Bituminous Casualty Corporation v. Elliott

28 S.E.2d 392 | Ga. Ct. App. | 1943

The award of the Industrial Board, based on an erroneous conclusion drawn from the facts and the law, was properly reversed by the superior court.

DECIDED NOVEMBER 26, 1943. REHEARING DENIED DECEMBER 14, 1943. Alfred W. Elliott was employed by Henry County as a night watchman at the county convict camp. He was injured on November 29, 1941, while on duty, and applied to the Industrial Board for compensation. An agreement was entered into between him and the county commissioners and approved by the board on January 27, 1942, whereby he was paid compensation at the rate of $7.50 per week during disability. He died on August 27, 1942, and his widow, who was his sole dependent, filed a claim for compensation with the Industrial Board. A hearing was had before Director Tucker on November 20, 1942, at which it was agreed that the deceased was injured as the result of an accident while in the employment of the county, that the accident "arose out of and in the course of his employment," and that he was disabled by the injury. It appeared from the evidence before the director that the deceased was sixty-eight years of age at the time of his injury; that he was able to make and had made a "good living" for his family; that after he was hurt he could walk only by wearing a brace; that he continued to get worse, and a short time before he died was compelled to take to his bed and became so weak he could not sit up in bed. The certificate of death of the State Department of Public Health was introduced in evidence. This certificate recited that the primary cause of Elliott's death was "broncho-pneumonia," that the contributory cause was "cerebral arteriosclerosis with hemorrhage," and that the physician, Dr. W. A. Carter Jr., of McDonough, who signed the certificate last saw the deceased alive on June 30, 1942. Elliott died on August 27, 1942. The certificate contained the statement in small type that the physician certified that he attended the deceased. The son of the deceased, R. L. Elliott, signed the certificate as the person furnishing the information contained in the certificate relative to the deceased, and he testified that he did not offer the physician who filled in the death certificate any information as to his father's having "broncho-pneumonia or cerebral arteriosclerosis;" but that the only information he gave him was the dates of his father's birth and death. Dr. R. V. Brandon testified in substance that he treated the deceased in 1940, and twice in 1941, before the accident; that on two of these occasions the deceased had influenza, from which he quickly recovered; that he examined him as to arteriosclerosis, and discovered that he definitely had this condition before the accident; that this condition is itself progressive, and that he could not state how much the accident "speeded it up;" that a person who has this trouble is likely to die at any time of heart failure, kidney failure, or ruptured blood vessel; that he did not treat the deceased with reference to the accident, and could not state whether the accident had anything to do with the death of the deceased. It appeared from the evidence that Elliott was injured when a county truck, which was rolling down hill out of control and with no one in it, ran into the wall of the small shack in which Elliott was sitting, caused it to cave in and knock Elliott to the floor, rendering him unconscious. It also appeared that his back and kidneys were injured. There was testimony by the widow and by the son of the deceased that his physical condition was excellent before the accident and that nothing was known about him having cerebral arteriosclerosis; that about two months before his death he had a slight stroke on his right side which affected his right arm and right foot. It was agreed that the statement of the doctor who attended the deceased at the time of the original injury recited that the deceased "was in tool house, truck ran into house and caved in side striking patient about lower back." The only issue involved at the hearing before the director was whether the death of Elliott was the result of the accident and injury on November 29, 1941. He denied compensation to the widow, and in so doing held as follows: "In the case of Woodruff v. American MutualLiability Insurance Co., 67 Ga. App. 554, the Court of Appeals held: `A mere inference based on an inference is insufficient.' They held that an award may be reversed if there was no evidence of probative value to support it. The outstanding and pointed evidence in this case is the death certificate which was introduced into the record which shows that the deceased, Alfred William Elliott, died on August 27th, 1942. Primary cause of death, `broncho-pneumonia. Contributory cause, cerebral arteriosclerosis with hemorrhage.' This claimant was injured on November 29th, 1941. The record disclosed the nature of the injury. He was properly X-rayed at that time. There were no fractures. The evidence further discloses that the deceased definitely had arteriosclerosis before his accident. Dr. R. V. Brandon testified to this fact; that the condition is itself progressive; that he couldn't say how much the accident speeded it up; that a person who has this trouble is liable to die any time with heart failure, kidney failure, or ruptured blood vessel; that he did not treat the deceased as far as this accident was concerned, and he could not say if the accident had anything to do with the stroke or not. We therefore find as a matter of fact and conclude as a matter of law that the death of Alfred William Elliott on August 27th, 1942, was not directly or indirectly caused by his accident on November 29th, 1941." The claimant appealed to the superior court. That court reversed the award of Director Tucker, and rendered a judgment for the claimant against Henry County and the insurance carrier. The judgment and decree of the superior court is in part as follows: "Witnesses were introduced who were acquainted with the injury received by the deceased, and they testified that he was a man of good health, able-bodied, capable of walking long distances, and