*1 BROTHERS YARBROUGH KEARBY v. M. Mrs. James CO. GIN Farm Bureau Southern 455 S. W. 2d 5-5285 delivered Opinion June [Rehearing August denied 1970.] Roberts, for appel- and Nevada Mazzanti Eugene lant. Boswell, for
Cockrill, McGehee, Laser, <tr Sharp appellees. workmen’s This is-a Chief Justice. Harris, Carleton case, issue is whether and the
compensation only award made evidence to support-an substantial appellant Mrs. M. Kearby, the commission to James herein, M. employee and widow of Kearby-, James died from who Company, Brothers Gin Yarbrough thrombosis, of coronary as a consequence a coronary VJ, disease, Subsequent on November artery claim for Kearby, widow filed *2 the death of the Mr. April by on being referee a benefits, heard this claim 1969, the refe- 24, Opinion 7, on filed In an June injury Kearby an accidental sustained held that ree compensation act which meaning of the within the employment during of, his of, the course and arose out Company. An award of Yarbrough Brothers Gin with 18, 1968, commencing per on November week $58.50 paid, $14,500 been continuing had the and until sum-of appealed to the full made, was award and this was order the the of- affirmed commission The commission. per week except referee, the amount $58.50 ruling per Thereupon, the week. was reduced to $55.00 appealed to the Lonoke Circuit was of the commission holding hearing, commission the Court, the and on was sub- reversed, that there no court was the judg- support the award. From evidence to stantial brings appeal. Kearby entered, Mrs. ment so proof Kearby employed reflects that had been by Yarbrough Company, Brothers together Gin with Southern Farm Company, Bureau Insurance -con- appellees herein, approximately stitute the for twelve years, responsibility and it was his to oversee the entire operation gin of the and to maintain the mechanical years, and it responsibility was his to oversee the entire system. According Kearby, to Mrs. for than three more years age, Kearby, death, would weeks before his a.m., a.m., the house for work 5:50 -at leave arise and would never p-.m. return from wor-k earlier than 7 normally a schedule than was This was heavier followed ginning busy for cotton was in season because progress. Sunday -morning, said that The witness arose, breakfast, and had two November per- go Kearby he to the to had remarked Kearby repair church, job. Mrs. went and a form returned, her husband had arrived at she back when Kearby living lunch, After Mr. went the home. where until he watched television room about 1:50 coughing, began took a time dose P. M. At that very began coughing again syrup, shortly of couch but short breath. He told his that he getting wife to see a doctor gone had and had morning shot; a she added that he had been shots taking gotten time due chronic bronchitis. Kearby for some Mrs. from thought perhaps having reaction however, doctor; she suggested calling the shot and worse, but he Kearby continued objected,, get very breath, and short of took them to the hos- neighbor at admitted about 3 pital England, Kearby being p.m. forty He died some later. minutes Arnold, an Grover Cleveland at employee gin, testified and had Kearby “ginner” duty responsibility re- operating gin, *3 was breakdowns. He said it around pairing dusty ladders, there were gin, one rather steep, climbed; that had to be that Kearby the belts repaired and pulleys at sometimes gin, these belts carrying oulleys and when he climbed the ladders. According witness, the belts weighed from twenty-five to ap- proximately fifty pounds. Arnold said he had heard Kearby complain of a shortness of breath on several occasions. The witness stated that he saw Kearby’s truck at parked on morning Sunday, 17th, November but did not know whether Kearby ac- tually performed any work while there. the gin Arnold, an employee likewise
Emmett Ad- facts. the same approximately testified company, per twelve hours worked said that he ditionally, little around a “usually stayed that Kearby and day, break no lunch frequently He also said more”. while another eat man would taken, but one was his always brought Kearby in his place; worked rolling”. “just kept the job lunch and Woods, a practicing Thomas Owen physician Dr. treated Kearby day testified England, he died. about “I first saw Mr. Sun- Kearby nine-thirty on with a of shortness of breath. day morning, complaint before, and I I had never seen went patient got file and found he had similar com- his office previously, plaints him he and I advised should have thorough evaluation, and didn’t he said he have a more time, thing back, and he wanted that he would come some- got usually breath, that he for his shortness of gave him complaint, so, I main was his which Neothylline, Then, and he left. about three o’clock brought emergency afternoon, into the room he was difficulty having breathing, severe with cold and clam- my, profusely, hypertension. perspiring and had It was my opinion cardogenic shock, and I that he was ad- hospital.” mitted him to the electrocardiogram said that an
