Carter v. Kansas City Fire & Marine Insurance

Evans, Judge,

dissenting.

Claimant was a carpenter. While at work on September 9,1974, he was trying to pull a column into a position where it would be plumb. In seeking the alignment of the column he had to pull unusually hard, and he began to have pains in his arms, shortness of breath, and severe pain in his chest. His pain was sufficient to require him to stop work. He experienced the same symptoms the next day after working only 7 hours, and after 3 hours he experienced pain on September 11, with a history of similar experiences until September 16, 1974, his last day on the job.

He filed a claim for workmen’s compensation. He testified he had no knowledge of any heart condition or any physical infirmity until the occasion above-mentioned on September 9. However, there was medical testimony that he had a history of blood pressure, which was not disabling. An electrocardiogram taken on September 16,1974, revealed he had substantial damage to his heart.

The deputy director rendered his findings of fact and found that "his exertion on September 9, 1974, aggravated his pre-existing condition and was a contributing cause of the resulting disability and incapacity for labor”; that claimant did sustain an injury by accident arising out of and in the course of his employment and he made an award to the effect that he was totally incapacitated for work as a result thereof.

The employer-insurer appealed to the full board, and upon a de novo consideration of the evidence, that board found generally as the deputy director had, but then added that "the claimant may very well have sustained *606the severe pain he described on September 9, 1974, without in any way aggravating his pre-existing condition . . ., and . . . merely experienced the symptoms of a pre-existing coronary disease which had then progressed to the point where exertion would produce disabling pain, but this pre-existing condition was in no way aggravated by the exertion.” The full board then denied compensation.

Whereupon the claimant appealed to the superior court, but died before a hearing was held. On substitution of his executrix, the court affirmed the award of the full board. The executrix appeals.

1. In order to show that an injury is precipitated while on the job by exertion of the employee, and while in the course of his employment, it is only required that it be shown that the work engaged in was sufficiently strenuous or of such nature, combined with other factors in the case as to raise the natural inferences through human experience that the exertion resulted in the precipitation. Hoffman v. Nat. Surety Corp., 91 Ga. App. 414 (85 SE2d 784); J. D. Jewell, Inc. v. Peck, 116 Ga. App. 405 (157 SE2d 806); Cabin Crafts, Inc. v. Pelfrey, 119 Ga. App. 809 (168 SE2d 660); Brown Transport Corp. v. Jenkins, 129 Ga. App. 457, 459 (2) (199 SE2d 910).

2. An award of the board of workmen’s compensation must be supported by findings of fact based on evidence, and if the findings of fact are erroneous, the case should be re-committed to the board for further consideration. Knight v. Fulton Industries, 123 Ga. App. 538, 540 (181 SE2d 691), and cits.

3. The sole difference between the findings of the deputy director and that of the full board is that of aggravation of a pre-existing condition, as opposed to a finding by the board that his activity in no way aggravated his pre-existing condition. All other findings of fact of both are the same. But there is no evidence upon which the board can support its conclusion that there was no aggravation of the pre-existing condition. The lay testimony shows clearly that this claimant had no knowledge of a pre-existing condition until he suffered injury in exerting himself on the job. Neither of the two experts who testified ever stated that there was no *607aggravation of the pre-existing condition. On the contrary, Dr. Snelling, although being of the opinion that he had this trouble before he pulled on the column, testified to the question as to whether it could have been aggravated or precipitated, and his answer was "very definitely.”

4. But the full board misconstrued Dr. Snelling’s testimony and found that "based on this doctor’s testimony . . . the exertion was not itself an aggravation of that condition.” See majority opinion, p. 602. In citing this testimony as its reason for finding the injury did not arise out of and in the course of his employment by reason of aggravation, the board is in error. I therefore would reverse and remand for further consideration by the board. I therefore dissent. See in this connection the recent case of Williams v. Morrison Assur. Co., 138 Ga. App. 191 (1), and cits., such as Fidelity &c. Co. of N. Y. v. Hodges, 108 Ga. App. 474 (1) (133 SE2d 406); Barbree v. Shelby Mut. Ins. Co., 105 Ga. App. 186 (123 SE2d 905); Miller v. Travelers Ins. Co., 111 Ga. App. 245, 248 (141 SE2d 223).

I am authorized to state that Presiding Judge Pannell and Judge Webb concur in this dissent.