Buschel v. Kysor/Warren
| Citation | 213 Ga.App. 91,444 S.E.2d 105 |
| Decision Date | 15 April 1994 |
| Docket Number | Nos. A94A0401,A94A0402,s. A94A0401 |
| Parties | BUSCHEL et al. v. KYSOR/WARREN et al. KYSOR/WARREN et al. v. BUSCHEL et al. |
| Court | United States Court of Appeals (Georgia) |
Douglas L. Breault, Columbus, for appellants.
Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Carol E. DeLoach, Atlanta, for appellees.
Pursuant to the grant of a discretionary appeal under OCGA § 5-6-35(a)(1), Brandon and Brandi Bartrug, the minor children of deceased employee Sara C. Buschel, by their next friend Lori Foster (collectively "Buschel"), appeal the judgment of the superior court reversing the award of the State Board of Workers' Compensation. They contend the superior court's judgment is a nullity because the award of the full board was affirmed by operation of law when the judgment was not entered within 20 days of the hearing as required by OCGA § 34-9-105(b). They also contend the superior court erred by reversing the award as it should have been affirmed under the any evidence rule. The employer, Kysor/Warren and its insurance carrier, Wausau Insurance Company, have filed a cross-appeal contending the board's award was erroneous because it was based upon inconsistent theories of recovery and the findings were not supported by the evidence.
While an employee of Kysor/Warren, Sara Buschel cleaned insides of refrigeration cases with toluene, a toxic chemical closely monitored by the Occupational Safety & Health Administration. According to evidence presented, excessive inhalation of toluene vapors can cause nasal and respiratory irritation, central nervous system effects, including dizziness, weakness, fatigue, nausea, headache, possible unconsciousness, and death. Because the employer did not measure the amount of toluene in the refrigeration cases, the amount of toluene Buschel inhaled or her exposure on a daily basis is not known. Lethal levels of toluene, however, were not found in her body after her death.
Although a pre-employment physical found her in good health, after beginning work with Kysor/Warren, Buschel started experiencing headaches and severe nosebleeds. She frequently took headache medications on and off the job and requested and received from her employer a face mask to wear at work, and she told others that the chemicals at work made her "high," burned her nose, and made her head pound. Buschel submitted claims reporting these symptoms to her employer on three occasions, and these experiences were confirmed by other employees. Further, one week before her death, she complained of loss of bowel control.
On November 10, 1990, Buschel and a co-worker worked on refrigeration cases very near the company's break room. Although it does not appear that she worked with toluene, shortly before the 9:00 a.m. regularly scheduled break, she complained of headaches and took headache medicine. At 9:00 a.m. she walked to the break room and bought a soft drink, but even before she could sit down, she collapsed, gasping for air. Although an ambulance responded and Buschel was given CPR, she was pronounced dead in the emergency room after she was rushed to a local hospital.
When the employer contested a claim for workers' compensation death benefits, the claim was referred to an administrative law judge. Thereafter, a hearing was held.
Although four different pathologists gave opinions on the cause of Buschel's death, they could not agree on its cause. One pathologist, retained by the employer, stated that in his opinion the death resulted from viral myocarditis. This pathologist, however, acknowledged that people do not usually die from myocarditis, and he also testified that toluene can kill. Two of the pathologists, one who conducted the autopsy and who is the deputy medical examiner for Fulton County and under contract with the Georgia Bureau of Investigation and the other retained by Buschel, rejected myocarditis as the cause of death, but they could not state a definite cause of death. The fourth pathologist, also retained by the employer, also stated that perhaps another kind of myocarditis was the cause of death, but deemed more information necessary before a definite conclusion could be reached. This pathologist also acknowledged that it was unusual for death to result from myocarditis. From the pathologists' testimony it was apparent that the symptoms Buschel exhibited differed from the symptoms displayed by people suffering from myocarditis, and she did not display classic symptoms of myocarditis. Further, the autopsy showed that her heart was not consistent with that of one who died from myocarditis.
Based on this evidence, the ALJ found that Buschel's death was unexplained and applied the presumption that arises from an unexplained death so that Buschel's death was presumed to have arisen out of and in the course of her employment. Thus, given the uncertainty on the cause of Buschel's death and the employer's inability to rebut the presumption, the ALJ found that Buschel's death arose out of her employment.
The ALJ rejected the employer's "on break" defense because Buschel collapsed immediately upon entering the break room and Buschel did not suffer any injury or accident while on break. Instead, the ALJ concluded that Buschel's death resulted from long-term exposure from toluene in her work place, and that the injury occurred in the work place and not in the break room. The ALJ found that Buschel's death arose out of and in the course of her employment and as a direct result of her performance of the job duties with the employer. Consequently, the ALJ awarded funeral expenses and payment of weekly death benefits to Buschel's two minor children.
After the employer's appeal to the full board was unsuccessful, the employer next appealed to the superior court. The record shows the appeal was heard by the superior court on July 16, 1993, and the court signed the order reversing the award on August 5, 1993, but the order was not entered until August 6, 1993, 21 days after the hearing.
Appellants were granted authority to file this appeal. The employer filed a timely cross-appeal. Held:
1. Under OCGA § 34-9-105(b) the order disposing of a workers' compensation appeal must be "entered" within 20 days of the hearing on the appeal or the award of the board will be affirmed by operation of law. Although this court in Travelers Ins. Co. v. McNabb, 201 Ga.App. 297, 298-299, 410 S.E.2d 788 and our Supreme Court in Felton Pearson Co. v. Nelson, 260 Ga. 513, 515, 397 S.E.2d 431 did not require exact compliance with other time limits set forth in OCGA § 34-9-105(b), the Felton Pearson decision is premised in part upon the 20-day time limit in the Code section to assure speedy resolution of appeals. Here, as the superior court did not satisfy that ultimate time limit, the State board's award was affirmed by operation of law when the order was not entered as required by OCGA § 34-9-105(b), and the judgment of the superior court is a nullity. Miller v. Merck & Co., 199 Ga.App. 722, 723, 405 S.E.2d 761; Coronet Carpets v. Reynolds, 199 Ga.App....
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...the appellate division was affirmed by operation of law and the superior court order was a nullity. Buschel v. Kysor/Warren, 213 Ga.App. 91, 93, 444 S.E.2d 105 (1994). Thus, the preparation for the hearing, the hearing itself, the court's consideration of the case taken under advisement, an......
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...439 S.E.2d 482. Under OCGA § 5-6-38(a), a cross-appeal can be brought only where a valid appeal exists. See Buschel v. Kysor/Warren, 213 Ga.App. 91, 93(3), 444 S.E.2d 105 (1994). Absent a cross-appeal status for the lack of jurisdiction in the trial court as to the underlying appeal, defend......
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...as a precipitating cause of death). 17.Zamora, 162 Ga.App. at 85, 290 S.E.2d 192 (punctuation omitted). 18.Buschel v. Kysor/Warren, 213 Ga.App. 91, 94(4), 444 S.E.2d 105 (1994); see also Southwire Co. v. Cato, 250 Ga. 895, 898 n. 2, 302 S.E.2d 91 (1983); Sturgis, 136 Ga.App. at 263, 221 S.E......
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