D. W. Mallory & Co., Inc. v. Phillips

• Decision Date: 02 March 1979
• Docket Number: No. 780863,780863
• Citation: 219 Va. 845,252 S.E.2d 319
• Court: Virginia Supreme Court
• Parties: D. W. MALLORY & COMPANY, INC., et al. v. Martha E. PHILLIPS et al. Record

Page 319

252 S.E.2d 319

219 Va. 845

D. W. MALLORY & COMPANY, INC., et al. v. Martha E. PHILLIPS et al.

Record No. 780863.

Supreme Court of Virginia.

March 2, 1979.

Frank B. Miller, Richmond (Mary Louise Kramer, Sands, Anderson, Marks & Miller, Richmond, on brief), for appellants.

C. Allen Riggins, Richmond, for appellees.

No brief or argument for Lillian Spencer, appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

CARRICO, Justice.

This case involves an application for compensation benefits filed with the Industrial Commission by the widow of an employee, John Phillips, who suffered a fatal heart attack while at work. After a hearing, a deputy commissioner denied the application. Upon review, the Commission reversed the deputy commissioner and awarded compensation benefits to the widow. On the employer's appeal to this court, the question for decision is whether the Commission erred in finding that "the work in which (Phillips) was engaged was the precipitating factor in causing his heart attack."

Employed as a "truck driver and helper around the yard," Phillips had worked for D. W. Mallory & Company, Inc., a coal merchant, for more than 30 years. The "biggest part" of Phillips' job, especially in the winter months, was driving a truck delivering coal to residential and commercial customers. When not engaged in delivering coal, Phillips was assigned, among other duties, the task of unloading railroad coal cars.

The cars, one or two of which arrived at Mallory's yard every week to ten days, were placed on a trestle over a storage area. Each car contained 50 to 60 tons of coal and was equipped with doors which, when opened, permitted the coal to slide out to the ground below. Large lumps that "hung up," however, had to be broken up by hand. Normally, it took an employee, working alone, two and one-half to three hours to unload a car. In cold weather, the coal had a tendency to "stick together," and it took more time to unload a car; the coal had to be separated with a shovel or bar or by vibrating the car by striking it with a five-pound sledge hammer. The unloading process involved a "pushing" effort, with no lifting involved. To Phillips' supervisor, the unloading job "didn't look like . . . hard work."

On December 27, 1976, a cold day, Phillips began about 1:00 p. m. to unload a car. During the course of the afternoon, his supervisor checked on him four times. The first three times, the supervisor heard Phillips shoveling or using his sledge hammer. On the last occasion, about 4:00 p. m., the supervisor found Phillips' body lying on a pile of coal beneath the trestle, with a sledge hammer nearby.

An autopsy performed on Phillips' body determined that his death resulted from "myocardial insufficiency due to arteriosclerotic coronary artery disease." Dr. Marcella F. Fierro, a medical examiner who was present during the autopsy, was the only medical witness to testify below. According to the doctor, Phillips, who was 64 years old at the time of his death, suffered from hardening of the arteries, an affliction not uncommon for men his age. In Phillips' case, however, all three coronary arteries showed severe hardening, with reduction of vessel movement to less than 10%. Phillips suffered also from hypertension, manifested by an enlarged heart. Phillips' heart showed "acute muscle fiber death," indicating that, over a period of time, he had suffered "at least continual and probably also sporadic death of heart muscle with replacement by scarring . . . a continual, on-going process of myocardial death." In short, Phillips' heart "had insufficient blood and subsequently (he) had a heart attack when he died."

In making its finding that "the work in which (Phillips) was engaged was the precipitating factor in causing his heart attack," the Commission stated in its written opinion:

"The Commission, as well as the Supreme Court, has held in numerous cases that where evidence establishes an unusual exertion on the part of the claimant, followed by a disabling or fatal heart attack . . . a causal connection is generally established."

If we understand this statement correctly, the Commission was of opinion that prior decisions of this court and of the Commission have created some sort of presumptive rule in favor of the compensability of a heart attack following unusual occupational exertion. If this was the Commission's view, it was erroneous.

In support of its statement, the Commission cited in its opinion one case decided by this court ¹ and four decided by the Commission. ² None, however, stands for the proposition asserted by the Commission. In each case, the causal connection between work activity and heart attack was established, not by the aid of a presumptive rule, but by competent medical evidence.

Interestingly, three of the four of its own cases the Commission cited in its opinion involved heart attacks in firemen. Since the cases were decided, the General Assembly has seen fit to provide fire fighters, as well as law enforcement officers, a rebuttable presumption that a causal connection exists between work activity and heart disease. Code § 65.1-47.1.

Otherwise, where, as here, compensation benefits are sought for a heart attack suffered by an employee while at work, the burden is upon the claimant to prove that the attack falls within the statutory definition of a compensable injury as "injury by accident . . . arising out of . . . the employment." Code § 65.1-7. The "by accident" portion of the requirement may be satisfied by showing that the attack, while perhaps not accidental as to cause, was accidental as to result. Lilly v. Shenandoah's Pride Dairy, 218 Va. 481, 485, 237 S.E.2d 786, 788 (1977). The "arising out of" portion of the requirement is essentially a problem of causation. In solution of this problem, the claimant must prove that the work activity caused or contributed to cause the heart attack. Johnson v. Capitol Hotel, 189 Va. 585, 590-91, 54 S.E.2d 106, 109 (1949).

Where, as here, the employee...