Opinion
38872.
DECIDED JUNE 26, 1961.
Workmen's compensation. Troup Superior Court. Before Judge Knight.
Wyatt Morgan, Lewis R. Morgan, for plaintiff in error.
Richter Birdsong, A. W. Birdsong, Jr., James E. Weldon, contra.
There is competent evidence to support the findings and award of the State Board of Workmen's Compensation. This court is without authority to reverse the award.
DECIDED JUNE 26, 1961.
The claimant before the State Board of Workmen's Compensation, in her behalf as the widow and for dependent children, made claim for compensation benefits arising out of the death of the husband, who died shortly after eating his noon meal. The deceased, together with several other county employees, was cutting underbrush with a brush hook on a county soil pit, the brush hook weighing about three pounds. He had worked about two and a half hours before stopping at noon to eat. Following lunch the deceased went to sleep in the back of the truck, and had been asleep some ten or fifteen minutes when just before the time of return to work he groaned and died in his sleep.
After a hearing before the State Board of Workmen's Compensation, at which extensive testimony was taken, the director made certain findings of fact, including that the deceased had for some time complained of pain in his chest and arms; that he died in about 30 minutes of having stopped work for the noon meal; that the cause of his death was a coronary occlusion; that the activity engaged in by the deceased immediately prior to his death would be sufficient exertion to precipitate a coronary occlusion in a person already having a heart disease; that the deceased had a pre-existing heart disease; that the activity engaged in by him was sufficient to cause the fatal attack; and that he died as a result of an accidental injury arising out of and in the course of his employment. Following findings of the common-law marriage between the deceased and the claimant, the director entered an award of death benefits for the claimant and for the use and benefit of named children for a period not to exceed 400 weeks. The other facts material to the decision are stated in the opinion.
The employer and insurer appealed to the entire board, which, after a hearing, affirmed the award of the deputy director, with one director dissenting. An appeal was taken to the Superior Court of Troup County, Ga. which modified the award because of a mathematical error, but otherwise affirmed it. The defendants excepted to this judgment of the superior court, contending that there was no lawful basis for denying the appeal and sustaining the award because: (1) The facts as found by the directors do not support the order or decree as there is no evidence as to the cause of death of the deceased; no evidence that the cause of his death was a coronary occlusion; that there was no competent evidence of any pre-existing heart disease; and that there are no facts in the record to authorize the finding of fact that the deceased died from a coronary occlusion; (2) that there is no sufficient competent evidence in the record to warrant the order or decree complained of, for the reason that the evidence was insufficient to show that prior to his death there was any exertion or physical or mental strain which in any way precipitated or contributed to his death; (3) that the order and decree are contrary to law for the reason that there was insufficient evidence in the record to show that the deceased's death was caused by a coronary occlusion, and that the directors acted in excess of their powers in admitting into evidence over proper objection the death certificate, since it was not in proper form and did not comply with Code § 88-1116, Subsection 2 or Subsection 3; and (4) that the medical evidence on behalf of the employee was to the effect that the activities of the deceased prior to the attack did not in any way precipitate or contribute to the attack, if any.
1. This is another in a long series of heart attack by exertion cases to come before this court. The question for decision is whether there is sufficient evidence to authorize the findings of fact as established by the board.
The deceased's wife testified that he always complained about his arms hurting, but that he never did go to a doctor; that he complained of pains in his chest, thinking he had indigestion, and ate peppermint candy all the time.
The supervisor testified that the deceased began work on the morning of his death around 9:30, and cut bushes with a bush blade having a handle similar to an axe; that during the time the deceased had worked he had complained about indigestion "once in a while"; that he would take mints for this condition and hit his chest; that cutting the bushes on the morning in question required swinging the blade a good many times; that the bushes were small; that the bush axe weighed about three pounds; that two or three hours of swinging it would be a "good bit of exercise." On cross-examination this witness testified that the deceased had not complained on the day of his death, but had done so several days earlier; that the deceased was laughing and talking while he was eating, and gave no indication he was feeling bad at all. Upon redirect examination, the witness testified that on the day of his death the deceased was not working at his regular job, which was running the grader.
