*1 BYERS, Petitioner, Jerry COMPANY,

CREECO MILL ELEVATOR & State State Insurance Fund and the Oklahoma, dustrial State of Respondents.

No. 39648.

Supreme Court of Oklahoma.

Nov.

Rehearing 14, 1964. Jan. Denied Bristow,

Edgar B. George H. Maggi, Jennings, Sapulpa, petitioner. for Powell, Bosonetto, Mont R. Moraul Okla- City, Nesbitt, Gen., homa Atty. Charles R. respondents. McCaleb, Fenton, B. Fenton, John Smith George Fisher, & McCaleb, E. Okla- City, homa amici curiae.

HALLEY, Vice Chief Justice. Claimant, Jerry Byers, employed by Creeco Mill and Company, part- Elevator nership, employer, hereafter called when on 29, 1959, December paralytic suffered a job. stroke on the His duties a “mill hand” generally consisted long hours and hard work unnecessary which is to detail here. The matter is whether the order denying award to claimant is .an by any competent evidence. A judge of the trial court found that “Claim- ant’s is due paralytic to a resulting pre-existing vascular disease natural causes and is in manner due accidental injury sus- employment tained while in the spondent.” Claimant seeks a review of that finding and the order based thereon denying award. *2 argues claimant report consisted of that medical

Claimant’s evidence upon and was based by incomplete Drs. inac- reports, each, and one two letter J. n N. history. Second, argues hard curate that the strain of the claimant stated Dr. J. work, a heavy lifting long and hours were of Dr. D. on cross-exam- ination hypertension was contributory causing so inconsistent with written factor in his report subsequent hemorrhage. destroy Dr. as probative to and cerebral value report. con- his up N. work was a written will these stated that claimant’s We take arguments production of in order. tributing factor quotes Claimant and first cites Acme Bray, Flour Mills v. Okl. Thus the whether his issue was not P.2d-828, wherein we held: injury was the but the sole cause of narrowly whether was more drawn toas “Testimony expert of an witness any way work in upon based a history admittedly incom- causing total resulting and stroke plete probative and has no inaccurate disability. value.” Employer’s this is- evidence in chief on “Where an award of the State report by Dr. D. sue consisted of a letter dustrial Commission is based ma- following report who concluded his with the terial findings unsup- of fact which are to nat- statements: is a disease “This due ported by any competent evidence, this causes; is, ural that arteriosclerosis court, review, will vacate pressure. It high vessels award as a matter of law.” certainly an in- is not to be as considered Bray case, In supra, claimant jury accident, occupational, nor nor is it strained employer himself. him His sent do- is it the work that was the result of he physician a who found that he suffer ing. He was manual labor ing from an gonorrhea acute attack of with life, that he all and this had done epididymitis accompanying (an inflamma (em- at all with nothing to do his stroke.” epididymis tion of the elongated mass —an phasis ours) at chiefly the back composed of the testicles report employer From that we see of the convoluted efferent tubes of or has met the burden presenting some ; gan) operation that an indicated competent medical that claimant’s evidence relief of this diseased condition and such any way did not in contribute to operation performed. trial tri disability. cause of claimant’s bunal found in that claimant sustained an jury groin. only Claimant’s medical The rule fol of law which we have report evidence was a a from doctor years through lowed our is found in went to opera see several months after the holding in Sanders v. State Industrial Com tion. Claimant withheld from his doctor mission, Okl., : 331 P.2d 478 the fact the acute attack gonorrhea. “Whether is to com- due His doctor’s was that claimant had pensable injury or other a cause is strain involving the cord question of fact for the determination op vessels of the scrotum necessitating an of the State Industrial Commission in a permanent resulting partial eration dis hearing question, on this and this court ability. testify The witness did not will finding disturb the made injury claimant had an groin to the said commission thereon if there is found the trial tribunal. The witness’s competent reasonably tending entirely history was based on the support finding.” said given by completely, claimant which did not But, correctly fully respect claimant advise contends that D.’s port rejected by to claimant’s condition at the of his al should have been the trial time injury. First, leged tribunal for either of two reasons. competent evidence, case such a will vacated be case is The instant is by Supreme above out set on review.” law rule of therefore D.Dr. insists that Claimant applicable. In wit- cited case claimant’s history of failed receive *3 claimant reports ness that submitted letter immediately reading pressure high blood probably lungs pneumonitis had a of the he that and he suffered the (cid:127)after (cid:127) secondary to the inhalation of fumes the concerning information failed to obtain 1957, caustic soda which in showed April, The work. claimant’s of nature strenuous up June, x-rays in 1957. May made in and assertions. these not sustain record does x- He further stated claimant had that and history from Dr. D. took 1956, ray September, of chest in his made the prior to They that said his mother. reported which On was be normal. to never and had good in health was stroke he had cross-examination, that he admitted he his him that They told been sick before. x-rays not seen and that the made in was when it 200 pressure was over blood if present the same condition was hospital after the taken at the x-rays x- present in as was the it reported had medical witness 'Claimant’s rays (which by employ- fact testified was than higher of is be Each these to 230. witness), agree er’s medical he would then that D. testified reading. Dr. normal al- pre-existed that the claimant’s condition n strokevictim’s go may either pressure exposure leged April, in tes- also He a stroke. immediately after