The doctor was suspicious myocardial, taken, and that he was of a in- appeared secondary farction, that he had also congestive Kearby’s heart failure. Woods had examined reports, and into one read evidence as follows: expired male, sixty-year-old who white
“This Sixty-eight, seventeen, had had a Nineteen November diagnosis years, cough with for several chronic pneumoconiosis, with bronchitis chronic irritation re- partially his chronic probably related working In Nineteen June, environment. lated to Diagnostic *4 Sixty-eight, Little Rock the was seen complete evaluation, Lewis, for Clinic, Sexton Doctor diagnosis bronchitis They of chronic the confirmed pneumoconiosis.” respiratory was a this testified that doctor opinion aggravate in that conditions condition, and it was with ailments gin the to would tend a cotton testified that Kearby He further was afflicted. place a tend could chronic condition irritation of a purpose the stated that witness heart. The on the stress diuretic, Neothylline, dilator and a a bronchial the breathing, Kearby’s fluid improve and to remove towas congestive lungs. in cases of that He also said the from heart lungs. Dr. Woods in the failure, fluid accumulates Kearby’s that, the information based on also said history heart condi- of a record, a did have the latter artery coronary observing is Though disease that don. many years, period process over occurs a by physiological condi- influenced is more an attack precipitate activities, stress could than rather tions state a conclusion would not attack. The doctor relationship and the heart the work causal stronger be a attack, connection. that there could than part positive the statements on It this lack supporting point appellees as their out the doctor testimony did not constitute sub- that his contention appellees- evidence, mention that ref- stantial eree relying making award, he was stated “simply opinion expert because there isn’t upon any”. many weight no have stated on occasions that We findings of the referee. Potlatch be attached tois Smith, S. W. 2d 166.
Forests, v. Inc. might was made a statement also add that We personal taken into that he had consideration referee knowledge following effect: ginning work; that conditions
“Cotton hard extremely dusty; surrounding the work are dust during ginning constantly season are and lint machinery, employees air, and the entire covers the vicinity neighbor- adjoining as as the of the well dryers generate gas hood; and, a sufficient amount of creating point work- and to the uncomfortable heat ing conditions.” proper case, no the facts of this there was Under concerning personal knowledge, statement for this
basis but appear, entered, from the order does not body paid it, commission attention mak- ing evidence, and then reference employ- connection between the decedent’s causal *5 and his death. ment we, doubt, case, no is a rather close would
This against Kearby. been Mrs. if the had On affirm
110] having in hand, decided favor ottier the commission the say contentions, that can do not feel we her we support to the evidence no substantial that there was than occasion on more one said award. This court has - cases, strongest compensation and the in the rule any weight, greatest carrying is that if there is one the findings support com- the of the to substantial evidence Reynolds findings. mission, disturb those will not we 158, Robbins, Ark. S. W. 2d 328 Metal Co. v. clearly Kearby Here, establishes that evidence the pre- working long weeks hours for several had been working ceding death; were extreme- conditions ly with chronic who was afflicted difficult for one pneumoconiosis; this con- chronic bronchitis with working environment; that he dition was related to his was prior morning suffering November th gin, going to received medical attention. given by Appellees refer the indefinite answers to testimony Woods, and no Dr. assert that his aid reading transcript, appears appellant. From the very physician conscientious, and was en- was making deavoring to avoid statement that he could Though he completely say refused to substantiate. employment, the attack heart was occasioned say in tend did that conditions would Kearby aggravate chronic ailments with which afflicted, and that irritation of a chronic condition place said tend to a stress on heart. He also could Kearby purpose given medicine on Sun- breathing, improve day morning the latter’s lungs. already out, from As set fluid remove congestive failure, in cases heart fluid stated that ac- lungs. in the cumulates pointed mathemati our cases that out