The death certificate stated the death was caused by "acute coronary occlusion." The first medical witness to testify, Dr. (W), who signed the death certificate, testified that this was his diagnosis; that he only saw the deceased dead in the undertaker's parlor; and that he based his conclusion as to the cause of death "on the history I got from the coroner and the undertaker." The following hypothetical question was answered by Dr. (W): "Q. Doctor, I would like to ask you a hypothetical question. Assuming Rufus Henderson, the deceased, was a negro man fifty-three years of age at the time of his death and who for some time prior to his death complained to his wife Maggie Henderson of indigestion and pain in his chest and for years before his death Rufus had worked as a laborer for Troup County, Georgia, and on October 21, 1959, the day of his death, worked as a laborer and his job on the morning before his death at twelve-thirty was clearing a right of way consisting of bushes which he cut with a bush ax for approximately two and a half hours, now after this exertion Rufus sat down to eat his lunch and after completing his lunch dropped dead, Doctor would the exercise and the exertion that Rufus engaged in on the morning of October 21, 1959, the day of his death, contribute to, aggravate or precipitate the heart attack which caused his death? A. In my opinion that type of exercise all [or?] work, had this condition existed before he did, it would contribute to it." On cross-examination Dr. (W) testified that it was difficult to answer whether the exertion of the deceased on the morning in question had anything to do with his death, and that he was not saying that it did but that it could have, and that the deceased probably had a pre-existing heart condition. He further testified that the lunch of shine bone, candied yams, and a pop drink the deceased had eaten "would have been — had more effect that [sic] the exertion." Dr. (W) had never treated the deceased, and the first time he saw him was at the undertaking establishment after his death. He further testified: "Q. Doctor, wouldn't it be more likely that if a man was — had eaten dinner and had slept for ten or fifteen minutes, you couldn't say that the exertion that he had made prior to the time of his lunch could in any have brought it on? A. In my opinion, no, if he had slept fifteen minutes certainly he had rested well and going to bring it on should have brought it on before then." Furthermore, "Q. Your opinion is that he died of a heart attack? A. That is my opinion."
Dr. (W) also testified that the exercise the deceased had had on the morning in question would have aggravated his heart condition "if he had a heart condition," and that it was problematical whether the deceased died of a heart attack as "there was not a post done"; and that complaints of indigestion and of pain in the arms could indicate more than one thing, "could indicate hypotension, or arthritis, myalgia, influenza, or pettic [sic] ulcer or any of the intestinal conditions."
Dr. (M) testified that it was possible for a person to have a heart condition without any complaints; that it would be possible for a person who complained of indigestion to have a heart condition and not know it; that the most likely diagnosis when a person who had symptoms of indigestion and pain in his chest for years and who suddenly drops dead would be a cardiac condition. In answer to the same hypothetical question which was asked of the previous medical witness, this doctor stated that assuming the deceased had a heart attack the exercise and exertion could have contributed to, aggravated, or precipitated the attack. On cross-examination, this witness testified he had, to his knowledge, never examined the deceased; that due to the fact that the deceased had been doing exercise all his life either in the chaingang, working in work camps, or construction companies, he would have less tendency to be affected by exercise than a man who sat behind a desk; the meal he had eaten could have aggravated the deceased; that if exercise contributed to the attack, the attack could have come later after he had eaten lunch and slept for fifteen minutes; and that it is all very hypothetical as to what caused the attack. On redirect examination he said the exercise would be more aggravating, assuming the man had a heart attack, than the eating of the ham bone; from all these conditions that he knew the deceased could have died from cerebral hemorrhage, cerebral thrombosis, embolism to the cerebral arteries, a heart condition other than a coronary, a heart failure or pulmonary "dema"; it could have been a rupture of the blood vessel of the aorta, which is often found in colored people; that exercise could affect aneurism; that it would have been a respiratory — collapse of the lung, a rupture of the pleura when the lung suddenly collapses. On redirect examination, he stated that violent exercise of three hours would aggravate some of these conditions which were possible causes of the death; the aneurism usually happens after exercise, but he didn't think it would have any influence on a cerebral thrombosis but exercise might do it some good; he did not think it would affect the cerebral hemorrhage — "folks that have strokes are not generally engaged in heavy work when strokes occur." "Q. In your opinion then, the exercise and exertion he engaged in on the morning of October 29 the day of his death, assuming he had a heart attack, is this your opinion it did aggravate this condition that caused his death? A. If what you tell me is true, yes, sir." Following this he testified that no actual determination of the cause of death could be made unless there had been a post mortem or autopsy performed.