executing continued labor before he was injured; but that after said injury he suffered continuous pain and was unable to walk without his brace, all of which continued to procress [progress] until his death. There were five physicians who had attended upon the deceased some [time?] before his injuries and others afterwards; but no physician testified before the director to the proximate cause of the death of the employee. The said employer and the insurance carrier introduced no witnesses; but rested its case by introducing a certified copy of the death certificate showing that the primary cause of death was broncho-pneumonia, and the secondary causes arteriosclerosis, unassisted or supported by the physician who filled out the certificate, and without showing that any autopsy or post mortem examination was performed. The director in his award said this of the certificate: `The outstanding and pointed evidence in this case is the death certificate which was introduced into the record.' It must be inferred that the director was controlled in his decision by the certificate, although the signer of the certificate was not a witness in the case. The statute provides that the certificate shall contain the following information: `Date of death: year, month, and day. Certificate of medical attendance on deceased: fact and time of death; time last seen alive, and cause of death, with contributory (secondary) cause or complication, if any; duration of each, and whether attributed to dangerous or insanitary conditions of employment; signature and address of physician or official making the medical certificate.' `The medical certificate shall be made and signed by the physician, if there was any last in attendance; the time he last saw the deceased, and the hour of the day at which the death occurred. He shall further state the cause of the death, so as to show the course of the disease or sequences of causes resulting in the death, giving first the name of the disease of causing death (primary) and the contributory (secondary) cause, if any, and the duration of each. Indefinite and unsatisfactory terms, denoting only sumptons [symptoms] of disease or conditions resulting from disease will not be sufficient for the issuance of a burial or removal permit. . .' Code, § 88-1214. And when so made the law provides that a properly certified copy thereof shall be prima facie evidence in all courts or places of the facts therein stated. Code, § 88-1212. Were the exact requirements of the law complied with in the making out of the certificate of the death of the deceased? The court does not think so for the reason that it shows on its face that Dr. A. W. Carter Jr., who affixed his signature thereto, was not he attending physician of the deceased during his last illness, he having stated in the certificate, `I last saw him alive on June 30, 1942,' which was approximately two months before the deceased died on August 27, 1942. How could the physician have formed any worthwhile opinion as to causes of death when he was not only any present when death occurred, but had no access to an autopsy or post mortem examination of the body in an effort to determine the causes of death? It is also significant to note that the certificate was not made out by Dr. Carter until October 23, 1942, nearly four months after death had occurred. All of which proves that the certificate of death contradicts itself, and is therefore of no probative value in determining the causes of the death of deceased. It is this court's opinion that the introduction of the certified copy of the death certificate failed to create a presumption of proof which cast upon the claimant the burden of overcoming the same by proof that the cause of death was not the cause stated in the certificate. It was admitted by counsel for the defendants that, `The stipulated facts and the undisputed evidence placed upon the defendants the burden of showing that some intervening or pre-existing agency is the cause of death rather than the injury.' This burden the defendants wholly failed to successfully carry unless the statement made in the self-contradicting certificate of death is controlling, as no other evidence save a written statement of the deceased, of any character was offered by the defendants." The Code, § 88-1212, provides that a certified copy of a death certificate which has been "registered under the provisions" of the act of 1927, page 368, as amended, "shall be prima facie evidence in all courts and places of the facts therein stated." Section 88-1214 provides, among other things, that a certificate of death shall contain "certification as to medical attendance on decedent, fact and time of death, time last seen alive, and cause of death with contributory (secondary) cause or complication, if any, and duration of each, and whether attributed to dangerous or insanitary conditions of employment; signature and address of physician or official making the medical certificate." This section also provides that "the personal and statistical particulars [items 1 to 13] shall be authenticated by the signature of the informant, who may be any competent person acquainted with the facts," and that "the medical certificate shall be made and signed by the physician, if there was any, last in attendance on the deceased, who shall specify the time in attendance, the time he last saw the deceased alive, and the hour of the day at which the death occurred", and "further state the cause of the death, so as to show the course of the disease or sequence of causes resulting in the death, giving first the name of the disease causing death [primary cause] and the contributory (secondary) cause, if any, and the duration of each." It clearly appears from the evidence that the certificate of death introduced was not certified in compliance with the provisions of law relative to death certificates, in so far as it purported to be a certificate of death by a physician in attendance on the deceased. The Code, § 88-1215, provides for the making of a certificate where the death occurs without medical attendance. The certificate introduced did not purport to be under this section, but under section 88-1214.