up or down in- tified that did not know whether the he sig- not time taken at that reading anything halation with of fumes do to does because it conclusions nificant his present disability equivo- not. Such of what any indication give testimony subject cal and indefinite is On the stroke. just pressure was before rule the set out above. Dr. on cross-examination point, the other However, in instant case mother claimant and D. testified employer’s medical witness did not recant and unloading claimant told him upon posi cross-examination from clear n shoveling he usual work which was oats he report tion he took in his letter wherein he years which for several had been nothing said that claimant’s at all work had n characterized “ordinary report as in his D. to do his stroke. with It is true that pressure the blood Thus manual labor.” did not on cross-examination each answer sufficient- reading and claimant’s were every question and an an with as direct Dr. D. known to ly explained and made swer as But claimant now would desire. into account them properly took accepted claimant answers at the time medical conclusions. reaching his hearing request did not that the men- argument, as we second Claimant’s judge require the witness to answer above, holding our based on is tioned questions directly. more On ex re-direct Yeargin, Garr-Wooley Company v. Oil position amination plain. made his Okl., 410: P.2d He was asked whether caused or contributed to the stroke. an He compen- which “Where in his swered that the work was provisions sought is under sation the precipitating factor in claimant’s Compensation Act Workmen’s is stroke. We are of the conviction that Dr. require testimony as character such testimony indefinite, D.’s equivocal, persons professional to de- skilled ambiguous or inconsistent. The order de nature, its extent causal termine nying supported the award is by competent inju- alleged with accidental connection must be up ry, awarding compensation an order on review. Sanders v. State Industrial indefinite, is based which Commission, supra. equivocal, ambiguous or inconsistent supported by denying medical evidence is not Order award sustained. physical IR- have a DAVISON, JACKSON, exertion caused him to WELCH, (Emphasis stroke”. supplied.) BERRY, concur. JJ., WIN Although sought counsel to elicit BLACKBIRD, J., and C. JOHNSON doctor’s whether exertion WILLIAMS, JJ., dissent. attendant did con- claimant’s labor gave stroke, tribute to his the witness : WILLIAMS, (dissenting) Justice However, directly responsive. answer majority- agree I am unable to tenor, content, neither D.’s of Dr. nor opinion. seeks element to exclude the effect my It is conclusion contributing claimant’s work as a factor *4 majority holding is that the contrary, cerebral such On the condition to the effect that claimant’s hyper- witness conceded that in the case of to sus- is sufficient not caused his work individual, tensive caution he “would Industrial tain an order of the State about his the added that exertion.” He Such claimant. to such denying an award the exertion of cause doing work “doesn’t basic the decide does not a determination puts vessels, condition it in the but not is whether which involved, issue here more strain on brain on the the any there was vessels.” (Emphasis supplied.) ad- an accelerate aggravate or work did appears It and at- that Dr. D. desired condition. pre-disposing latent mitted tempted his testi- to confine the effect of mony demonstrating a simply only gives structure physical If a workman’s pre-exist- definite causal relation betweén labor which his usual way stress under of ing hypertension The and cerebral stroke. pre-dis- latent or accelerates aggravates admitted existence of that stood relation condition, injured workman posing dispute. doctor compensa- was not in When the may be entitled nevertheless question give failed to consider the of disability