*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.,
:
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.