143 Ga. App. 494 | Ga. Ct. App. | 1977
Lead Opinion
This is an appeal in a Workmen’s Compensation case. The evidence was limited to claimant’s testimony and to two medical reports. Claimant testified that for several years he had experienced chest pains following excessive smoking or exertion; that on January 22,1976, shortly after reporting for work, he began to have chest pains and nausea. About an hour later he assisted two other men in moving some heavy light poles and the pain in his chest increased. At noon he went to see a doctor. He was hospitalized. On discharge from the hospital on February 3, 1976, the author physician of claimant’s medical report made a final diagnosis of "arteriosclerotic heart disease with acute subendocardial infarction, Class IIB.” Claimant thereafter went to the Riverside Clinic in Jacksonville, Florida for another examination. The medical report from this clinic contains the following: "Impression 1. Recent chest pain and diagnosis of'heart attack’, etiology uncertain.” There is nothing in either medical report which shows a causal connection between the claimant’s heart condition and his job and the record is otherwise silent on this question.
The administrative law judge found an accidental injury to claimant’s heart arising out of and in the course of his employment and claimant was awarded compensation. On appeal, the full board adopted those findings "except as inconsistent” with its own; and found, inter alia: "m. Based on the fact that claimant was required to lift heavy poles, that he suffered constantly worsening chest pain throughout the morning of January 22,1976, that he requested to see a doctor, that he finally had to see a doctor and was immediately sent to a hospital, and that his lifting of heavy poles throughout the morning was physically strenuous, the board finds that the duties of his employment contributed to his subendocardial infarction, Class 2-B.” A substituted award in claimant’s favor was then made. On review the award of the full board was affirmed by the superior court. Held:
Code § 114-102 provides in pertinent part:"... nor
Judgment reversed.
Concurrence Opinion
concurring in the judgment only.
I concur in the judgment of reversal in this case but I am constrained to base my reversal upon a more restricted basis than that advanced by my brothers in the majority. It is noted in the majority opinion that claimant related that he had experienced chest pains for several years following excessive smoking or exertion. I would give little or no weight to that evidence inasmuch as the unrebutted evidence shows that claimant attributed those pains to certain polyps that had been surgically removed prior to the "heart attack” which occurred on January 22, 1976.
Of greater significance is the statement in the majority opinion that there is no evidence, nor is there any inference that can be drawn from the lifting of the heavy poles or that any other work-related activity of claimant
It is beyond peradventure that within the realm of common knowledge of our modern society, the fact of heavy manual labor gives rise to a natural inference that the performance of such labor by one suffering from a "heart condition” may well indeed bring on a "heart attack.” The administrative law judge, the full body of the State Boardof Workmen’s Compensation and the superior court were all persuaded that there was sufficient evidence to show a compensable injury caused by heavy on-the-job exertion by claimant. That finding clearly was supported by some evidence. Were we bound by the "any evidence” test for sufficiency of evidence, I would feel compelled to vote for affirmance. However, in view of the provisions of Code § 114-102,1 believe reversal is required because the claimant did not show by a preponderance of the medical evidence that his "heart attack” was the product of his employment labors. It is my opinion that in regard to questions of injury resulting from existing disease in any form, wilful act of a third
Ordinarily we will look only to see if the claimant was engaged in the usual course of his employment and was injured while so employed. If there is any evidence to support the finding of the fact-finder, we are obligated to support that finding. However, in my opinion, the purpose of Code § 114-102 was to add the requirement that if the conditions enumerated therein existed, the claimant would be obligated to prove by a preponderance of creditable evidence that the injury was attributable to his employment and not to the diseased condition. Any other conclusion would result in Code § 114-102 reaffirming the "any evidence” rule and necessarily make its passage a meaningless and nugatory act. Therefore, it was not sufficient for claimant to show that the "heart attack” might have resulted from strenuous manual labor but he was required to show by a preponderance of medical evidence that the heart attack was attributable to the performance of the usual work of employment to the probable exclusion of causation by the disease alone. In this case there is no evidence at all showing the etiology of claimant’s injury. It could have been caused by disease or from work. In the absence of such a showing, claimant failed to establish his claim by a preponderance of evidence. Accordingly, I concur in the judgment of reversal.
