Home Indemnity Co. v. Guye

McMurray, Judge,

dissenting.

This is a heart attack case in which the majority *498reverse the judgment of the superior court which affirmed the findings of the State Board of Workmen’s Compensation and the administrative law judge both rendering an opinion that an accidental injury occurred to claimant’s heart while performing strenuous work; thus the injury arose out of and in the course of his employment. The majority contend that the claimant only showed that he had a heart condition and that there was no evidence or inference that the strenuous work he was performing on the morning that his attack occurred caused his heart injury. I disagree.

It is my opinion that even where there is no expert opinion to the effect that the exertion contributed to the attack that "knowledge from human experience, including medical caution against exertion in such cases and the admitted opinion of experts that exertion might contribute to such an attack” is sufficient to authorize a finding that where there is strenuous exertion and the claimant testifies as to the pain and suffering and disability arising therefrom this is sufficient to satisfy the so-called any evidence rule, and the board of workmen’s compensation should not be reversed in this case. See in this connection Hartford Acc. &c. Co. v. Waters, 87 Ga. App. 117 (73 SE2d 70) (performance of exertion while on the job contributed to cerebral hemorrhage causing death). Also such cases as Travelers Ins. Co. v. Young, 77 Ga. App. 512 (48 SE2d 748) (strenuous work was in fighting a forest fire, diagnosis of "heart failure or coronary thrombosis” causing death); Hardware Mut. Cas. Co. v. Sprayberry, 195 Ga. 393 (1) (24 SE2d 315) (hernia suddenly appearing following accident sustained during work); Lumbermen’s Mut. Cas. Co. v. Griggs, 190 Ga. 277 (9 SE2d 84) (employee suffered a stroke after assisting in the unloading of 600 sacks of cement weighing 94 pounds each); Fidelity & Casualty Co. v. Adams, 70 Ga. App. 297 (28 SE2d 79) (death following heat stroke after labor in mining kaolin); Thomas v. U. S. Cas. Co., 218 Ga. 493 (128 SE2d 749) (weakness and pain shown to occur immediately after exertion, need of medical attention followed by death); J. D. Jewell, Inc. v. Peck, 116 Ga. App. 405 (157 SE2d 806) (employee suffering from hypertension but working a 70-hour week, suffered a coronary occlusion and died).

*499The evidence here as shown by the testimony of the claimant was that he had a heart attack or other sudden seizure experienced while he was physically exerting himself in the course of his employment. It has never been essential to the validity of an award that the exertion be greater than that customarily employed by the employee in the course of his employment. Lumbermen’s Mut. Cas. Co. v. Griggs, 190 Ga. 277, supra. See also Hardware Mut. Cas. Co. v. Sprayberry, 195 Ga. 393, supra; Williams v. Maryland Cas. Co., 67 Ga. App. 649 (21 SE2d 478); Lumbermen’s Mut. Cas. Co. v. Bridges, 81 Ga. App. 395, 404 (58 SE2d 849).

The claimant, an electrician, testified: The first thing after arriving for work that morning he was told to run two hot water lines and he was physically bending water pipe to accomplish this task. He and other employees were required to move "by hand” electrical poles approximately 50 to 60 feet long and weighing approximately 700 pounds each. He had severe pain in his chest just prior to moving the poles and he mentioned this to the job superintendent and another employee. Three or four times during the course of the morning he asked the job superintendent, who was leaving the job site on each occasion, to take him to the doctor but the job superintendent "didn’t do it.”

At noon he saw a doctor and then entered the hospi - tal where he remained from "1/22/76 to 2/3/76” with diagnosis of "arteriosclerotic heart disease with acute subendocardial infarction, Class IIB.” The findings of the board, which elaborated somewhat on the findings of the administrative law judge, was that the claimant was required to lift heavy poles, suffered constantly worsening chest pain throughout the morning of January 22, 1976, requested to see a doctor and when he was allowed to see a doctor was immediately sent to a hospital; his lifting of heavy poles throughout the morning was physically strenuous, and "the duties of his employment contributed to his subendocardial infarction, Class II-B.” It is my opinion that the board’s findings were based on evidence and findings that the work-related activity of the claimant caused his heart injury. Neither this court nor the trial court is authorized to substitute itself as a fact *500finding body in lieu of the State Board of Workmen’s Compensation. Employers Ins. Co. v. Amerson, 109 Ga. App. 275 (136 SE2d 12); Lockhart v. Liberty Mut. Ins. Co., 141 Ga. App. 476, 478 (1) (233 SE2d 810).

"Moreover, on appeal from an award of the State Board of Workmen’s Compensation, the evidence will be construed in a light most favorable to the party prevailing before the board.” Walker v. Continental Ins. Co., 142 Ga. App. 115, 119 (235 SE2d 389); Fulmer v. Aetna Cas. &c. Co., 85 Ga. App. 102 (68 SE2d 180).

I therefore respectfully dissent as I would affirm the lower court.

I am authorized to state that Presiding Judge Deen and Judge Banke join in this dissent.