A fellow employee, Wilbur Strozier, testified that the deceased's cutting bushes on the day of his death was not his regular job, but that he ran a machine most of the time.
The final medical witness, Dr. (T), in answer to the hypothetical question previously stated and substantially identical, and concluding, "I will ask you whether or not in your opinion an acute coronary occlusion by this worker was caused by the physical work he had been performing his — before eating his lunch and went to sleep? A. I don't believe you can say this exertion caused his occlusion because he had no pain, while he was still working, feeling well at that time, he ate his dinner, I don't see how you can connect the fact that he had an occlusion maybe thirty minutes later could be caused by activity that he had during the morning. The coronary occlusion, because it can happen and frequently does happen at night, at complete rest and rarely does exertion ever precipitate these things, and then it has to be unusual and extreme exertion." Dr. (T) further testified that if exertion had contributed to the attack he would have had pain while he was still active. As to his lunch, he stated some cardiologists do think that a fatty meal may have some effect on precipitating a coronary occlusion at the time, but this is a theory that has not been proved; that there is a difference of opinion between doctors as to whether slight exertion can precipitate a heart attack, and that while the work the deceased had been doing would be an unusual exertion for the doctor, it may not have been for the deceased. This concluded the relevant medical testimony.
(a) The medical evidence in this case as summarized above is in some respects contradictory, inconclusive, and meager. However, under numerous decisions of the appellate courts of this State, if there is any evidence to support the findings of fact and the award of the State Board of Workmen's Compensation, the appellate courts will not reverse them.
The medical testimony summarized resembles rather closely that found in Lumbermen's Mut. Cas. Co. v. Bridges, 81 Ga. App. 395 ( 58 S.E.2d 849), where this court held that the board was authorized to find from the evidence that the employee's death resulted from a diseased heart condition, accentuated by physical exertion a short time before his death. In Hartford Acc. c. Co. v. Walters, 87 Ga. App. 117 ( 73 S.E.2d 70), it was held that knowledge from human experience, including medical caution against exertion, authorized the finding in that case on the weight of reasonable probabilities that the amount of exertion contributed to the cerebral hemorrhage which caused the deceased's death. In the Hartford case where the award of compensation was affirmed, the testimony of the three physicians was even less positive than here.
In this case Dr. (W) testified that it was his opinion that the deceased died of a heart attack, and in answer to the hypothetical question regarding the activities of the deceased and the exertion immediately before death, testified that the type of exercise would contribute to the heart attack. Dr. (M) testified that the most likely diagnosis, where a person has had symptoms of indigestion and pain in his chest for several years and suddenly drops dead, would be a cardiac condition. The testimony of several lay witnesses included evidence that the deceased had complained of such pains from time to time. The deceased's supervisor testified that the deceased's regular job was running a machine rather than swinging a brush axe. Taking Dr. (W)'s testimony that in his opinion the deceased died of a heart attack, together with the evidence of exertion and death immediately following, we cannot say that there is not any evidence to support the finding of the State Board of Workmen's Compensation that the deceased had a pre-existing heart disease, and that the exertion immediately prior to his death was sufficient to precipitate a coronary occlusion.
(b) The contention of the defendant that the death certificate was not properly admitted in evidence has merit. However, this merely results in the certificate's not being prima facie evidence as to the facts stated in it. Aetna Cas. c. Co. v. Pulliam, 99 Ga. App. 406 ( 108 S.E.2d 823). Ignoring its presence in the record, there was still evidence to support the findings of fact and the award. The presence of the improperly executed death certificate did not harm the defendant. In the Aetna case this court affirmed an award supported by the evidence, even though there was there in the evidence an improperly executed death certificate. See also Bituminous Cas. Corp. v. Elliott, 70 Ga. App. 325, 329 ( 28 S.E.2d 292). Furthermore, that inadmissible evidence was admitted over objection will not alone justify setting aside the findings in a hearing before the board. Davis v. Menefee, 34 Ga. App. 813, 814 (2) ( 131 S.E. 527).
Judgment affirmed. Felton, C. J., and Hall, J., concur.