Opinion
36076.
DECIDED FEBRUARY 21, 1956.
Workmen's compensation. Before Judge Moore. Fulton Superior Court. November 16, 1955.
Frank M. Swift, Woodruff, Swift Stephens, for plaintiff in error.
Ruby S. Poole, contra.
1. Where compensation is sought under the provisions of the Workmen's Compensation Law for death of an employee by reason of a heart attack which it is contended was proximately contributed to by the exertion of the employment, it is sufficient either to show such exertion as raises a natural inference through human experience of such causation, or to show by expert medical testimony that the amount of exertion actually existing might be treated as a causative factor. Hoffman v. National Surety Corp., 91 Ga. App. 414 ( 85 S.E.2d 784).
2. The direct and opinion testimony in this case was sufficient to support the award of the director in favor of the claimant, widow of the deceased employee.
3. Code § 114-404 as amended (Ga. L. 1955, pp. 210, 211) provides in cases of total incapacity for a yardstick fixing the weekly compensation payable, subject to the over-all limitation that "in no case shall the period covered by such compensation be greater than 400 weeks, nor shall the total amount of compensation exceed $10,000." Code § 114-413 provides that in case of compensable death under the provisions of the act the weekly compensation payable shall be 85% of compensation payable under Code § 114-404, subject to the over-all limitation: "for a period not exceeding 400 weeks from date of injury." Under Code § 114-404 as amended there is a limitation in time of the same duration as in Code § 114-413, but the former Code section contains a limitation as to total amount which is not included in the latter. Accordingly, the director here correctly figured weekly compensation on the basis of 85% of the formula for weekly compensation set out in Code § 114-404 (60% of average weekly wages, when not less than $10 nor more than $30 per week) and allowed such compensation for a period of 400 weeks. That the total thus arrived at is $10,200 does not make the award illegal, there being no provision under Code § 114-413 limiting the over-all liability of the employer.
The judge of the Superior Court of Fulton County did not err in affirming the award of the single director.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
DECIDED FEBRUARY 21, 1956.
The claimant, Mrs. Elizabeth Shirley, filed a claim for death benefits with the Board of Workmen's Compensation against the employer of her husband, Refrigerated Transport Company. Upon the hearing before the deputy director the evidence in substance was that the deceased employee, Shirley, was the owner of a large refrigerated tractor-trailer which he leased to the employer and was himself an employee but hired a driver-helper named Maddox; that Shirley approximately two years previously had had a severe heart attack; that the doctor had recently given him permission to return to work but gave him medicine for this condition which he frequently took; that the drivers were alternating in taking a refrigerated load of chickens from Georgia to Milwaukee, Wisconsin; that the trip consumed approximately 2 days; that Shirley drove 5 or 6 hours each on April 4 and 5, 1955; that about 8 p. m. of the 5th he said either that he was tired or that he was not feeling well and lay down on a sleeper berth in the rear of the cab and Maddox drove on into Milwaukee, arriving there about 5 a. m. on the morning of April 6th; that at 7 when the terminal was opened up Shirley backed the vehicle into the loading space; that he then woke up his assistant; that about 10 minutes later they had a coca-cola after which Maddox started unloading chickens; that he thought he had been doing this for about an hour when, shortly after Shirley left him at the back of the van, a man told him there was something the matter with his buddy; that he found Shirley sitting under the wheel of the cab and having a seizure; that in response to his remark that he would call a doctor, Shirley said not to do that, he might feel better soon; that he nevertheless called help and Shirley was immediately taken to the hospital where he was found dead on arrival. Maddox testified that he had noticed nothing wrong with Shirley until this happened; that he appeared normal while they were having their drink but that he was sleepy and not noticing particularly; that he appeared normal thereafter until found in the cab. The medical testimony was in dispute but there was testimony that driving any length of time was a strain on the heart, and that the exertion of the employee during the trip and in parking the van would have been sufficient to precipitate a coronary occlusion. There was testimony and evidence which would have authorized, but did not demand, a conclusion that the employee was feeling "normal" for such a length of time after arrival at the destination as to preclude the possibility of the exertion having a causative relationship to the attack, and the director found as a matter of fact that such was not the case.
The employer and its insurance carrier appealed directly from the award to the Judge of the Superior Court of Fulton County, who affirmed the same, and the exception is to this judgment.