resulting for the entire tion an claimant’s work to whether work-connected of effect the cumulative by ag- may have contributed to the stroke underlying illness. combined strain vascular gravating underlying the dormant Drilling Co. Gen- v. Tillman Patrick & See pres- 921; heightening his blood pathology, Truck 142, B & W P.2d try, 9 156 Okl. he, effect, 499; sure, ignored Old., Truck in the crucial Cline, P.2d v. Service Okl., short, testimony ap- Davis, inquiry. under In v. Service Sales & & Trailer and de- pears to have been self-directed P.2d 612. point to the flected one material from the Orum, Hur Co. v. Ben Coal case of In the controversy proceeding. the An factual in an affirmed his Court Okl., P.2d example of such is set out case, In such for death benefits. award majority as follows: of the testimony that the deceased no there (Dr. D.) was asked whether “He The facts a strain. employee caused or claimant’s work contributed the date of employee on the were stroke. He answered that in to the performed his work as usual death pre- opinion the work was not the strenuous, and while admittedly miner, cipitating claimant’s stroke.” slumped the mine out of the factor crawling (Emphasis supplied.) making died without and there ground statement. was not asked whether or Dr. D. precipitating work was the but the factor award denying an herein rests order whether or not claimant’s work was asked testimony of Dr. D. In the the on stroke. Such latter physician, “the work was opinion of answer. question he did not in his precipitating (claim- factor disclosed, far as the record So doctor further stroke”. Said testi- ant’s) opinion directly expressed bearing on say purely speculative to “its fied work- question of whether Enrolled of In Review of the Matter long and three-year period of connected Senate House No. Enrolled Bill 586 and daily the circumstances hard under exertion Twenty-ninth Joint Resolution No. 8 of his cerebral of this case contributed Legislature of Oklahoma. accelerating a by aggravating or DAVIS, Appellant, R. William pre-disposing latent condition. State A denial of award of McCARTY, Speaker House J. D. of the indefinite, solely on dustrial Court based Oklahoma, Representatives the State of medi- equivocal, ambiguous and inconsistent individually all of and on behalf of Adams proof be sustained. Representatives cal should not members of the House of Boecher, Oklahoma, Roy C. of the State of Co., P.2d Old., 335 v. Reed Roller Bit Tempore Senate Pro President individuaily Oklahoma, the State of opinion, majority As set of the Senate forth behalf of all of the members Henry Bell State Oklahoma and “He report stated: D. in his letter Oklahoma, mon, Governor of the State la- manual (claimant) Appellees. *5 all bor that he had done life-” No. 40496. infer that seem to Such statement would causal relation had no claimant’s work Supreme Court of Oklahoma. that he was cerebral stroke 10, 1964. Jan. (Em- unusually strenuous. doing anything phasis supplied.) Terminal Kelley Enid

In the case of Old.,

Elevators, this Court 372 P.2d Industrial the State

vacated an order of order of that said for the reason the fact was based on

denial unusually performing no

claimant was

heavy on the date or strenuous work could have alleged accident which precipitated the heart attack.

caused the strain opinion we held that

In such perform- expended in the effort

induced accidental may alone constitute

ing labor though while the

injury even manner the normal is done performance

quired in the the occurrence of

duties and without incident connected therewith.

untoward majority the effect of

Since approve denying an an order award

is to

based improper it in turn is based on an

D. and e., unusually work,

requirement, i. strenuous consider whether or not

and does not accelerating aggravating his latent condition,

pre-disposing respectfully I dis-

sent.