State Ex Rel. Wyoming Worker's Compenstion Division v. Van Buskirk

BROWN, Justice,

dissenting.

According to the majority, appellee is entitled to worker’s compensation benefits under § 27-12-603(b), W.S.1977 (June 1983 Replacement), which addresses compensation for work-related coronary injuries. In Claim of McCarley, Wyo., 590 P.2d 1333 (1979), this court identified criteria required for recovery of compensation under the statute. The first of these states:

“The claimant must establish a period of employment stress unusual or abnormal for employees in claimant’s occupations.” Id., at 1335.

Appellee fails to meet this criteria, as the record reveals no evidence indicating he performed duties that were unusual or abnormal for a rural community police officer on the day of his heart attack. All of the witnesses, which included Kaycee police officers and appellee himself, admitted that his activities were expected of persons in his position, although they were not everyday duties because fires in Kaycee are fairly rare and in some respects a social event. As a result, appellee failed to establish the *574legal causation required by this court for recovery under the statute. Section 27-12-603(b); and Claim ofMcCarley, supra.

A brief review of the statute’s legislative history is relevant in addressing its application. Over the last seventeen years the legislature has developed standards which place an increasing burden of proof on the claimant. Before 1969 there was no specific statute concerning worker's compensation and coronary injury; one had only to prove medical and work-related causation. In Claim of Vondra, Wyo., 448 P.2d 313 (1968), this court encouraged the Wyoming legislature to set specific standards for coronary-related compensation cases. The 1969 legislature responded by setting a standard requiring that a compensable heart attack be the result of work “ * * * unusual to * * * the individual employee, in that particular employment.” Ch. 200, § 15, S.L. of Wyoming. Justice Rose, in his majority opinion in Mor, Inc. v. Haver-lock, Wyo., 566 P.2d 219 (1977), expressed dislike for the new “unusual exertion rule,” but indicated that the statute would be applied according to legislative intent. Thus, the subjective test was based on whether or not exertion was unusual for that employee in his position. Id. In 1977, the legislature, in an apparent attempt to limit worker’s compensation coronary claims, changed the law to require that the work-related exertion causing the injury must be “ * * * unusual to, or abnormal for, employees in that particular employment. * * *” (Emphasis added.) Ch. 142, § 27-361, S.L. of Wyoming.

By broadening the comparative standard to include duties generally encompassed in all jobs of that nature, the legislature indicated a clear intent to limit coronary compensation claims to exertion unique or “abnormal” for that type of work. This court recognized and applied this rule in another case concerning a police officer. The standard in that case indicated that if the pre-injury duties were expected of rural law enforcement officers, no legal causation was established. Creek v. Town of Hulett, Wyo., 657 P.2d 353 (1983).

The majority in this case determined that sufficient evidenced existed to indicate Mr. Van Buskirk’s coronary was a result of unusual exertion for small town police work, i.e., such activities would not be expected of him or other rural officers. While the question of usual or unusual work-related stress is a question of fact for the trial court, it must be supported by substantial evidence. Creek v. Town of Hulett, supra', and Mor, Inc. v. Haverlock, supra. Although we consider appellee’s evidence in the light most favorable to him, the claimant has the burden of proving each essential element of the claim. Nuanes v. State, ex rel. Worker’s Compensation Division, Wyo., 694 P.2d 86 (1985); and Alco of Wyoming v. Baker, Wyo., 651 P.2d 266 (1982).

After carefully reviewing the record, I find that appellee simply failed to present any evidence that suggests his duties were outside of the activities expected for persons in his position. Creek v. Town of Hulett, supra. Testimony indicates that rural police officers routinely respond to fire calls and assist in traffic and crowd control, facilitating the arrival of emergency equipment and volunteers. They also perform other tasks to assure community safety in these situations. No job description or other documents citing usual law enforcement tasks were produced. Excerpts from the trial record indicate that other witnesses and appellee thought the duties performed were not unusual.

“Q. [Crank]: Is that pretty normal duty for a fireman to go to a fire scene?
* * * * * *
“For a policeman to arrive at a fire scene?
“A. [Van Buskirk]: I believe that is pretty normal for a police office to go to a fire scene.
* * * * * *
“Q. [Crank]: [referring to an earlier fire] Did you go to that fire scene?
“A. [Van Buskirk]: Yes, I did.
“Q. [Crank]: Did you have occasion to direct traffic around that scene?
*575“A. [Van Buskirk]: I directed some traffic around that fire and also assisted in moving furniture from the burning residence.
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“Van Buskirk: [referring to the fire activity] * * * [W]hen I went out to the landfill to get the maintenance man to come down and man the city truck, I had to do some fast driving at that time being alert and concerned about not running into anybody.
“The Court: Have you ever had to do that in the course of your duties normally?
“Van Buskirk: I have done this many times in the course of my duties.
* * * * * 5ft
“Q. [Goddard]: [regarding appellee’s activities in response to the fire] I assume you did what you did because you felt it was important under the circumstances.
“A. [Van Buskirk]: I feel that that is part of my duties as a public servant ás a police officer.”

The former and current Kaycee Chief of Police note similar duties.

“Q. [Jarvis]: Did you ever direct traffic for fires?
“A. [Young]: [current police officer] Yes, one time.
******
“Q. [Jarvis]: Did you respond to the fire itself?
“A. [Young]: I responded to the fire.
* * * * * *
“Q. [Jarvis]: Is one of your duties involving the directing of traffic?
“A. [Waters]: Yes, it is.
“Q. [Jarvis]: Including the directing of traffic in the event of a fire?
“A. [Waters]: Yes, it is.”

No witness or evidence contradicted this testimony that indicated appellee’s activities were other than ordinary for his particular employment.

This court has held that it will reverse a factual determination if little or no evidence supports the judgment, especially when no evidence is in conflict. Matter of Van Matre, Wyo., 657 P.2d 815 (1983). Although the question of whether exertion is unique for one’s employment is usually left to the judgment of the trial court, we cannot allow worker’s compensation benefits to extend to injuries which do not meet the intent of Wyoming’s statutory language. Aleo v. Baker, supra-, and Mor, Inc. v. Haverlock, supra.

I would reverse, since appellee failed to carry his burden of proving he is entitled to worker’s compensation.