Walsh v. U. S. Rubber Co.

Oxner, Justice

(dissenting).

I think the majority opinion has extended the doctrine of unusual strain or exertion as a basis for compensation in heart cases to an extent not warranted by any previous decision of this Court, and has set a precedent which may seriously handicap those having heart ailments in obtaining employment and which may tend to discourage employers from continuing in their service those so afflicted.

As pointed out in Kearse v. South Carolina Wildlife Resources Department, 236 S. C. 540, 115 S. E. (2d) 183, 186, “if a heart attack results as a consequence of the ordinary exertion that is required in the performance of the duties of the employment in the ordinary and usual manner, and without any outward untoward event, it is not compen-sable as an accident.” And, further, “the fact that due to a weakened heart condition the exertion required for the ordinary performance of the work is too great for the particular employee who undertakes to perform it, does not make it a compensable accident.”

I fail to find in this record any evidence showing that claimant’s heart attack was induced by any unexpected strain or over-exertion in the performance of the duties of his employment or by any unusual or extraordinary conditions in the employment. Evidently Commissioner Reid reached the same conclusion, for he, dissented from the finding of the majority of the Commission.

The situation is simply this: Claimant’s duties consisted mainly of filling orders for samples of various fabrics and involved sewing and cutting the samples, lifting and carrying rolls of fabrics from their storage place to his work area, as well as displaying samples. He went to work at 7:00 *427o’clock, the usual time. For about an hour he performed his normal duties, during which time he handled five or six rolls of cloth. The work day which he had planned was then interrupted by a visit of some officials of the mill who requested him to exhibit various fabrics. Claimant then carried rolls of fabric back and forth so that the officials might examine them. This was not unusual as it was done several times a week. They remained in the room about two hours. The work required of claimant during this period entailed no unusual exertion. While he says that he then had to carry the rolls of fabric a longer distance than he did during his regular work, he made no contention that this made his duties more strenuous. In fact, he frankly states that the rolls lifted during that time were “mostly lighter and smaller” than those ordinarily handled. Around 10:00 o’clock these officials left, at which time claimant says he went back to “this heavy work that I had been doing.” During the next hour he lifted about eight or ten rolls of cloth and performed other duties pertaining to his employment. About 11:00 o’clock he said he became “weak” and “felt terrible.” He continued on the job, however, until quitting time at 3 :00 o’clock that afternoon.

The testimony quoted in the majority opinion clearly discloses that the only unusual conditions pointed out by claimant as occurring on the day in question was that his planned day was interrupted and “broken up”, which worried him. He said as a result he tried to “double up” in order to complete the work he had planned for that day but there is no contention that any superior officer required him to hurry or double up. In fact, any rush could not have lasted over an hour because he claims his heart attack occurred about 11:00 o’clock.

A somewhat similar claim of overexertion and strain was made in Radcliffe v. Southern Aviation School, 209 S. C. 411, 40 S. E. (2d) 626. There the employee, who worked as a guard, claimed that a stroke of paralysis suffered during his employment was induced by the fact that his work *428wás “doubled up” and he became excited. The Court held that although due to a shortage of help the guards were required to do extra work, there was no evidence of unusual strain or exertion.

The facts are quite different from those in the recent cases of Kearse v. South Carolina Wildlife Resources Department, 236 S. C. 540, 115 S. E. (2d) 183, and Wynn v. Peoples Natural Gas Co. of South Carolina, S. C., 118 S. E. (2d) 812. In the Kearse case it was held that a cerebral thrombosis suffered by an employee constituted a compensable accident. The evidence showed that for several days prior to the attack, claimant worked sixteen to eighteen hours a day as a game warden, far in excess of his usual hours of work, and during that period underwent extreme physical exertion in dragging boats and pushing an automobile over rough terrain. In the Wynn case it was held that a heart attack suffered by a general manager and supervisor of the operations of a gas company constituted a compensable accident. The evidence showed that while his ordinary work day was about eight and a half hours, prior to the attack he was required during a period of conversion from propane to natural gas to work sixteen hours per day in order to perform the extra duty of supervising the conversion work. We have no such evidence of unusual strain or exertion here.

