The Indiana Supreme Court was recently asked to revisit the issue of whether a heart attack suffered by an employee while working was compensable under Indiana worker’s compensation law. The case was Bertoch v. NBD Corp. and U.S. Security, Inc., 813 N.E.2d 1159 (Ind. 2004). In the Bertoch case, the Indiana Supreme Court reversed a decision by the Full Worker’s Compensation Board of Indiana and determined that an employee’s death by reason of a heart attack was sufficiently connected to his employment so as to allow the employee’s widow to recover worker’s compensation benefits. It is the purpose of this article to discuss the specifics of the Bertoch case and consider whether it signals a change in how heart attack cases are analyzed and decided in Indiana.
Before discussing the Bertoch case and related issues, it is instructive to first (and briefly) review the manner in which heart attack cases in Indiana have historically been analyzed. The starting point for this review is the case of United States Steel Corporation v. Dykes, 154 N.E.2d 111 (Ind.1958). The employee in the Dykes case had a job that involved heavy lifting and a considerable amount of physical activity. On the day in question, the employee was fine when he got to work but, after working for a few hours, he collapsed and died. There was no evidence that the employee had an increased workload that particular day. The cause of the employee’s death was determined to be coronary heart disease that was of longstanding duration.
The issue, in the Dykes case, was whether the employee’s heart attack was compensable under Indiana worker’s compensation law. The Indiana Supreme Court, in the Dykes case, determined that the employee’s heart attack and consequent death was not a compensable event. In coming to this conclusion, the Court relied upon I.C. Section 22-3-2-2, which states that entitlement to worker’s compensation is conditioned upon injury or death "arising out of . . . employment". The Court, in Dykes, reasoned that this "arising out of" language necessitates something more than the performance of the employee’s usual and routine tasks to render a heart attack compensable. The Court viewed the compensability issue as one involving causation, that is, whether the employee’s heart attack resulted from an increase in the workload beyond the employee’s heart’s ability to function or whether the heart attack was brought on simply by a decrease in the employee’s heart’s ability to meet an unchanged demand at work. The Court, in Dykes, determined that it was the latter and ruled that the employee’s heart attack did not arise out of his employment and was, therefore, not compensable under Indiana worker’s compensation law.
It is worthwhile, from a historical perspective, to next consider the case of Harris v. Rainsoft of Allen County, Indiana, 416 N.E.2d 1320 (Ind.App.1981). This case involved a situation where an owner/employee of a business suffered a heart attack on the day that his business was damaged by fire. The employee/owner had a history of heart disease and had, previous to his death, suffered a heart attack. Nevertheless, the Court, in the Harris case, ruled that the owner/employee was entitled to death benefits under Indiana worker’s compensation law. In so ruling, the Court recognized that the fire was an event that exceeded the normal work routine for the owner/employee. The Harris case did not break new ground because, like the Dykes case, the Court looked for (and found) a stimulus beyond regular work, namely, a fire at the owner/employee’s business premises. Nevertheless, the Harris case is generally viewed as one that pushed the compensability envelope in that the stimulus that caused the heart attack was not physical but emotional. More specifically, it was not the physical exertion of fighting the fire that caused the work injury but, rather, the shock and emotional distress of the fire itself.
It should be noted that both of these cases, Dykes and Harris, have, on occasion, been criticized because they purport to require that a compensable heart attack be the result of an accident. However, a close reading of these decisions shows that the focus is not on an accident but, rather, whether the heart attack arose out of employment, which is, essentially, a causation issue. The message of Dykes and Harris is that causation requires more than that the heart attack occurred at work.
This same approach was followed in another heart attack case decided approximately thirteen years ago, Jablonski v. Inland Steel Co., 575 N.E.2d 139 (Ind.App 1991). In the Jablonski case, the employee was sitting at his desk working when he began having chest pains and breathing difficulties. An ambulance was called and the employee was transported to the hospital. En route, the employee became unconscious and he died soon thereafter. The employee was only 37 years old and he had no history of heart disease. However, it was later determined that the employee died from a heart attack and that he suffered from various undiagnosed heart ailments. In the Jablonski case, the Indiana Court of Appeals determined that the heart attack suffered by the employee did not arise out of his employment. In coming to this conclusion, the Court relied heavily upon the fact that the employee was performing his usual everyday tasks when he began having chest problems and that there was no work event or stimulus (physical or emotional) that created additional strain on the employee’s heart.
