Pursuant to the grant of a discretionary appeal under OCGA § 5-6-35 (a) (1), Brandon and Brandi Bartrug, the minor children of deceased employee Sara C. Buschel, by their next friend Lori Foster (collectively “Buschel”), appeal the judgment of the superior court reversing the award of the State Board of Workers’ Compensation. They contend the superior court’s judgment is a nullity because the award of the full board was affirmed by operation of law when the judgment was not entered within 20 days of the hearing as required by OCGA § 34-9-105 (b). They also contend the superior court erred by reversing the award as it should have been affirmed under the any evidence rule. The employer, Kysor/Warren and its insurance carrier, Wausau Insurance Company, have filed a cross-appeal contending the board’s award was erroneous because it was based upon inconsistent theories of recovery and the findings were not supported by the evidence.
While an employee of Kysor/Warren, Sara Buschel cleaned insides of refrigeration cases with toluene, a toxic chemical closely monitored by the Occupational Safety & Health Administration. According to evidence presented, excessive inhalation of toluene vapors can cause nasal and respiratory irritation, central nervous system effects, including dizziness, weakness, fatigue, nausea, headache, possible unconsciousness, and death. Because the employer did not measure the amount of toluene in the refrigeration cases, the amount of toluene Buschel inhaled or her exposure on a daily basis is not known. Lethal levels of toluene, however, were not found in her body after her death.
Although a pre-employment physical found her in good health, after beginning work with Kysor/Warren, Buschel started experiencing headaches and severe nosebleeds. She frequently took headache medications on and off the job and requested and received from her employer a face mask to wear at work, and she told others that the chemicals at work made her “high,” burned her nose, and made her head pound. Buschel submitted claims reporting these symptoms to her employer on three occasions, and these experiences were confirmed by other employees. Further, one week before her death, she complained of loss of bowel control.
On November 10, 1990, Buschel and a co-worker worked on refrigeration cases very near the company’s break room. Although it does not appear that she worked with toluene, shortly before the 9:00 a.m. regularly scheduled break, she complained of headaches and took headache medicine. At 9:00 a.m. she walked to the break room and
When the employer contested a claim for workers’ compensation death benefits, the claim was referred to an administrative law judge. Thereafter, a hearing was held.
Although four different pathologists gave opinions on the cause of Buschel’s death, they could not agree on its cause. One pathologist, retained by the employer, stated that in his opinion the death resulted from viral myocarditis. This pathologist, however, acknowledged that people do not usually die from myocarditis, and he also testified that toluene can kill. Two of the pathologists, one who conducted the autopsy and who is the deputy medical examiner for Fulton county and under contract with the Georgia Bureau of Investigation and the other retained by Buschel, rejected myocarditis as the cause of death, but they could not state a definite cause of death. The fourth pathologist, also retained by the employer, also stated that perhaps another kind of myocarditis was the cause of death, but deemed more information necessary before a definite conclusion could be reached. This pathologist also acknowledged that it was unusual for death to result from myocarditis. From the pathologists’ testimony it was apparent that the symptoms Buschel exhibited differed from the symptoms displayed by people suffering from myocarditis, and she did not display classic symptoms of myocarditis. Further, the autopsy showed that her heart was not consistent with that of one who died from myocarditis.
Based on this evidence, the ALJ found that Buschel’s death was unexplained and applied the presumption that arises from an unexplained death so that Buschel’s death was presumed to have arisen out of and in the course of her employment. Thus, given the uncertainty on the cause of Buschel’s death and the employer’s inability to rebut the presumption, the ALJ found that Buschel’s death arose out of her employment.
The ALJ rejected the employer’s “on break” defense because Buschel collapsed immediately upon entering the break room and Buschel did not suffer any injury or accident while on break. Instead, the ALJ concluded that Buschel’s death resulted from long-term exposure from toluene in her work place, and that the injury occurred in the work place and not in the break room. The ALJ found that Buschel’s death arose out of and in the course of her employment and as a direct result of her performance of the job duties with the employer. Consequently, the ALJ awarded funeral expenses and payment of weekly death benefits to Buschel’s two minor children.
After the employer’s appeal to the full board was unsuccessful,
Appellants were granted authority to file this appeal. The employer filed a timely cross-appeal. Held:
Case No. A94A0401
1. Under OCGA § 34-9-105 (b) the order disposing of a workers’ compensation appeal must be “entered” within 20 days of the hearing on the appeal or the award of the board will be affirmed by operation of law. Although this court in
Travelers Ins. Co. v. McNabb,
2. In view of our disposition in Division 1, Buschel’s other enumeration of error is moot. Appellants’ contentions regarding the sufficiency of the evidence to support the State board’s award will be considered in connection with the cross-appeal.
Case No. A94A0402
3. Buschel has moved to dismiss the cross-appeal because Kysor/ Warren filed a cross-appeal under OCGA § 5-6-38 (a) and did not use the discretionary appeal procedures in OCGA § 5-6-35. “[U]nder the Appellate Practice Act, an appeal which, standing alone, would be subject to discretionary appeal procedures, is appealable as a matter of right if it is classifiable as a cross-appeal to an appealable order.”
McClure v. Gower,
4. Kysor/Warren contends the State board erred by adopting the ALJ’s award because it was based on inconsistent theories of recovery, i.e., the decedent died of unexplained causes thus invoking the presumption that her death arose out of and in the course of her employment, and yet the ALJ also found that the death resulted from long-term exposure to toluene. Even though there is an apparent con
This presumption arises when the employee’s death is “unexplained.”
Odom v. Transamerica Ins. Group,
As the unexplained death presumption has been expanded to include cases in which the employee becomes ill at her place of employment and dies from such illness at the hospital
(Southwire Co. v. Cato,
Of course, the presumption may be overcome by the employer introducing evidence showing that the death did not arise from and out of the decedent’s employment
(Zamora,
supra at 87;
Hartford Accident &c. Co. v. Cox,
In any event, whether the general presumption was rebutted is a
Therefore, the unexplained death or dying presumption standing alone is sufficient to support the award of the State board. Moreover, whether injury arose out of and in the course of employment are questions of fact which we must affirm if there is any evidence to support the board’s findings.
Chattooga County v. Bruce,
5. Accordingly, Kysor/Warren’s contentions that there was no evidence to support the finding that Buschel’s death was due to exposure of toluene fumes at work and that the board erred by adopting the ALJ’s finding that Buschel’s death gave rise to the presumption that her death arose out of and in the course of her employment because she was engaged in a regularly scheduled work break at the time of her death, are without merit for the reasons discussed in Division 4.
The judgment of the superior court is vacated, the case is remanded, and the superior court is directed to issue an order stating the decision of the full board was affirmed by operation of law.
Judgments vacated and remanded with direction.