Nor do I find any evidence that the alleged unusual strain induced a heart attack. The Industrial Commission found as a fact that claimant had a “preexisting heart disease.” This much is apparently conceded by respondent’s counsel in his brief. His position seems to be that claimant’s preexisting heart condition was aggravated by the work which he did on December 29, 1958. The only medical evidence offered by him to show a causal connection was the testimony of Dr. D. J. Turrell, an internist at the Fort Jackson Hospital in Columbia, to whom claimant was sent by his family physician on December 30th. The following is taken from the testimony of Dr. Turrell on direct examination:

*429“Q. Based upon the history that has been given to you, do you have any opinion as to whether or not this man’s work on the particular day in the manner that he described to you contributed to or aggravated his condition? A. I’d like to give a fairly long answer if I may.
“Q. Yes, sir. A. His story that he gave me originally was that, and I’m not clear as to the exact day — -either Thursday or Friday or Saturday — probably Friday, he went on a hunting trip and for the first time, while exerting himself, experienced severe chest pain and some shortness of breath. This pain then recurred in subsequent days up until the event we are discussing on several occasions again with exertion. This was quite severe and caused him to rest. In fact, on Sunday I believe, he spent a lot of time at home resting. He did not realize what this pain meant and went to work on Monday and then subsequently had more pain, and then awakened — went home that afternoon after work, went back to bed and rested again, and then awoke, I gather, about midnight or one a. m. with severe pain in his chest. His friend. Dr. Buchanan, I believe, was called and saw him at some time thereafter and sent him to the hospital as a suspected heart attack, at which point I first saw him.
“Under those circumstances, there is now becoming recognized among medical authorities a clinical entity or syndrome known as an impending heart attack that is, somebody who’s threatening to have one; and this is characterized by either a person who has had heart disease suddenly developing more chest pain with the usual amount of work being done, or in a person who is not previously known to have heart disease developing severe chest pain quite re-petively on what he normally would do — his normal activity. When a person like this is seen the doctor tends to suspect that perhaps a heart attack is impending, that is, may occur. Now, some people, of course, who develop heart pain, or angina pectoris, develop it slowly over a period of time, it doesn’t come on suddenly; usually it’s first seen with very great effort. However, in these cases I am discussing the *430pain comes on with a lot of severity and quite frequently all at once. Under these circumstances the doctor doesn’t know what is going to happen next.
“Now, it has been my practice, and it’s been the practice of some authors I can quote if you wish, to take people like this and hospitalize them when they come into the office asking what the matter is, and study them; and if you get the impression that this is an impending heart attack situation, to actually treat them as though they are having a heart attack. I believe that the person in question (claimant) probably fits this category, and if he had walked into my office Monday morning instead of going to work I would have hospitalized him at that time and would not have let him go to work.
“Q. Well, with that history that you quoted, do you think that his going to work and doing this particular work as described, lifting, had any effects upon his having this particular attack — this pain and all that particular day? A. Well, as I said, I think that most probably it tended to aggravate what was going on; if I could have been on the scene and told him what was happening to himself, I would have stopped him.
“Q. Yes, sir; but you say it most probably aggravated what was already going on prior to going to work that day, based on his history? A. Uh-huh, I would think so.”

Dr. Turrell was claimant’s witness and he is bound by his testimony. It is quite obvious from what he said that it was extremely hazardous for claimant to go to work on the morning in question or to engage in any other physical activity. It is wholly conjectural whether his alleged heart attack of December 29th was precipitated by the worry and “doubling up” which he claims resulted from the visit of the mill officials.

The situation here is quite similar in many respects to that which prevailed in Price v. B. F. Shaw Co., 224 S. C. 89, 77 S. E. (2d) 491, 496. There the employee suffered *431from heart disease and, in fact, displayed symptoms of heart trouble on the morning before he went to work. However, he went on the job and about an hour later suffered a fatal heart attack. It was the opinion of several physicians that the work in which he was engaged on the morning of his death accelerated and contributed to his death. In denying compensation, the Court said: “The medical testimony is definitely to the effect that the deceased should have remained in bed on that morning and any physical exertion at all was hazardous and might have precipitated the attack. While the medical testimony warrants the inference that if the deceased had stayed in bed, he might have lived longer, yet he chose not to stay in bed, and it is therefore wholly conjectural whether the heart attack which resulted in his death was precipitated or accelerated by the work, or the exertion incident to getting out of bed, dressing and going to work.”

In further support of the views herein expressed, see Sims v. South Carolina State Commission of Forestry, 235 S. C. 1, 109 S. E. (2d) 701; West v. City of Spartanburg, 236 S. C. 553, 115 S. E. (2d) 295.

As I do not think the claimant suffered an injury by accident within the meaning of Section 72-14 of the 1952 Code, I would reverse the judgment of the Court below.