This same rationale justified a finding of non-compensability in Smith v. Bob Evans Farms, Inc., 754 N.E.2d 18 (Ind. App. 2001). The Smith case dealt with a heart attack suffered by an area director for the Bob Evans Restaurant chain during a working lunch with other employees. The Indiana Court of Appeals, in Smith, determined that the employee was not entitled to worker’s compensation benefits because the employee was doing nothing out of the ordinary when the heart attack occurred. Again, compensability required something more than the fact that the heart attack occurred at work.
Which leads us to the most recent appellate court decision involving a heart attack, that is, the aforementioned Bertoch case. In Bertoch, the employee in question was working as a security guard at a building where a fire had broken-out. The employee was found dead on a landing between floors by fire and rescue personnel. It was determined that the employee died from cardiac arrest. The evidence was conflicting as to whether the employee died while engaged in an effort to alert someone to the fire or extinguish same. The Single Hearing Member of the Indiana Worker’s Compensation Board awarded benefits to the employee’s widow, finding that the employee’s death arose out of his employment. The Full Worker’s Compensation Board reversed this decision, finding that the employee’s death was not clearly connected to his work-related activities as a security guard. The Full Board ruling was affirmed on appeal to the Indiana Court of Appeals. An appeal to the Indiana Supreme Court followed and the Indiana Supreme Court reversed the Full Board decision.
The Indiana Supreme Court, in Bertoch, determined that the employee’s heart attack was a compensable event under Indiana worker’s compensation law. While acknowledging that the employee had significant preexisting heart disease, the Court found that the fire and the employee’s reaction to it was the causative event with respect to the heart attack. The Court, furthermore, determined that this event was sufficient to meet the "arising out of" requirement to render the heart attack compensable.
This ruling in the Bertoch case does not appear to change the essential causation requirement of previous heart attack cases--that there must be something more than the usual employment routine to render a heart attack compensable. After all, a fire is something out of the ordinary. While it would be anticipated that a security guard would be required to deal with situations that might be inherently stressful, such as break-ins and other types of mischief, it is more probable that the duties would be considerably more mundane, such as checking to see whether doors were locked, whether lights are turned off and whether tenants have signed in-and-out of a building. Presumably, if the security guard in the Bertoch case had simply suffered a heart attack while engaged in his normal rounds, there would be no compensable event under Indiana worker’s compensation law. This was not the situation. In Bertoch, there was a fire and this would be expected to increase the stress and anxiety of any one in the building, including the security guard (particularly if the security guard became engaged in efforts to quell the flames). This is exactly the type of stimulus, over and above normal work activities, that courts have historically focused on when analyzing the compensability of a heart attack. Thus, as noted above, the ruling in the Bertoch case does not appear to have broken any new ground in the realm of heart attack cases. In fact, it is very similar to the Harris case, decided back in 1981 and discussed previously herein, involving a situation where the owner/employer suffered a compensable heart attack when his business burned.
There are a couple of troubling aspects to the Bertoch case. First, like several previous cases, it misinterprets the Dykes decision by stating that Dykes stands for the proposition that a heart attack, to be compensable, must be preceded by some untoward or unexpected accident. As discussed previously herein, Dykes does not require an accident (at least not in so many words). The Dykes case (like many other heart attack cases that followed, including Bertoch), does, however, require that there be some causative element over and above the normal work routine in order to render a heart attack compensable under Indiana worker’s compensation law.
Perhaps a more troubling aspect of the Bertoch case is the Indiana Supreme Court’s willingness to reweigh evidence and judge credibility of witnesses, in disregard of its own admonition that it should not do so. In Bertoch, the Indiana Supreme Court took issue with the finding of the Full Worker’s Compensation Board that the employee’s heart attack could have occurred at any time (including at home) and that it was simply a coincidence that the heart attack occurred at the time of the fire. As stated above, the Indiana Supreme determined that the fire was the event that caused the employee’s cardiac arrest. This determination was a factual one and was contrary to the Full Board’s findings in that regard. This area should have been off-limits to the Indiana Supreme Court.
These criticisms aside, the fact remains that after Bertoch, causation, as a required element of proof in heart attack cases, is alive and well. By so ruling, the Indiana Supreme Court has reaffirmed a fundamental precept of the Worker’s Compensation Act, which is that it is not intended to provide a remedy to an employee for injuries or conditions resulting from risks which do not have their origin in occupational activities. Following Bertoch, it is still incumbent upon the worker to establish, from a medical and/or factual standpoint, that there was some event or stimulus, beyond the normal work routine, that resulted in the heart attack. Stated another way, a heart attack still is not deemed compensable under Indiana worker’s compensation law simply by showing that it occurred while the employee was at work.