We have certainty necessary stating the cause of cal is not Fidelity Guaranty v. Dor death. United States & Co. man, W. 340 S. In 2d 266. Atkinson v. Guaranty (Texas) Fidelity Co. & United States compensa- court, W. the trial a workmen’s S. 2d *6 not compensable of case, appellant held claim a tion evidence of accidental injury, was no there because- the a causal connection of no evidence In husband. revers- of appellant’s and the death Texas Antonio) of (San of Appeals the Civil Court ing, said: one at point Dr. Longoria because that “It urged is the a possibility ‘it is origin (of the
testified and ex- strain and stress through incited disease) something rule that the within comes case this posure,’ necessary is ‘possibility’ of mere showing a more than connection, [citing causal of finding establish showing not a whether or determining In cases] made, all the has been no more possibility mere The must be considered. the point evidence pertinent witness, speaking an expert fact cause’, as ‘might such expressions uses and effect cause cause’, or similar cause’, phrases possibly ‘could ‘could of causal con- a jury preclude thereto does evidence nection, be other supplementary provided gen- is Causal connection the conclusion. supporting inference, often may and possibilities a matter erally the argument and important part a proper play relationship.” of such the existence establishes We above is pertinent think the language hand, be at and our views well summed might cause used in Hall v. Pittman language Construc- up There, W. tion Co. S. wé said: 2d 263. “Under substantial evidence rule that prevails a case kind appellant shoulders heavy burden in a reversal of the seeking commission’s deci- sion an issue of In upon fact. order succeed the ap- pellant must so show proof nearly undis- puted that fair-minded men could not reach the con- clusion arrived at commission. studying After the record we to say are unable appellant reversal; is, entitled to a there is no substantial support evidence to commission’s findings.” judgment is re- of the Lonoke Court Circuit versed, with directions to cause is remanded commissipn. by the reinstate the award made
It is so ordered. JJ., Fogleman,
Brown and dissent. dissenting. A. Because Justice, Fogleman, John appellant show causation a failure testimony, spite court, I affirm the circuit would testimony holding. How the doctor’s the commission’s support be to the commis- can said lend substantial my beyond comprehension. The doc- sion’s be a tor’s admission that tween there- could connection be- and decedent’s a heart attack a say speculative highly one to the least. reluctant and testimony point His follows: say, your opinion, I is there a relation-
Q. degree ship between the stress and strain occupation from his and the occurrence of his condition? Well,--
A. referring of chronic I am to the condition Q. pneumoconiosis, well as his as bronchitis and subsequent attack. heart fatal separated. I to be these would have A. I think give you for both. one answer couldn’t relationship Okay. there definite Is a Q. degree on his bronchitis
a of stress strain occupation? pneumoconiosis his yes. so, think A. I would relationship, assuming that And was there a
Q. condition, a was there relation- he had heart ship called on do between what occupation to his heart as condition relationship with the stress disease? Was there? I I I could answer because
A. don’t believe had. much don’t know how stress you it, Doctor, you if answer better Could Q. testify toas what heard of these witnesses some gin? were at his activities Possibly. I make a sort of A. Can statement _ clarify some go right Yes, ahead, Doctor. Q. *8 artery process coronary
A. disease many years, person and whether a occurs over activity, working his or the ultimate whatever gradual buildup this or the of these cause of physiologic plaques in the arteries on a are activity. basis, not so much his Doctor, I or know but couldn’t stress Q. cause one of these trauma or sudden exertion dislodge? plaques precipitate yes. attack, A. Could So, Doctor, then, then, is it to state correct Q. type engaged in the of work that
if exertion, or that it tended to create stress could precipitate an attack? Is that correct? I answer for sure. am afraid I can’t A. trying you Well, Doctor, I am not make Q. say, Doctor, he went to work that morn- ing, him have a and this work made fatal doing saying heart I am attack. type of that there be a causal re- work could lationship and his heart this work you agree with that? Do attack. be? saying could there You’re
A. be. Yes, could there
Q. yes. be,1 say could could1 A. I then, Mr. opinion, did your Doctor, in Now, Q. contribute Kearby’s at attack? heart that. answer I can’t afraid I am
A. fluid you state did Doctor, now Q. indication chest, was an in the place or pneumoconiosis, would bronchitis heart, correct? is that place stress could Yes. A.
[*] [*] [*] coronary artery you he had And know that Q. disease? myself, I don’t know other than his record.
A. Well, his record shows that? *9 Q.
A. Yes. necessarily is a not caused condition Which
Q. any activity, right? particular is that A. That is correct. Physiological in nature?
Q.
