacity as the result of his injury in the amount of $18,000 per year. This is equivalent to a $346.15 per week loss of wage earning capacity which would in turn entitle Mr. Picke~'to permanent partial disability benefits at the rate of 2/3 of this amount, subject to any apportionment which may be found necessary in this case. Miss. Code Ann. §§71-3-17(c)(25), 71-3-37 (Rev. 2000).

The only other issue of any consequence in this case is one of apportionment. Unquestionably, Mr. Pickens suffered from pre-existing heart disease that is due to other non employment factors in addition to stress. Even though this condition was not occupationally disabling prior to the injury in this case, apportionment may still be ordered despite the enormous difficulty which inheres in such a determination in cases like this where the medical experts are unable to assign specific percentages of contribution to factors other than those which are work related. Hardin's Bakeries, 566 So.2d at 1265.

The Administrative Judge took all of the testimony and evidence into consideration and concluded that Mr. Pickens' injury was at least 50%due to non work related factors, and that his benefits should be apportioned accordingly. Given the nature of the evidence in this case and the state of the record, we are hardly in any better position to question this determination. We therefore accept the Judge's finding that Mr. Pickens' benefits for permanent disability should be apportioned by 50% in accordance with Miss. Code Ann. §71-3-7.

The Order of Administrative Judge entered June 4, 2001 is hereby affirmed in all respects, except that the award for permanent partial disability benefits is hereby amended to provide that Mr. Pickens is entitled to permanent partial disability benefits at the rate of $115.39 per week for a period of 450 weeks. This sum represents 2/3 of Mr. Pickens' lost earning capacity of $346.15 per week, apportioned by 50%.

SO ORDERED this the 30th day of October, 2001.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BEN BARRETT SMITH, CHAIRMAN
BARNEY J. SCHOBY, COMMISSIONER
LYDIA QUARLES, COMMISSIONER

ATTEST:
Jo Ann McDonald
Commission Secretary
 

1 Importantly, Dr. Bennett also stated that Dr. Shands' training in internal medicine made him as competent as a cardiologist to diagnose heart disease and to render an opinion on the causation of heart disease.

2 This hypothetical question appears at pages 13 to 16 of the deposition testimony of Dr. Shands.