Dissenting Opinion
dissenting.
This is a heart attack case in which the majority
It is my opinion that even where there is no expert opinion to the effect that the exertion contributed to the attack that "knowledge from human experience, including medical caution against exertion in such cases and the admitted opinion of experts that exertion might contribute to such an attack” is sufficient to authorize a finding that where there is strenuous exertion and the claimant testifies as to the pain and suffering and disability arising therefrom this is sufficient to satisfy the so-called any evidence rule, and the board of workmen’s compensation should not be reversed in this case. See in this connection Hartford Acc. &c. Co. v. Waters, 87 Ga. App. 117 (73 SE2d 70) (performance of exertion while on the job contributed to cerebral hemorrhage causing death). Also such cases as Travelers Ins. Co. v. Young, 77 Ga. App. 512 (48 SE2d 748) (strenuous work was in fighting a forest fire, diagnosis of "heart failure or coronary thrombosis” causing death); Hardware Mut. Cas. Co. v. Sprayberry, 195 Ga. 393 (1) (24 SE2d 315) (hernia suddenly appearing following accident sustained during work); Lumbermen’s Mut. Cas. Co. v. Griggs, 190 Ga. 277 (9 SE2d 84) (employee suffered a stroke after assisting in the unloading of 600 sacks of cement weighing 94 pounds each); Fidelity & Casualty Co. v. Adams, 70 Ga. App. 297 (28 SE2d 79) (death following heat stroke after labor in mining kaolin); Thomas v. U. S. Cas. Co., 218 Ga. 493 (128 SE2d 749) (weakness and pain shown to occur immediately after exertion, need of medical attention followed by death); J. D. Jewell, Inc. v. Peck, 116 Ga. App. 405 (157 SE2d 806) (employee suffering from hypertension but working a 70-hour week, suffered a coronary occlusion and died).
The claimant, an electrician, testified: The first thing after arriving for work that morning he was told to run two hot water lines and he was physically bending water pipe to accomplish this task. He and other employees were required to move "by hand” electrical poles approximately 50 to 60 feet long and weighing approximately 700 pounds each. He had severe pain in his chest just prior to moving the poles and he mentioned this to the job superintendent and another employee. Three or four times during the course of the morning he asked the job superintendent, who was leaving the job site on each occasion, to take him to the doctor but the job superintendent "didn’t do it.”
At noon he saw a doctor and then entered the hospi - tal where he remained from "1/22/76 to 2/3/76” with diagnosis of "arteriosclerotic heart disease with acute subendocardial infarction, Class IIB.” The findings of the board, which elaborated somewhat on the findings of the administrative law judge, was that the claimant was required to lift heavy poles, suffered constantly worsening chest pain throughout the morning of January 22, 1976, requested to see a doctor and when he was allowed to see a doctor was immediately sent to a hospital; his lifting of heavy poles throughout the morning was physically strenuous, and "the duties of his employment contributed to his subendocardial infarction, Class II-B.” It is my opinion that the board’s findings were based on evidence and findings that the work-related activity of the claimant caused his heart injury. Neither this court nor the trial court is authorized to substitute itself as a fact
"Moreover, on appeal from an award of the State Board of Workmen’s Compensation, the evidence will be construed in a light most favorable to the party prevailing before the board.” Walker v. Continental Ins. Co., 142 Ga. App. 115, 119 (235 SE2d 389); Fulmer v. Aetna Cas. &c. Co., 85 Ga. App. 102 (68 SE2d 180).
I therefore respectfully dissent as I would affirm the lower court.
I am authorized to state that Presiding Judge Deen and Judge Banke join in this dissent.
Dissenting Opinion
dissenting.
I dissent from the majority opinion because of that which was held in Williams v. Maryland Cas. Co., 67 Ga. App. 649 (21 SE2d 478); Travelers Ins. Co. v. Young, 77 Ga. App. 512 (48 SE2d 748); and Thomas v. U. S. Cas. Co., 218 Ga. 493 (128 SE2d 749).