A. That is correct.
1Emphasis mine. referring certificate, death And
Q. your opinion had a that he thrombosis of a coronary artery, right? more, one or is that right. A. That’s Producing myocardial infarction, a'
Q.
right? true.
A. That’s layman we Or what call a heart Q. attack? Right. A. And
Q. he died? Right.
A.. beyond you know, that, DoQ. what caused coronary death, artery other than that he had disease that in-'a resulted thrombosis that re- sulted a heart attack.
A. I do not. telling not this Referee if You are in-
Q. pneu- had chronic bronchitis deed moconiosis, you? attack, this caused his heart are A. No. telling You are not
Q. him that? No.
A. that, if he telling the Referee you -are And Q. or the Seventeen on November did caused before, week or the day before *10 attack? heart
1107 A. No. is- not for consideration finding that the referee’s
I agree
courts,
no
basis
proper-
and that
there
knowledge.
to his personal
to resort
for die referee
correct, however,
that
there
in his statement
He was
all
With
rely upon.
to
was no
expert
opinion
the commis
I
majority
due respect,
suggest
sion,
thing
did the same
consciously
unconsciously,,
or
so,
e.,Ú make a finding
saying
did without
referee
to
I do
without medical
testimony upon
rely.
argue
question
not
could
anyone
think that
peculiarly
on this
is not addressed
posed
appeal
-
or
is the
knowledge
realm of scientific
sort
determination
the Workmen’s Compensation Com
mission could make independently
the basis
upon
its own medical
Sons,
conclusions. See W.
&
Shanhouse
Simms,
Inc. v.
86,
Ark.
272 S. W.
68.
2d
confident
I was
this court had reached the ex-
in
testimony
limits on uncertain medical
heart
treme
Adams,
v.
Ark.
cases in
Bradley County
there,
I
adhere
the views I expressed
S. W. 2d
not,
if
but even
I did
this evidence is
too
far
conjectural
of fact
a case
commission’s
justify
within
question
where
the realm
peculiarly
scientific knowledge.2
course,
Of
mathematical
certainty
required
connection,
show
causal
but
reasonable medical
certainty should be.
so,
Without
we
saying
recognized
principle
Georgia-Pacific Corporation
v. Craig,
tion. See Chapman this is 655, appropriate I submit W. S. 2d 324 decision to be abandon in this We appear distinction. distinctions. these appropriate ing Larson, Compensation in Workmen’s Professor 2 sub- has this comment (1969), Law 304 79.59 § ject:
* * * awards tendency to increasing accept not be medical should testimony unsupported by establish- necessity the basic to obscure allowed in all expert testimony medical causation by ing cases—and even and routine but- the simple is desirable and highly evidence these casés such presentation. well-prepared part a rule followed this court is applying I regret the authority minority jurisdictions a decided In addition to au- an intermediate court. appellate cited in my thorities dissenting opinion Bradley Adams, like v. I should to call attention County supra, to the following: medical testimony where only
Award reversed be remotely possible, causal connection not must show probability, medical evidence cause v. Steel Carnegie-Illinois Stacey mere possibility. 205, E. (1951). 101 N. 156 Ohio St. 2d 897 Corp., and al injury relationship causal Where obvious, medical unequivocal is not accident leged Co., v. Coal Lingle necessary. Lingle testimony (1964). A. Pa. 201 2d 279 Super. 203 expert testimony must provide Claimant probability. a medical as causation establish M. P. N. 2d Corp., v. Ebasco Gammon (1965). was a possibility Medical evidence or aggravated was caused occlusion coronary fatal an award. exertion, to support held v. Gregory, Company Telephone Bell Southwestern 399 P. 1964). 484 (Okla. 2d of the wit- testimony of the the uncertainty
With to even admit ness, possi- reluctance and his extreme connection, I unable to fathom the am causal bility *12 finds substantial evi- the majority reasoning by a divided commission. this finding dence to support court’s I would affirm circuit judgment.
Brown, in this dissent. J., joins NEGOVANOV, P. Encho Gerov a/k/a Penio Negavanoff, Nacheva, Geroff and Elena Gerova a/k/a Betty Elena Nikolova Macheva WENSKO v. 5-5300 W. 2d 455 S.
Opinion delivered June