Fireman's Fund American Ins. Co. v. Hester

• Decision Date: 16 January 1967
• Docket Number: No. 42297,No. 1,42297,1
• Citation: 115 Ga.App. 39,153 S.E.2d 622
• Parties: FIREMAN'S FUND AMERICAN INSURANCE COMPANY et al. v. J. C. HESTER
• Court: Georgia Court of Appeals

Page 622

153 S.E.2d 622

115 Ga.App. 39

FIREMAN'S FUND AMERICAN INSURANCE COMPANY et al. v. J. C. HESTER.

No. 42297.

Court of Appeals of Georgia, Division No. 1.

Jan. 16, 1967.

J. C. Hester filed a claim for compensation against Modern Homes Construction Company and Fireman's Fund American Insurance Company, the insurer, for disability allegedly occasioned by a heart attack claimed to have been suffered by him as an accidental injury arising out of and in the course of his employment.

At the hearing there was testimony of a physician on behalf of the claimant who gave his opinion that the claimant had suffered a heart attack when he had a 'seizure' while working on a house being built for Modern Homes Construction Company, that this work was being done, under an agreement whereby claimant was to build houses for a fixed sum per square foot with claimant paying his own labor, that payments to claimant by Modern Homes Construction Company had deducted therefrom workmen's compensation insurance, that a co-worker of the claimant described the 'seizure' had by the claimant at the time. There was other evidence in the case as shown by some of the findings of fact.

The issues were (a) whether the claimant was an employer or independent contractor and (b) if an employee, whether he suffered a heart attack, and if so (c) whether the attack was caused by, or accelerated by, exertion while at his work, or was caused solely by a pre-existing physical condition. The amount of weekly payment to the claimant was stipulated but the defendants specifically deny 'employment of claimant by them and that claimant was injured on the job for defendants.' The director made the following findings of fact and award:

'Findings of Fact: I find from the testimony of J. C. Hester, claimant herein, that he was working for Modern Homes Construction Company, defendant herein, on April 8, 1963, constructing houses from plans and specifications supplied to him by defendant; that defendant furnished the necessary building materials, and claimant furnished the necessary labor; that his immediate supervisor was Jack Seago; that witness was moving bundles of roofing on the roof of the house, weight about eighty pounds each, and 'I had a seizure' causing pain in the arms and a 'crushing pain in the left chest'; that following the 'seizure' the pain subsided and witness returned to his work and helped finish the roofing job; that on April 18, 1963, witness saw a doctor who hospitalized him after having the same type seizure, 'laid ahold of me again' while working at a house for Modern Homes removing a set of steps therefrom for the purpose of making repairs to the porch; that witness returned to his job within about three days from hospitalization and light duty, or no work at all, and as a supervisor for about six weeks to the month of December, 1963, when witness took a job as building supervisor at $100.00 per week; that witness did not exert himself at the time of the seizure to a greater degree than he normally had in the past; that on this particular job 'I lost lots of time. I was paid by the job, and the longer I stayed, the more expenses I incurred and the less profits I made'; that witness was paid $320.00 for building an eight hundred foot house, and he paid his helpers from the proceeds.

'I find from the testimony of Dr. Morris Davis of Tifton, Georgia, taken by deposition by the respective parties at his office March 21, 1964, and now admitted to this record, that he has professionally treated the claimant herein on several occasions prior to April 18, 1963, when he visited witness' office complaining of pain in his chest radiating down his right arm; that subsequently on April 22, 1963, the claimant was admitted to hospital by witness where he remained about three days, and no abnormalities were found, including the routine examination witness conducted on claimant March 2, 1964; that witness limited claimant to light work because 'I think he had some heart damage while he was doing this particular work.' 'Q. And you are basing that opinion on what he told you rather than objective findings?' 'A. Right. That's all I have to go by.'

'I find from the testimony of Howard Davis, taken by the parties hereto in deposition form at Valdosta, Georgia, April 18, 1964, and now admitted to this record that he knows J. C. Hester, claimant herein; that on April 8, 1964, witness was driving a truck for his employer making a delivery of building materials on the job site where claimant was at work; that while assisting claimant in loading bundles of roofing onto a housetop, claimant came down from the roof complaining of being sick, and after the roofing was unloaded, witness 'went on into Gainesville' and 'that's all I know about it.'

'I further find that no evidence appears from the record in this matter that the mandatory provisions of the Georgia Code Section 114-303 was complied with in this matter, and nothing appears herein to authorize a finding that an exception or excuse for not notifying defendant shoudl be entertained. Therefore, it is presumed that defendants waived the required notice to employer under the Act, which otherwise would have authorized a dismissal on proper motion.

'I further find that no evidence appears in this matter that claimant suffered a compensable accident and injury arising out of, in the course of, or because of his employment, as contemplated by the Workmen's Compensation Act of Georgia, nor was it a contributing proximate cause. 'Personal injury shall mean only injury by accident arising out of and in the course of the employment and shall not * * * include a disease in any form except where it results naturally and unavoidably from the accident, nor shall injury and personal injury include * * * heart disease, heart attack, the failure or occlusion...