Pitts v. City of Rome

Barnes, Judge,

dissenting.

In my opinion, the administrative law judge applied an incorrect standard of review in his order denying benefits, and therefore I respectfully dissent from the majority opinion.

*282The ALJ stated in his opinion that the evidence showed only a possibility that the decedent’s job stress contributed to his stroke and resulting death, instead of a probability that it did so. The ALJ also held that such a claim is compensable only if the evidence demonstrates that (1) stress contributed to the onset of the injury; (2) the stress was attributable in part to work-related duties; and (3) the duties were the primary, rather than a secondary, contributing cause of the stress.

Regarding the ALJ’s conclusions about the amount of evidence presented, the issue is not whether the evidence showed a possibility versus a probability that job stress contributed to the decedent’s stroke. Rather, the issue is whether a preponderance of evidence shows that it was “attributable to the performance of the usual work of employment.” OCGA § 34-9-1 (4). The facts in this case differ from those in AFLAC, Inc. v. Hardy, 250 Ga. App. 570 (552 SE2d 505) (2001), in which the claimant presented no medical evidence at all that her stressful job contributed to her underlying heart disease. A physician’s report in that case stated only that a stressful work environment can play a role in exacerbating the symptoms of the disease, but could not be clearly implicated for that claimant. Id.

In this case, by contrast, the treating neurologist testified that

[h]is condition, a massive stroke, was exaggerated by his job as a police captain [sic] with the extreme stress and fatigue from this position. His blood pressure and heart condition were also worsened by these work related factors. In all, Mr. Pitts was at risk for major cardiovascular events given his high stress occupation. In addition, his recovery would also be compromised by this degree of physical and emotional load.

While a physician who reviewed the decedent’s records, but never examined him, testified that it was impossible to state that job stress contributed to the stroke, he also testified that one can almost never say stress directly causes a stroke. He further testified that, while stress would not directly cause the embolism that led to the decedent’s stroke, it could affect factors that lead to the formation of an embolism.

As to the ALJ’s conclusion that work stress must be the primary cause of the stroke, we have held to the contrary that “work need be only a contributing factor to a heart injury [or stroke] in order for that injury to be compensable.” (Emphasis supplied.) Phillips Correctional Institute v. Yarbrough, 248 Ga. App. 693, 695 (548 SE2d 424) (2001). The ALJ’s statement in this case that work duties must be the primary cause of the stress that contributed to the injury is *283clearly incorrect, and I would reverse the superior court’s decision affirming the board, which affirmed the ALJ’s denial of benefits.

Decided July 2, 2002. Mundy & Gammage, Miles L. Gammage, for appellant. Brinson, Askew, Berry, Seigler, Richardson & Davis, Kristy L. Gordie, for appellees.

I am authorized to state that Judge Phipps joins in this dissent.