Opinion
35452.
DECIDED JANUARY 27, 1955.
Workmen's compensation. Before Judge Hendrix. Fulton Superior Court. October 6, 1954.
Currie McGhee, for plaintiff in error.
Marshall, Greene Neely, contra.
Where, as here, compensation is sought under the Workmen's Compensation Law, based on an accident growing out of the death of the employee due to a heart attack alleged to have been precipitated by exertion on the part of such employee while in the course of his employment, in order for there to be a recovery on the part of the claimant, either the evidence must show the work engaged in by the employee to have been sufficiently strenuous or of such a nature that, combined with the other facts of the case, it raises a natural inference through human experience that the exertion contributed toward the precipitation of the attack, or there must be medical testimony that the exertion, however slight, would have been sufficient to precipitate such an attack. Here the amount of exertion was insufficient to meet the first condition, and the second is unsupported by evidence.
DECIDED JANUARY 27, 1955.
In this workmen's compensation proceeding the claimant, Mrs. Rena A. Hoffman, sought compensation from her husband's employer, Realty Operations, Inc., and its insurance carrier under the following state of facts: Harold Hoffman was employed as an "air conditioner." On the day in question he picked up a ladder, and was then sent from one building to another; he arrived there about 11 a. m., talked with another employee, drank a Coca-Cola, went to lunch, went to see his doctor, returned to the second building and had another Coca-Cola, then went down an elevator with the employee to the basement. He stepped up one step from the elevator to the room, and he and the other employee stood and discussed various things. About 15 to 18 minutes after entering the room, Hoffman squatted down under an overhead pipe, raised his arm to the pipe and said, "That pipe . . . ," fell over and died almost immediately. The cause of death was coronary thrombosis, with arteriosclerotic coronary and arterial disease. The deceased had a heart attack about seven years previously and the arterial disease was pre-existing, and he had remained under treatment since that time. It was established that a person with heart disease is more prone to such attacks than one who has no such disease, following exertion. The following medical opinion evidence was offered:
"Q. Well, in your opinion would there be any physical exertion involved in assuming a squatting position, sitting on your haunches and raising your arm up to point? A. There is no doubt the physical exertion would act as an exciting factor in the producing of another myocardial infarction and coronary thrombosis based on the probability relative to the degree of physical exertion. Q. If there was no other known intervening cause, assuming only the physical exertion in the last question, in such a circumstance would it be proper to assume that the physical exertion, slight though it might be, would tend to precipitate the heart attack? A. Again I cannot see where I can make a positive answer to that statement in that it presumes circumstances over which I have no ability to evaluate."
The witness also stated that "any physical exertion would act as an exciting factor which may be relative to the degree of physical exertion."
A second medical witness stated that either mental strain or physical exercise can, and has often been known to, precipitate a recurring attack in such a patient. Certain other hypothetical questions are not herein considered because they included facts not in evidence.
The award of the director was entered up in favor of the claimant, but this award, on appeal, was reversed by a Judge of the Superior Court of Fulton County. The last judgment is here assigned as error.
The sole question here is whether the claimant widow carried the burden of showing that her husband's exertion in and about the duties of his employment contributed toward precipitating the seizure from which he died. In Hartford Accident c. Co. v. Waters, 87 Ga. App. 117 ( 73 S.E.2d 70) it was held that the amount of exertion shown by the evidence in that case authorized the conclusion that it precipitated or contributed to the cerebral hemorrhage which caused the employee's death. In Shelby Mutual Cas. Co. v. Huff, 87 Ga. App. 463, 465 ( 74 S.E.2d 251) the following was held: "Where it is shown that the cause of death is cerebral hemorrhage or some other disease with which exertion on the part of the employee as shown by the evidence may be expected to concur in precipitating an attack, and where such employee, so suffering, exerts himself in the course of his employment, these facts are sufficient under the above ruling to authorize an award in the claimant's favor. Both the disease and the exertion must be shown, however." In a heat stroke case, Globe Indemnity Co. v. Simonton, 88 Ga. App. 694, 696 ( 76 S.E.2d 837) it was held as follows: "But, to carry the burden, the claimant should have some evidence in the record as to the exertion which actually existed at the time of the heat stroke, and some testimony, opinion or otherwise, that the quantum of physical exertion present would contribute to the seizure."
In Williams v. Maryland Cas. Co., 67 Ga. App. 649 ( 21 S.E.2d 478) it was held that "the particular injury complained of need not have been foreseen or expected, but it is sufficient if, after the injury, it can be traced to the employment as a contributing cause," and it was in that case decided that where an employee has been working all day with a heavy sledge hammer in a stooped-over position, using the hammer in calking a pipe, and such person has serious heart trouble and enormously high blood pressure with arteriosclerosis, no reasonable inference can be drawn as a matter of law, other than that the work and exertion of the deceased, in his subnormal and diseased condition, caused the collapse from which he died. In Lumbermen's Mutual Cas. Co. v. Griggs, 190 Ga. 277 ( 9 S.E.2d 84) there was opinion evidence that the exertion of the claimant in unloading a car of cement increased the blood pressure to the extent of causing the ruptured blood vessel and stroke. In that case, at page 284, it was also stated "that to award compensation under the act there must be evidence to show that the employment contributed to the accident; and ultimately the case must turn on whether the disease, standing alone, caused the injury or whether it was caused in part at least by the work." While the exertion shown in Bussey v. Globe Indemnity Co. 81 Ga. App. 401 ( 59 S.E.2d 34) and in Thompson-Weinman Co. v. Yancey, 90 Ga. App. 213 (82 S.E.2d 725) was slight, there was opinion evidence that the quantum of exertion shown by the evidence in the case was sufficient to contribute to the precipitation of the attack. In Travelers Ins. Co. v. Young, 77 Ga. App. 512 ( 48 S.E.2d 748) the court grounded its opinion that a finding of accidental injury was demanded where the employee suffered heart failure while in the course of fighting fires, which was shown to be very strenuous work, without reference to testimony of medical experts.
From the above, it must be concluded that it must be shown by evidence, opinion or otherwise, that the exertion attendant upon the duties of employment, no matter how slight or how strenuous, and no matter with what other factors — such as preexisting disease or predisposition to attack — it may be combined, was sufficient to contribute toward the precipitation of the attack. Where evidence as to the work engaged in shows it to be sufficiently strenuous, or of such a nature that, combined with the other facts of the case, it raises a natural inference through human experience that it did so contribute, this is sufficient. In other cases, the opinions of experts that the exertion shown by the evidence to exist would be sufficient is also sufficient to authorize a finding on the part of the fact-finding tribunal that it did. But, in one way or another, the fact must appear.
In the present case, practically the only evidence of exertion on the part of the employee in the course of his employment is that, while discussing certain pipes, he squatted down and pointed to one of them. Thus, this case is far weaker on its facts than any above cited. In addition, the claimant's physician refused to express an opinion that such facts would be sufficient in his opinion to authorize an affirmative conclusion.
Accordingly, there was no evidence to support the finding of fact that the exertion of the employment contributed to the deceased's death, and the judge of the superior court did not err in reversing the award of the single director.
Judgment affirmed with direction that the case be remanded to the Board of Workmen's Compensation with leave to the claimant, if she desires, to present testimony on this issue. Gardner, P. J., and Carlisle, J., concur.