It appearing from the evidence that Dr. A. W. Carter Jr., last saw the deceased alive on June 30, 1942, almost sixty days before his death, the certificate of death should have been made in accordance with the provisions of the Code, § 88-1215, or if there was a physician in attendance on the deceased, he, and not Dr. Carter, should have made the certificate. It follows as a matter of law that the certificate introduced in evidence was not prima facie evidence of the facts therein stated relative to the primary and secondary causes of the death of Elliott. The director therefore erred in finding as a matter of law that the death of Elliott was not directly or indirectly caused by his accident. In view of the testimony of the witnesses on behalf of the claimant to the effect that the deceased was in good health and physical condition before the accident, which consisted of a violent blow from a heavy object striking the body of a sixty-eight year old man in the lower portion of his back near his kidney, the testimony of Dr. Brandon to the effect that he had examined Elliott some time before the accident, and that Elliott then had arteriosclerosis did not necessarily constitute evidence that Elliott's death was not brought about as the result of the accident. The only reasonable conclusion under the facts of this case is that the violent blow to Elliott's back which rendered him unconscious, caused him to be taken to a hospital, and resulted in his being unable thereafter to walk without wearing a brace, and consequent disability aggravated Elliott's pre-existing diseased condition and caused or materially contributed to his death. See Griggs v. Lumbermen's Mutual Casualty Co., 61 Ga. App. 448 (6 S.E.2d 180); Williams v. Maryland CasualtyCo., 67 Ga. App. 649 (21 S.E.2d 478).

It follows that the judge of the superior court did not err in reversing the award of the single director, and in rendering a final judgment for the claimant. See American Mutual LiabilityIns. Co. v. Brock, 35 Ga. App. 772 (2) (135 S.E. 103). The judgment, however, awarded compensation in the sum of $7.50 per week. It is conceded by counsel for the claimant in a brief filed in this court that she was entitled to receive only 85% of $7.50 per week, and they state their readiness to write off from the judgment enough to reduce the award to 85% of $7.50 per week.

The judgment is therefore affirmed, but with direction that the awarding of compensation of $7.50 per week be written off to the extent of awarding the claimant compensation of 85% of $7.50 per week.

Judgment affirmed with direction. Sutton and Felton, JJ.,concur.