Opinion
21810.
ARGUED OCTOBER 9, 1962.
DECIDED NOVEMBER 8, 1962. REHEARING DENIED DECEMBER 3, 1962.
Certiorari to the Court of Appeals of Georgia — 106 Ga. App. 441 ( 127 S.E.2d 169).
Henley Epstein, Clyde W. Henley, Leon S. Epstein, William Hall, for plaintiffs in error.
Woodruff, Savell, Lane Williams, John M. Williams, contra.
1. The testimony of nonexpert witnesses who observed the exertion of an employee exercised in the discharge of the duties of his employment and the appearance of such employee, his obvious weakness and apparent state of being in considerable pain immediately after such exertion, together with his declarations that he was in need of medical attention and other surrounding circumstances such as the fact that he dies shortly thereafter without recovering from such seizure, even in the absence of expert medical testimony, is sufficient evidence to make an issue of fact on a hearing before the Workmen's Compensation Board as to whether the employee's death was caused by an accident arising out of and in the course of his employment. U.S. Cas. Co. v. Smith, 162 Ga. 130 ( 133 S.E. 851); Fidelity Cas. Co. v. Adams, 70 Ga. App. 297 ( 28 S.E.2d 79); Travelers Ins. Co. v. Young, 77 Ga. App. 512 ( 48 S.E.2d 748); Hartford Accident c. Co. v. Waters, 87 Ga. App. 117 ( 73 S.E.2d 70); Hoffman v. National Surety Co., 91 Ga. App. 414 ( 85 S.E.2d 784); Crescent W. W. Co. v. Cyr, 200 F.2d 633, 637. As held in Lumbermen's Mut. Cas. Co. v. Griggs, 190 Ga. 277 ( 9 S.E.2d 84), it is not essential to the validity of an award in favor of the employee's dependents that the exertion be greater than that customarily employed by him in the course of his employment. See also Hardware Mut. Cas. Co. v. Sprayberry, 195 Ga. 393 ( 24 S.E.2d 315); Williams v. Maryland Cas. Co., 67 Ga. App. 649 ( 21 S.E.2d 478); Lumbermen's Mut. Cas. Co. v. Bridges, 81 Ga. App. 395, 404 ( 58 S.E.2d 849).
2. A heart attack or other sudden seizure experienced by an employee while physically exerting himself in the course of his employment and caused by such exertion has uniformly been recognized by the opinions of this court and the Court of Appeals as an accident arising out of and within the course of the employee's employment within the meaning of Code Ann. § 114-102 (Ga. L. 1946, pp. 103, 104), and the fact of such accident when proved by competent evidence shifts the burden of evidence to the employer to show by a preponderance of evidence that the disability or death of the employee was not the result of that accident. Royal Indem. Co. v. Land, 45 Ga. App. 293 ( 164 S.E. 492); New Amsterdam Cas. Co. v. Brown, 91 Ga. App. 12 ( 84 S.E.2d 594).
3. Where, as in this case, there is a conflict in the evidence of nonexpert witnesses furnishing proof of facts and circumstances from which it may be reasonably inferred that the exertion of the employee in the course of his employment resulted in his death and there is testimony of expert medical witnesses that the activity of the employee in the performance of his duties may have caused such an attack, but in their opinions did not have that result and could have been sustained by the employee when inactive or in repose, it is a question of fact for the determination of the Board of Workmen's Compensation as to which conclusion is correct. Travelers' Ins. Co. v. Thornton, 119 Ga. 455, 456 ( 46 S.E. 678); Manley v. State, 166 Ga. 563, 566 (19) ( 144 S.E. 170); Autry v. General Motors c. Plant, 85 Ga. App. 500 ( 69 S.E.2d 697). The deputy director, as the trier of fact, is not bound to accept the opinion or theory of any particular medical witness; and a jury is not bound by the opinions of expert witnesses. Boyd v. State, 207 Ga. 567 (1) ( 63 S.E.2d 394); Holmes v. Harden, 96 Ga. App. 365, 371 ( 100 S.E.2d 101). This is but a practical application of the provisions of Code § 38-1710. In U.S. Cas. Co. v. Smith, 162 Ga. 130, 137, supra, it is further observed: "The distinction between proximate and remote causes is not to be too rigorously pressed in the application of the Workmen's Compensation Act."
