specially concurring.
I join the majority decision without reservation. I specially concur in order to offer additional considerations upon remand.
Worker Robinson suffered a fatal myocardial infarction immediately after investigating a strange noise at an L.B. Jackson well site. Robinson’s wife, who regularly accompanied him on his guard duty, reported that he had run about a block in the dark in response to a noise. The medical expert offered by Claimant in support of her claim for death benefits stated that the excitement and running during this work activity precipitated Robinson’s death.
Avco Corp. v. Swartzlander, 470 P.2d 340, 344 (Okla.1970), held that a heart disability caused or precipitated by a strain or exertion while the employee is doing his work in the usual and customary manner is compensable although the precipitating exertion is not unusual. The accidental strain or exertion need not be the sole cause of the heart disability, but it is sufficient if it is a direct and contributing cause.
Whether a heart attack suffered by a workman resulting from strain and exertion arising out of and in the course of his employment or from other causes which are unrelated thereto and disconnected therefrom, presents a question of fact for the determination of the [workers’ compensation tribunal], whose finding on such issue will not be disturbed by this Court on review when based on competent evidence reasonably tending to support it.
Id. at 344 (emphasis added).
In Meadow Gold Dairies v. Oliver, 535 P.2d 290, 294 (Okla.1975), the court stated such a determination was to be made “upon consideration of skilled expert testimony.” The court also indicated a claim is supported where the “basis for expert opinion testimony, which fixed the causal connection between deceased’s employment and death, substantially incorporated and was entirely consistent with the facts which claimant’s proof fairly tended to establish.”
The only “skilled expert testimony” in the record is the deposition of the doctor offered by Claimant in support of the claim and Respondent’s hypothetical. In evaluating the “competency” of these, the three-judge panel should bear in mind that the Respondent’s hypothetical was propounded to a witness who was not listed prior to trial as required. It was also offered without opportunity for Claimant to confront and cross-examine the witness. In that respect, the hypothetical is in violation of both due process and the court’s rule. Its competency is doubtful. With regard to the deposition of Claimant’s doctor, the three-judge panel should generally consider the Swartzlander test and the “substantial incorporation and consistency with proof” test of Oliver in evaluating this skilled expert’s opinion of causal connection between the worker’s employment and death.