Knight v. Fulton Industries

• Decision Date: 10 March 1971
• Docket Number: 3,Nos. 1,No. 45553,2,45553,s. 1
• Citation: 123 Ga.App. 538,181 S.E.2d 691
• Parties: Lillie Mae KNIGHT v. FULTON INDUSTRIES
• Court: Georgia Court of Appeals

Page 691

181 S.E.2d 691

123 Ga.App. 538

Lillie Mae KNIGHT v. FULTON INDUSTRIES.

No. 45553.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 10, 1971.

Rehearing Denied March 31, 1971.

Syllabus by the Court

An award of the Board of Workmen's Compensation must be supported by findings of fact based on evidence. Where the findings of fact are erroneous, the case should be recommitted to the board for further consideration.

This is a Workmen's Compensation case. A widow-claimant appeals from a judgment of the Fulton Superior Court affirming an award of the board denying benefits.

The deceased had a history of coronary disease and emphysema. He was under medical treatment and taking medication. A vital determination in the case was whether exertion played a part in the deceased's death. The death certificate submitted in evidence showed the deceased died by reason of cardiac arrest due to arteriosclerotic coronary arteries, which was signed by Dr. Murphy, who also testified as an expert for the claimant. The deceased did a certain amount of climbing and descending a flight of stairs and walking to and from certain locations in the plant.

The board found that 'the deceased (sic) mode of locomotion between the two floors on which he worked was by elevator.' Appellant contends that in making this finding the board completely ignored clear and undisputed evidence that the deceased had used the stairs several times that day. In addition, there is evidence that the deceased did considerable walking to and from the places of work.

Albert P. Feldman, Atlanta, for appellant.

Smith, Cohen, Ringel, Kohler, Martin & Lowe, Williston C. White, Atlanta, for appellee.

EVANS, Judge.

Upon consideration of the motion for rehearing, a majority of this court voted to grant the motion, vacate the judgment of affirmance, and reverse the judgment.

It appears that the award of the State Board of Workmen's Compensation is premised upon an erroneous finding of fact. Among other things, the findings of fact by the board were:

'His (Knight's) employment consisted of cutting leather straps and helping to install them on certain machinery of the employer. The record reveals that neither of the operations could be considered to be strenuous activity or of a nature to cause undue exertion on the part of the deceased. We further find that the deceased mode of locomotion between the two floors on which he worked was by elevator. The board further finds that ninety to ninety-five percent of the claimant's work was of a sedentary nature.' (Emphasis supplied.)

The evidence before the board by a fellow worker was uncontradicted to the effect that Clifford R. Knight, the employee, walked everywhere his fellow employee walked; that there were two modes of locomotion, an elevator between floors to go from the belt shop to the picker room, and a flight of stairs from the picker room to the opening room, and that Knight walked up and down these stairs at least four times on the day of and shortly before his death. He had a long standing history of coronary disease and emphysema and had been for some time receiving active medical treatment for these conditions. It appears from a reading of the evidence of the witness McCord that the board failed to credit the testimony of McCord as to the working conditions and distances involved. This testimony is somewhat vague and conflicting due to the witness's misunderstanding of the questions asked of him, but a study of this testimony discloses that Knight and McCord worked together in three separate locations, i.e., (1) the belt shop on the ground floor; (2) the picker shop located one floor up by elevator and approximately a city block from the elevator; and (3) the opening room down a flight of stairs from the picker room. (It cannot be ascertained from the testimony whether the belt shop and the opening room are on the same floor). The findings of fact of the board are completely erroneous 'that the deceased mode of locomotion between the floors on which he worked was by elevator.' (See Record, pp. 35, 36, 96, 97, 99, 102 and 120). Thus, the erroneous findings of fact to the effect that only an elevator was used for transportation between the two floors, and that Knight's employment was of a sedentary nature, and that his death took place following a short period of rest may well have influenced the board's finding against claimant. Be that as it may, where the findings of fact are not supported by the evidence, the award should be reversed. See Code § 114-707; Southeastern Express Co. v. Edmondson, 30 Ga.App. 697(1), 119 S.E. 39; Atlanta Transit System, Inc. v. Harcourt, 94 Ga.App. 503, 95 S.E.2d 41; Ideal Mutual Ins. Co. v. Ray, 92 Ga.App. 273, 276, 88 S.E.2d 428. The award must be supported by the findings of fact. The findings of fact must be based on evidence. See Lathem v. Hartford Accident & Indemnity Co., 60 Ga.App. 523, 527, 3 S.E.2d 916; Woodruff v. American Mutual Liability Ins. Co., 67 Ga.App. 554, 560, 21 S.E.2d 298; United States Fidelity & Guaranty Co. v. Brown, 68 Ga.App. 706(3), 23 S.E.2d 443. The case should be recommitted to the board for it to render a proper finding of fact on which to base its award.

Judgment reversed.

BELL, C.J., and PANNELL, DEEN, QUILLIAN and WHITMAN, JJ., concur.

HALL and JORDAN, P. JJ., and EBERHARDT, J., dissent.

HALL, Presiding Judge (dissenting).

Under the mandate of our Supreme Court, this Court has consistently affirmed awards to claimants in heart attack cases under the 'any evidence' rule. Thomas v. United States Cas. Co., 218 Ga. 493, 128 S.E.2d 749. The application of this neutral principle of law should be followed when the board finds for the employer as well as when it finds for the claimant.

The evidence shows that on the day of his death the employee's only work-related activity which could be considered strenuous was climbing and descending stairs. The medical evidence also showed that, to be a competent producing cause of his heart attack, this activity would have to have occurred within a very short time before the attack. The only evidence of what he was doing that day was the testimony of a co-worker-testimony which was unfortunately vague and conflicting. On direct examination, this witness gave the impression that deceased had descended the stairs about 30 minutes before his death. However, on cross examination and redirect (and in response to more specific and pointed questioning), he testified that deceased made that particular trip to the ground floor by elevator and that the last descent by stairs took place two or two and one-half hours previously...