I dissent.
In my opinion the deposition testimony in the record does not establish as a matter of law that Leathers’ dizzy spells and fainting spells were not caused by his 1954 injury. Neither does it establish as a matter of law that he has not suffered disability as a result of his injury. The only question remaining is whether the deposition testimony establishes as a matter of law that Leathers did not have good cause for his delay in filing his claim for compensation. The Court holds that it does. I disagree.
The Court’s holding that lack of good cause is established as a matter of law is grounded on a finding that Leathers’ conduct during the long interval between the date his dizzy spells began in 1955 and the date on which his claim was filed in 1962 did not meet the standard of conduct of a reasonably prudent man. This finding is predicated on the failure of Leathers during the period to ask a doctor if his dizzy spells were caused by his injury. I can find no testimony in the depositions that he did not ask. But conceding that the only reasonable inference from the testimony is that he did not do so, I am yet unable to agree that he was imprudent as a matter of law in failing to take steps to rid himself of his mistaken belief that his dizzy spells were caused by a heart condition.
Leathers testified that when he had the fainting spell in 1955 his doctor told him he had a light heart condition. That testimony must be accepted as true. Should we hold that the workman, continuing to have the same symptoms and ailments for six and a half years, was imprudent as a matter of law because he failed during that period to seek a second diagnosis? Some men, more cautious than others in protecting their health, surely would have sought a second diagnosis. Others, less cautious, would have accepted their family doctor’s diagnosis as the final word. Are we to say as a matter of law that none of those in the latter group are people of ordinary prudence? I would not. I would let a jury decide the issue. Accordingly, I would affirm the judgment of the Court of Civil Appeals.