Opinion
39620.
DECIDED SEPTEMBER 6, 1962. REHEARING DENIED SEPTEMBER 25, 1962.
Workmen's compensation. Coweta Superior Court. Before Judge Knight.
Sanders Mottola, Chas. Van S. Mottola, for plaintiff in error.
Henry N. Payton, contra.
Where reliance is made upon circumstantial evidence alone for proof of one of the essential facts assumed in the framing of a hypothetical question, the trier of fact may consider the answer to the question only if it has first determined that the assumed fact has been satisfactorily established.
DECIDED SEPTEMBER 6, 1962 — REHEARING DENIED SEPTEMBER 25, 1962.
This is a workmen's compensation heart case. The decedent went to work apparently in good health. He worked during the morning and until about 1:30 p. m. when he fell out and died immediately. Decedent was a lathe operator in the machine shop where he tooled die blanks of steel to the desired size. The dies to be tooled ranged in weight from 3 to 125 pounds, but the heaviest dies were used no oftener than once in a fortnight. The dies to be put into the lathe were stored some five feet off the floor. At the time of his death there was a die in his lathe weighing between 100 and 125 pounds, on which work had been done requiring no more than thirty minutes. No one saw the decedent lift the die and there was no testimony that anyone had helped him in getting it placed in the lathe. Decedent had been instructed to get help in moving anything that was too heavy for him and had been warned by his doctor to avoid over-exertion.
Compensation was awarded the claimant and appeal was taken to the superior court, where the award was affirmed.
The primary question in this case revolves around a hypothetical question asked of the medical witnesses. The question related the physical facts set out above but also assumed that the decedent had lifted the die to the lathe. One of the doctors testified in response to the hypothetical question that the exertion of lifting the die did precipitate a coronary occlusion, which opinion is sufficient to support the award in this respect. U.S. Cas. Co. v. Thomas, 106 Ga. App. 441 ( 127 S.E.2d 169). The employer insists that it was not proven that the decedent lifted the die and that the director therefore could not consider the answer.
The claimant replies that on at least one occasion the question was asked and there was no objection and that any error in admitting the answer was harmless. While this is generally true, the rule is of no help to claimant here since in workmen's compensation cases the director may admit any and all evidence but presumptively relies only on competent and valid evidence in making his findings of fact to support the award. Liberty Mut. Ins. Co. v. Meeks, 81 Ga. App. 800, 803-805 ( 60 S.E.2d 258); Rittenhouse v. U.S. Fidelity c. Co., 96 Ga. App. 407 (1) ( 100 S.E.2d 145); General Acc. Fire c. Corp. v. Teal, 100 Ga. App. 314 (2) ( 111 S.E.2d 113). The critical fact here is the exertion, and if this fact was not proved by any method, the answer to the hypothetical question could not be used as the basis for the award. See Kuttner v. Swanson, 59 Ga. App. 818 (5) ( 2 S.E.2d 230); Ellis v. Southern R. Co., 89 Ga. App. 407 (1) ( 79 S.E.2d 541); Mutual Ben. Health c. Assn. v. Hickman, 100 Ga. App. 348 (2), 361-362 ( 111 S.E.2d 380).
Claimant relies on circumstantial evidence as set out in the statement of facts to prove the exertion. The employer admits that this circumstantial evidence points to the fact of exertion but contends that the circumstances do not point to only one conclusion, as required by Employers Liab. Assur. Corp. v. Woodward, 53 Ga. App. 778 (3) ( 187 S.E. 142). It contends that the facts that decedent was instructed by the company to have assistance and that he had been told by his physician to avoid over-exertion makes more than one conclusion possible. Whatever else may be the meaning of Woodward, we think that the circumstances relied on to rebut the conclusion must be related to the specific incident, if that is the type of fact relied on to support the conclusion. Here the facts in the latter category (i.e., that the die blank was placed in the lathe and that no one testified that he helped the decedent put it there) relate to the specific incident to be established by circumstantial evidence. See Herman v. Aetna Cas. c. Co., 71 Ga. App. 464 (3), 469-470 ( 31 S.E.2d 100).
The question of whether the exertion was proven by the circumstances was one for the trier of fact. Metropolitan Life Ins. Co. v. Saul, 189 Ga. 1, 7-8 ( 5 S.E.2d 214); Freeman v. State, 190 Ga. 335, 337 ( 9 S.E.2d 236). In this context, if the director should find that the exertion was not proved by circumstances, then he could not use the answer in making his findings and award and an award of compensation would be without evidence to support it on this vital point. See Callaway Mills Co. v. Hurley, 104 Ga. App. 811 (1), 814 ( 123 S.E.2d 7). However, since the director did find that the fact of exertion was proved, he was authorized to utilize the answer to the hypothetical question, whether objected to or not, and thus the award is supported by competent evidence.
This disposition of the case makes it unnecessary to consider claimant's contention relating to the presumption that a death arose out of and in the course of the employment where an employee is found dead in a place where he might reasonably be expected to be in the performance of his duties (see Hartford Acc. c. Co. v. Cox, 101 Ga. App. 789, 115 S.E.2d 452), and the employer's contention that this presumption had been rebutted. Further, it is not necessary to pass on the issue of the admission of a death certificate and an autopsy report.
Judgment affirmed. Carlisle, P. J., and Russell, J., concur.
ON MOTION FOR REHEARING.
Counsel for plaintiff in error urge that the only fact offered by the claimant for carrying the burden of proving the fact of exertion was the presence of the die blank in the lathe. We think that there was more. The supervisor of the department where the deceased employee worked testified that the die blanks were stored about five feet from the lathe, that normally a lathe operator did have help in moving the heavy ones into place and that "all he had to do in using it was roll it over there to the floor, and how he got this piece into the lathe I don't know." A fellow lathe operator testifying as to the manner in which the operation was carried on in the shop said that the operator handled all of the different types of die blanks, putting them onto the lathe, that "I just pick them off the floor and lay them in the lathe." He further testified that the work he did and that which the deceased employee, Hutchens, did were the same. The evidence disclosed that very little work had been accomplished on the die blank in Hutchens' lathe, indicating that it had not been in place for more than about 30 or 40 minutes, and that he suffered his fatal attack at the lathe around 1:30 p. m., having been at work since 8 a. m.
The director, as everybody else, knew that the die blank had to be moved into place by somebody, and since it was a part of the usual work of the lathe operators in that shop to lift the die from the floor onto the lathe and since there was nothing in the evidence to indicate that the die on which Hutchens was working at the time of his death had gotten there in any other manner, there was enough circumstantial evidence to authorize the finding that he did so. That Hutchens had been admonished to get help in lifting blanks that were too heavy for him or that his physician had warned him to avoid over-exertion leads to no different conclusion, for it was simply a matter of judgment on his part as to whether the lifting of any die blank would result in over-exertion or whether he would need help in lifting it.
Motion denied.