Home Indem. Co. v. Guye, No. 53872

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: BELL; BIRDSONG; BIRDSONG; QUILLIAN; McMURRAY
• Citation: 143 Ga.App. 494,238 S.E.2d 549
• Docket Number: Nos. 1,3,No. 53872,2
• Decision Date: 07 September 1977
• Parties: HOME INDEMNITY COMPANY et al. v. R. R. GUYE

Page 549

238 S.E.2d 549 143 Ga.App. 494 HOME INDEMNITY COMPANY et al.
v.
R. R. GUYE. No. 53872. Court of Appeals of Georgia, Division Nos. 1, 2, 3. Sept. 7, 1977.
Rehearing Denied Oct. 13, 1977.

[143 Ga.App. 495] Swift, Currie, McGhee & Hiers, James B. Hiers, Jr., Atlanta, for appellants.

Rudolph J. Chambless, Waycross, Jack J. Helms, Homerville, for appellee.

[143 Ga.App. 494] BELL, Chief Judge.

This is an appeal in a Workmen's Compensation case. The evidence was limited to claimant's testimony and to two medical reports. Claimant testified that for several years he had experienced chest pains following excessive smoking or exertion; that on January 22, 1976, shortly after reporting for work, be began to have chest pains and nausea. About an hour later he assisted two other men in moving some heavy light poles and the pain in his chest increased. At noon he went to see a doctor. He was hospitalized. On discharge from the hospital on February 3, 1976, the author physician of claimant's medical report made a final diagnosis of "arteriosclerotic heart disease with acute subendocardial infarction, Class IIB." Claimant thereafter went to the Riverside Clinic in Jacksonville, Florida for another examination. The medical report from this clinic contains the following: "Impression 1. Recent chest pain and diagnosis of 'heart attack', etiology uncertain." There is nothing in either medical report which shows a causal connection between the claimant's heart condition and his job and the record is otherwise silent on this question.

The administrative law judge found an accidental injury to claimant's heart arising out of and in the course of his employment and claimant was awarded compensation. On appeal, the full board adopted those findings "except as inconsistent" with its own; and found, inter alia: "m. Based on the fact that claimant was required to life heavy poles, that he suffered constantly worsening chest pain throughout the morning of January 22, 1976, that he requested to see a doctor, that he finally had to see a

Page 550

doctor and was immediately sent to a hospital, and that his lifting of heavy poles throughout the morning was physically strenuous, the board finds that the duties of his employment contributed to his subendocardial infarction, Class 2-B." A substituted award in claimant's favor was then made. On review the award of the full board was affirmed by the superior court. Held :

Code § 114-102 provides in pertinent part: ". . . nor [143 Ga.App. 495] shall 'injury' and 'personal injury' include heart disease, heart attack, the failure or occlusion of any of the coronary blood vessels, or thrombosis, unless it is shown by preponderance of competent and credible evidence that it was attributable to the performance of the usual work of employment . . ." Claimant only shows that he has a heart condition. He did not show that subendocardial infarction Class 2-B was attributable to his employment. There is no evidence nor is there any inference that can be drawn therefrom that the lifting of the heavy poles or any other work-related activity of claimant caused his heart injury. Consequently, the award of compensation is without evidence to support it. The judgment of the superior court is reversed.

Judgment reversed.

WEBB, SMITH and SHULMAN, JJ., concur.

BIRDSONG, J., concurs in judgment only.

DEEN and QUILLIAN, P. JJ., and McMURRAY and BANKE, JJ., dissent.

BIRDSONG, Judge, concurring in the judgment only.

I concur in the judgment of reversal in this case but I am constrained to base my reversal upon a more restricted basis than that advanced by my brothers in the majority. It is noted in the majority opinion that claimant related that he had experienced chest pains for several years following excessive smoking or exertion. I would give little or no weight to that evidence inasmuch as the unrebutted evidence shows that claimant attributed those pains to certain polyps that had been surgically removed prior to the "heart attack" which occurred on January 22, 1976.

Of greater significance is the statement in the majority opinion that there is no evidence, nor is there any inference that can be drawn from the lifting of the heavy poles or that any other work-related activity of claimant [143 Ga.App. 496] caused his heart injury. I must respectfully disagree with this conclusion. It is always difficult in heart attack cases to draw the line between an injury to the heart that is caused by on-the-job exertion and an injury that pre-existed and merely manifested itself or became symptomatic during job exertion. "It becomes a matter of semantics whether the disability is described as a symptom of the disease or a disability to which the exertion was a contributing precipitating factor. It may well be both. The fact-finding body must in this event remain the final arbiter of the compensability of the attack, and of whether the disability arose out of the employment as well as in the course of it." Cox v. Employers Mut. Liab. Ins. Co., 122 Ga.App. 659, 660, 178 S.E.2d 287, 288 (1970). The fact-finder may rely on several...