Home Indemnity Co. v. Guye

Birdsong, Judge,

concurring in the judgment only.

I concur in the judgment of reversal in this case but I am constrained to base my reversal upon a more restricted basis than that advanced by my brothers in the majority. It is noted in the majority opinion that claimant related that he had experienced chest pains for several years following excessive smoking or exertion. I would give little or no weight to that evidence inasmuch as the unrebutted evidence shows that claimant attributed those pains to certain polyps that had been surgically removed prior to the "heart attack” which occurred on January 22, 1976.

Of greater significance is the statement in the majority opinion that there is no evidence, nor is there any inference that can be drawn from the lifting of the heavy poles or that any other work-related activity of claimant *496caused his heart injury. I must respectfully disagree with this conclusion. It is always difficult in heart attack cases to draw the line between an injury to the heart that is caused by on-the-job exertion and an injury that pre-existed and merely manifested itself or became symptomatic during job exertion. "It becomes a matter of semantics whether the disability is described as a symptom of the disease or a disability to which the exertion was a contributing precipitating factor. It may well be both. The fact-finding body must in this event remain the final arbiter of the compensability of the attack, and of whether the disability arose out of the employment as well as in the course of it.” Cox v. Employers Mut. Liab. Ins. Co., 122 Ga. App. 659, 660 (178 SE2d 287) (1970). The fact-finder may rely on several different forms of evidence in such cases to establish whether there is a causal connection between the employment activities and the heart attack; medical opinion; lay- observations and opinion; and the natural inference through human experience. Carter v. Kansas City Fire &c. Ins. Co., 138 Ga. App. 601 (226 SE2d 755) (1976). See McDaniel v. Employers Mut. Liab. Ins. Co., 104 Ga. App. 340 (2) (121 SE2d 801) (1961).

It is beyond peradventure that within the realm of common knowledge of our modern society, the fact of heavy manual labor gives rise to a natural inference that the performance of such labor by one suffering from a "heart condition” may well indeed bring on a "heart attack.” The administrative law judge, the full body of the State Boardof Workmen’s Compensation and the superior court were all persuaded that there was sufficient evidence to show a compensable injury caused by heavy on-the-job exertion by claimant. That finding clearly was supported by some evidence. Were we bound by the "any evidence” test for sufficiency of evidence, I would feel compelled to vote for affirmance. However, in view of the provisions of Code § 114-102,1 believe reversal is required because the claimant did not show by a preponderance of the medical evidence that his "heart attack” was the product of his employment labors. It is my opinion that in regard to questions of injury resulting from existing disease in any form, wilful act of a third *497person of a personal nature, heart disease, heart attack, the failure or occlusion of any of the coronary blood vessels, or thrombosis, the claimant must show by a preponderance of competent evidence that the injury was attributable to the performance of the usual work of employment. More stringent rules apply to alcoholic and drug-related injuries, but are of no concern here.

Ordinarily we will look only to see if the claimant was engaged in the usual course of his employment and was injured while so employed. If there is any evidence to support the finding of the fact-finder, we are obligated to support that finding. However, in my opinion, the purpose of Code § 114-102 was to add the requirement that if the conditions enumerated therein existed, the claimant would be obligated to prove by a preponderance of creditable evidence that the injury was attributable to his employment and not to the diseased condition. Any other conclusion would result in Code § 114-102 reaffirming the "any evidence” rule and necessarily make its passage a meaningless and nugatory act. Therefore, it was not sufficient for claimant to show that the "heart attack” might have resulted from strenuous manual labor but he was required to show by a preponderance of medical evidence that the heart attack was attributable to the performance of the usual work of employment to the probable exclusion of causation by the disease alone. In this case there is no evidence at all showing the etiology of claimant’s injury. It could have been caused by disease or from work. In the absence of such a showing, claimant failed to establish his claim by a preponderance of evidence. Accordingly, I concur in the judgment of reversal.