A Heartbreaking Ruling

Joe Dugan's rarely one to complain, but his life has taken on a crushing monotony. For almost five years, the retired steelworker has spent most of his waking hours tending to his wife of 34 years, Sarah.

Sarah Dugan is a virtual vegetable, the result of a November 1990 heart attack while working at the American Express complex in north Phoenix. The incident left her permanently brain-damaged and unable to care for herself.

But Joe Dugan has refused to institutionalize Sarah. Instead, he continues to rely on his deep faith in God and marriage. "'In sickness and in health' means just that," he says.

A few years ago, Joe tacked up a handwritten missive next to Sarah's bed in their Glendale home.

"Lord," it says, "thank you for blessing us every day with courage, faith, forgiveness and hope. Lord, we can feel you offering miracles for us to behold."
For a time, Dugan says he believed that one of those miracles would present itself through Arizona's civil court system. It hasn't.

Last month, the Arizona Court of Appeals upheld a lower court in ruling against the Dugans in a lawsuit against American Express.

The Dugan family--Joe, Sarah and their four grown children--filed the suit in 1992 against the huge firm, for which Sarah had worked, most recently as a quality control supervisor, for 17 years.

Attorneys for the Dugans filed the lawsuit because, months before Sarah's heart failed, American Express had taken 911 off its telephone lines. And the company had done so without informing many employees that dialing security at 1414 during emergencies now was their only option.

When Sarah Dugan collapsed, her panicked colleagues lost valuable minutes trying to figure out how to get help. The rescue efforts of company employees and, eventually, paramedics saved Sarah's life, but not her body and her mind.

American Express' legal defense had a twist: Usually in workers'-comp-type disputes, the employer will contend an employee's injury did not stem from the job. But American Express insisted that the heart attack was job-related and that Sarah Dugan should be covered by workers' comp, thus barring her family from suing for damages.

In an emotion-charged case such as this one, the difference between workers' comp payments and a jury verdict could have been millions of dollars.

But in April 1993, Judge Michael Wilkinson sided with American Express in what he said was "a very, very close question." The judge concluded that Sarah's heart failure and brain damage had stemmed from her employment.

That meant workers' comp was the Dugans' sole source of relief. Even after that blow, Joe Dugan and his family managed to hold out hope that the appellate courts would overturn Wilkinson and reinstate the case.

But in a 3-0 ruling written by Judge Susan Ehrlich, the appellate court sided with American Express.

"[American Express] was not acting in a capacity independent from its status as employer," the judge wrote, "when it blocked the 911 access and created an in-house emergency response plan. The plan was formulated with the intent to benefit the health and safety of its employees, which included Mrs. Dugan."
A postscript: American Express is said to have reinstated 911 soon after Sarah Dugan's brush with death. But this tacit admission that things had to be righted apparently had no bearing on the judgment.

Oddly, the recent ruling barely touched on an Arizona law that almost always excludes heart-related injuries from workers' comp coverage. The exception to this rule is when "some injury, stress or exertion related to the employment was a substantial contributing cause . . ." of the injury.

But Sarah's previous heart troubles led her Phoenix cardiologist to opine that her job had "played absolutely no role in the heart event" of November 2, 1990.

Long-term-disability insurance and other policies are covering most of Sarah Dugan's medical expenses. And Joe Dugan says he's doing his best to cope, knowing that he'll never have his wife whole again.

"That woman gave her heart and soul to American Express," he told New Times in 1993 ("American Express Cut Her Life Line," August 11). "I'd like to think that, somewhere, they'll have to pay for what they've done to my wife and family."
The Dugans' attorney intends to ask the Arizona Supreme Court to consider the case.

 
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