L.B. Priester & Son v. McGee, 40907

• Decision Date: 10 November 1958
• Docket Number: No. 40907,40907
• Citation: 106 So.2d 394,234 Miss. 471
• Court: Mississippi Supreme Court
• Parties: L. B. PRIESTER & SON et al. v. Sylvester M. McGEE.

Page 394

106 So.2d 394

234 Miss. 471

L. B. PRIESTER & SON et al. v. Sylvester M. McGEE.

No. 40907.

Supreme Court of Mississippi.

Nov. 10, 1958.

Ethridge, Minniece & Bourdeaux, Meridian, for appellants.

Frank S. Shanahan, Jr., Vicksburg, for appellee.

LEE, Justice.

Sylvester M. McGee, earning an average weekly wage of $96, suffered a heart attack on December 27, 1956, while working in the employ of L. B. Priester & Son at Meridian. The attorney-referee, after a hearing, awarded him temporary total disability of $25 per week from December 28, 1956 to April 1, 1957, and $25 per week under Sec. 8(c)(21) of the Workmen's Compensation Law, Code 1942, Sec. 6998-09(c)(21), thereafter, together with all expenses for medical services and supplies. On successive appeals by the employer and its insurer to the commission and the circuit court, the award was affirmed; and they have appealed to this Court.

McGee had sustained a heart attack on October 20, 1952 while engaged about his work at Biloxi. For that injury, he settled with his employer, under the Workmen's Compensation Act, for a lump sum of $4,000. At the time he was attended by Dr. Norman W. Todd. On May 15, 1954, he became gainfully employed. His doctor advised him to limit his activities to finishing carpenter work where he would handle light materials and do his work leisurely without emotional or physical strain. He was seen professionally by the doctor from time to time. In his first job, from May until October 1954, he made vanity dressers. In his second job from November 1954 until May 1955, his work consisted largely of cabinet making. Thereafter he was employed in several instances as a general carpenter. He was a diabetic and took insulin regularly. Except for occasional anginal pains, he was able to do his work and got along very well and without any substantial loss of time.

In the early part of November 1956, his union referred him to L. B. Priester & Son on a job at Meridian. He asked for foreman duty, but such position was not open. On December 27, 1956, in the fifth week of this employment, he was assisting in the installation of steel beams. He and his companion, on a scaffold, were using a heavy chisel and hammer to cut the metal overhead. While doing this, he experienced a sensation like a bad sore throat and could scarcely get his breath. He immediately came down off the scaffold, rested a while, drove to his home in Newton, called Dr. Todd and was subsequently admitted to the hospital where he spent an aggregate of 36 days.

Dr. Todd testified that McGee's attack of December 27, 1956, was a severe coronary occlusion with infarction, and that his work at the time had a part in precipitating the attack. He said that there had been a normal healing after the 1952 episode, although the basic disease continued; and that the 1956 attack was a separate and distinct coronary occlusion rather than a continuation of the 1952 attack. The doctor also said that McGee reached maximum recovery on April 1, 1957. He was of the opinion, on the day of the trial, that the patient was not then, nor would he in the forseeable future be, able to work at any gainful employment. He estimated that there had been a 50 per cent loss of function as a result of the first episode and 50 per cent of what was left as a result of the second attack. The reason why he had advised his patient to do light carpenter work was in order to reduce physical and mental exertion in the hope that subsequent attacks might be prevented.

Although the claimant contended that he quit work for Wilson Manufacturing Company on account of a difference with Wilson's brother, Wilson testified that, while McGee's work was satisfactory, he discharged him because Dr. Todd advised him that he would not work the man.

E. C. James testified that, on an occasion when McGee was at work for him finishing the walls of a room, he appeared to be bothered in doing overhead work and that, on the last day, he seemed 'overly tired.'

Dr. B. Joseph Price, a witness for the employer, having the benefit of Dr. Todd's records, made an examination of McGee, and arrived at the same physical findings. It was his opinion that the claimant had a severe arteriosclerotic disease with marked involvement of the coronary arteries accompanying diabetes. He said that Dr. Todd's records showed that McGee had been able to do the usual type of carpenter work which he had been accustomed to without too much difficulty from the date of his recovery from the attack in 1952 and until the attack in 1956; and that in his several occupations he had gotten along quite well. He could not see any causal relationship between the activity in which McGee was engaged at the time and the coronary occlusion that he suffered. He explained that people, who have heart attacks, are inclined to do too little; and that he allows his patients to fish, hunt, and continue their usual exercises as long as they avoid strain which produces pain or extraordinary fatigue. He did concede that 'occasionally exertion, especially a strain of an extraordinary nature, may precipitate some sequence of events which would develop into a block of the coronary artery.' On cross-examination, he was asked: 'I am correct in assuming from your testimony that Mr. McGee's medical history was of such a nature that he would be more prone to become victimized by a heart attack from exertion that a normal person?' And his reply was: 'I did not say that. I don't think he would be prone to have a heart attack from exertion. I think he would be more prone to have a heart attack than the normal individual, shall we say. He is more subject to angina as a result of exertion.'

As grounds for the reversal and disallowance of the award, the appellants assign and argue that (1) appellee's employment was obtained by concealment and misrepresentation of his physical condition, and (2) the disability did not arise from an 'accidental injury' within the purview of the Workmen's Compensation Law.

The appellee admitted that he did not tell Priester, at the time of his employment, about his previous heart attack in 1952 or the state of his health since. He said that Priester did not require a physical examination and did not ask him anything about the previous or then state of his health. He further testified that his employment, after he returned to work in 1954, was more or less constant; that he had not been disabled at any time thereafter; and that he did not think it necessary to tell Priester what had happened four years previously. He did not make any misrepresentation. In fact, he made no representation about the matter whatever. Nothing transpired to evidence any desire on the part of Priester to ascertain any information about the previous state of the appellee's health. In other words, there was no proof whatever on which to base a claim that the appellee concealed or misrepresented the state of his physical condition.

The appellants further contend that Dr. Todd advised McGee, on his return to work after the heart attack in 1952, that he should do light work; that this had the effect of warning him that if he continued to do regular carpenter work, he would likely have another attack; that, when he chose to do regular carpentry work, another attack could reasonably be expected; and that, consequently the attack of 1956 was not unexpected or accidental within the meaning of the Workmen's Compensation Law.

'The word 'accident' has been held to have a generally accepted meaning as something happening without design and being unforeseen and unexpected to the person to whom it happens * * *.' 99 C.J.S. Workmen's Compensation Sec. 153, page 526. '* * *, a casualty occurring without expectation or foresight is contemplated, * * * something unusual, unforeseen, or unexpected; * * * an unlooked for and untoward event which is unexpected and undesigned.' Sec. 154, page 528 thereof. As to the question by whom the event must be...