Barksdale Lumber Co. v. McAnally, No. 77-191

• Court: Supreme Court of Arkansas
• Writing for the Court: FOGLEMAN; We agree. HARRIS
• Citation: 557 S.W.2d 868,262 Ark. 379
• Decision Date: 07 November 1977
• Docket Number: No. 77-191,No. 2
• Parties: BARKSDALE LUMBER COMPANY et al., Appellants, v. Lois McANALLY, Appellee

Page 868

557 S.W.2d 868 262 Ark. 379 BARKSDALE LUMBER COMPANY et al., Appellants,
v.
Lois McANALLY, Appellee. No. 77-191. Supreme Court of Arkansas, Division No. 2. Nov. 7, 1977.
Rehearing Denied Dec. 19, 1977.

Page 870

[262 Ark. 382] Wootton, Land & Matthews by Eugene A. Matthews, Jr., Hot Springs, for appellants.

Travis Mathis, Arkadelphia, for appellee.

FOGLEMAN, Justice.

Arthur Dale McAnally collapsed and died at his place of employment with Barksdale Lumber Company on August 6, 1973. He left appellee as his widow. The Workmen's Compensation Commission allowed her claim for death benefits under the Workmen's Compensation Act. Appellants contend that the Commission acted in excess of its powers, because the facts found by it do not support the award and because the competent evidence in the record was not sufficient to warrant its being made. Appellants concede that the sole issue is whether McAnally's employment caused the heart attack he suffered and his resulting death. Essentially, the question is whether there is any substantial evidence to support the finding of the Workmen's Compensation Commission (affirmed by the circuit court), that McAnally's death resulted from an accidental injury arising out of and in the course of his employment. We find that there is, and affirm.

On the day of his death, McAnally had been performing his usual duties, which

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consisted of laying wood strips across lumber as it was stacked by an automatic stacking machine [262 Ark. 383] controlled by a co-worker, who was also laying strips. The strips were 7 feet long, 11/2 inches wide and about 3/4 inches thick and were accumulated on a rack behind a platform on which McAnally worked. The five strips laid by McAnally between each layer of lumber weighed about 12 pounds 11 ounces in all. McAnally performed his regular duties on the morning of his death prior to the 11:30 to 12:30 lunch hour. After the lunch hour, and during a stoppage of the work about 1:00 p. m., he had walked to a point where some of the strips had become disarranged as they were being transported to his work station. After straightening the strips, he returned to the platform on which he worked and was talking with his co-worker, Pearlie Mae Harris, when he collapsed and died.

McAnally had been under treatment by Dr. Driver Rowland, a cardiologist of Hot Springs, between February 1, 1972 and June 1, 1973, for pains in his chest with radiation into his arms, diagnosed as angina pectoris, first precipitated by exertion at his work. Later, these attacks occurred both with and without exertion and were related, on occasion, to emotional upset. It was determined that McAnally, who was 61 years of age when he died, had arteriosclerotic heart disease involving the coronary arteries. Medical testimony as to the cause of death was given by two physicians. They were Dr. Driver Rowland and Dr. Eli Gary, a general practitioner at Arkadelphia, who had never treated McAnally and had not been acquainted with him. Dr. Rowland testified that McAnally's work did not precipitate the heart attack or aggravate his condition or cause his death. Dr. Gary expressed the opinion that McAnally's work did cause or contribute to his death. The death certificate, made by Dr. W. R. Keddle of Greenwood showed the cause of death as myocardial infarction.

McAnally's widow testified that he had been experiencing pain during the week previous to his death, that he had eaten little on the morning of his death and the evening before, and that he had complained of pain in his chest when he left home, going to work. She said that, after his first episode of pain, McAnally was able to do less and less as time progressed, and had ceased mowing his lawn and doing other [262 Ark. 384] chores around the house. Pearlie Mae Harris testified that, while McAnally never complained about any difficulty in doing his work, she could tell that at times he was "kindly tired." Tommy Barksdale testified that, while for someone unaccustomed to it, the work was "pretty fast," the more one did it, the more routine it became. He said the work was actually not heavy or strenuous but more strenuous than sitting.

Appellants recognize the governing rules stated in Bettendorf & Company v. Kelly, 229 Ark. 672, 317 S.W.2d 708, and many other cases, that an accidental injury arises out of employment when the required exertion which produces the injury, as the sole or a contributing cause, is too great for the person undertaking the work, whatever the degree of exertion or the claimant's condition of health and that an injury is accidental when either the cause or result is unexpected or accidental, although the work being done is usual or ordinary. Appellants, however, argue that the lay testimony does not constitute substantial evidence that McAnally's heart attack was an accident that occurred by reason of and in the course of his employment and that the medical testimony is the only evidence to be considered in determining the question. Assuming, without deciding, that appellants are correct in their evaluation of the lay testimony, we cannot say that there was no substantial evidence to support the commission's finding on this question.

Appellants contend that we should reverse the award in thiscase because Dr. Rowland, on whose opinion they rely, was an eminent cardiologist and McAnally's treating physician, while Dr. Gary was a general practitioner, who, having never

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seen the patient, stated an opinion based upon an assumption that the history of McAnally's arteriosclerotic heart disease and its symptoms and manifestations had been correctly given, and who recognized Dr. Rowland's expertise and would give great weight to the treating physician's opinion over his own.

Appellants are apparently laboring under some misconceptions that we must lay aside in approaching the basic problems. Their argument is directed almost entirely toward [262 Ark. 385] the proposition that the claimant failed to meet her burden of proof that the heart attack was an accident, occurring by reason of, or in the course of, McAnally's employment by a preponderance of the evidence. This question is of no moment to us, because that determination is for the commission and we affirm if there is any substantial evidence to support the commission's ultimate finding that the heart attack was, in fact, an accidental injury arising out of, and in the course of his employment. Reynolds Metals Co. v. Cash, 239 Ark. 489, 390 S.W.2d 100; Turner v. Lambert Construction Co., 258 Ark. 333, 524 S.W.2d 465; Arkansas Foundry Co. v. Cody, 251 Ark. 57, 470 S.W.2d 812; Reynolds Metals...