4. The holding of the Court of Appeals in this case is contrary to what is held in the preceding syllabus and consequently is reversed.
Judgment reversed. All the Justices concur.
ARGUED OCTOBER 9, 1962 — DECIDED NOVEMBER 8, 1962 — REHEARING DENIED DECEMBER 3, 1962.
This case arose upon the application of a deceased employee's dependent to the State Board of Workmen's Compensation for compensation. Succinctly stated, the applicant's evidence showed the deceased was on the day of his seizure discharging the duties of his employment, which consisted of "driving a truck, delivering and unloading bundles of newspapers, weighing between 25 and 50 pounds." Immediately upon the completion of his work he reported to his employer's circulation office at Chamblee where a fellow employee was stationed. The employee, who testified upon the hearing before the deputy director of the compensation board, related in response to counsel's questions: "Q. Was the normal procedure for the drivers to get out and assist in unloading the papers? A. Yes sir. Q. On this day, did you see Mr. Thomas (the deceased) unloading any papers? A. Yes, sir, he unloaded a couple of bundles, I know. I don't know how many but he unloaded at least two bundles, I would say, yes, sir. Q. Did he come into your office with a bundle in each hand? A. Well now, I really — couldn't say. I mean I know he carried a couple of bundles or a bundle inside as he went into the building. Q. Did you have any conversation with him at that time? A. Yes, sir, I did. Q. What was your conversation with him? A. Well, he said he was feeling, you know bad, and I think his exact words he felt like he had been inhaling battery acid. Q. And then what did he do? A. Well, he laid down on some papers and he moved about quite a bit, moving from place to place. And each time he would lay down. He finally got a chair and sit outside. Q. Did he ask you if it would be all right to lay down for a minute? A. Well, he didn't ask, he just laid down. Q. Did you have any later conversation — how long did he lay down, first? A. Oh, I imagine ten or fifteen minutes from the time he first laid down until I called the ambulance. Q. And this was after he had unloaded the papers, is that right? A. That bundle or two that he unloaded. Q. Yes. And did you have any other conversation with him while he was lying down? A. I, he asked me to call an ambulance for him before; he asked me to call the ambulance. Q. What did he exactly say to you? A. He asked me if I could get him some help. And I asked if he wanted me to call an ambulance and he said yes." There was other evidence in a measure corroborative of the witness's testimony.
There was ample evidence that without recovering from the seizure and about three weeks thereafter the employee died. The doctors diagnosed the cause of his death as coronary occlusion resulting in an acute myocardial infarction. The testimony of medical experts was that exertion could result in aggravating or precipitating the heart condition, but that in their opinion the employee's exertion did not, and that coronary occlusions may be experienced while one is inactive or even in repose.
The deputy director entered an award in favor of the employee's dependents; the judge of the superior court affirmed the award. The Court of Appeals reversed the trial judge and this court granted certiorari.
The opinion of the Court of Appeals is predicated upon two conclusions: first, that although there be other proof that the causation of an employee's heart attack, experienced in the course of his employment, was physical exertion, it is necessary for medical experts to testify that the seizure not only might, but actually did, in their opinion, result from the exertion, for exertion is essential to a valid award in favor of the employee or his dependents; secondly, that where there is proof from facts testified to by nonexpert witnesses that a heart attack experienced by the employee in the course of his employment was caused or precipitated by the activity of the employee in the discharge of his duties, a finding in favor of the employer is demanded by the testimony of expert witnesses that the attack was not necessarily caused by exertion on the part of the employee and that in their opinion it was not the result of the employee's activity.