Laird v. State Highway Dept.

• Decision Date: 10 April 1958
• Docket Number: No. 8523,8523
• Parties: Anna D. LAIRD, Surviving Widow, Claimant-Appellant, v. STATE HIGHWAY DEPARTMENT, Employer, and State Insurance Fund, Surety, Defendants-Respondents. In the Matter of the Death of Edward William Laird.
• Court: Idaho Supreme Court

Page 1079

323 P.2d 1079

80 Idaho 12

Anna D. LAIRD, Surviving Widow, Claimant-Appellant, v. STATE HIGHWAY DEPARTMENT, Employer, and State Insurance Fund, Surety, Defendants-Respondents In the Matter of the Death of Edward William Laird.

No. 8523.

Supreme Court of Idaho.

April 10, 1958.

V. K. Jeppensen, Dubois, Jeppesen & Jeppesen, Boise, for appellant.

Graydon W. Smith, Atty. Gen., Glenn A. Coughlan, Asst. Atty. Gen., for respondents.

SMITH, Justice.

August 25, 1955, Edward William Laird during his work suffered a coronary attack and consequent total heart failure causing his death on that date. Appellant, his widow, claims workmen's compensation death benefits contending that her husband's heart injury, resulting in his death, was caused by accident arising out of and in the course of his employment by respondent employer. Respondents denied liability on appellant's claim. The Industrial Accident Board after a hearing had, entered an order denying to appellant recovery of compensation. Appellant has perfected an appeal from such order.

Laird was employed as a traveling mechanic by respondent State Highway Department. About midafternoon, August 18, 1955, while driving a road roller on road work near Island Park, he suffered a heart attack. The driver of the pilot car took Laird to his pickup at the end of the pilot's car route where he took oxygen.

Laird returned to his home at Dubois the next day, Friday. The following Monday, August 22nd, he consulted Dr. Rees in Idaho Falls, who examined him, and referred him to Dr. McMillin, also of Idaho Falls, for further examination including an electrocardiogram. Appellant testified that her husband hadn't felt so well through Monday and Tuesday, but when he arose Wednesday he felt fine and thought he would be going back to work. He stayed at Warm River that night.

The next day August 25th he reported back to work near Island Park. During the morning he repaired a car generator and a bumper. During the afternoon he worked about an hour, welding hinges on a steel plate over a distance of about six feet; the plate was 'fairly heavy' about eight inches wide and six feet long; this plate constituted the lower portion of the metal rear gate of a mechanized road machine called a pulverizer. While the rear gate itself was raised hydraulically, its hinged, eight-inch lower plate was raised and lowered manually during the hinge welding operation.

Laird wore a welding mask covering his entire face, with his face within a foot or closer to the actual welding operation. The temperature was in the 90's. A fellow worker testified, 'It was awfully sultry that day and hot.' The altitude was over 6,000 feet. Laird was working in the sun. A fellow worker then related what occurred after the welding operation:

'A. After he got through with the welding he had to beat it out with a sledge hammer * * * about a two pound hammer.

* * *

* * *

'Q. He was knocking the slag and sledge from it? A. Yes, and there was a little straightening on the rod, by the hinges.

'Q. He was trying to straighten that? A. Yes, he beat on that some.'

After Laird had finished this job he sat in his pickup to rest where, in but a very short time, he had a heart attack. His co-workers gave him one of his nitroglycerin tablets and administered oxygen to him from a welding machine. He was placed in a patrol car to be taken to Ashton; he expired en route about twenty minutes later.

The only issue involved, as stated by the Board, is whether Laird 'suffered personal injury by accident arising out of and in the course of his employment * * * which contributed to his death.' Appellant's assignments of error question the sufficiency of the evidence to sustain the Board's order denying compensation. Since the evidence is not in conflict, examination of the facts thereby established and the law applicable thereto will determine whether the Board correctly decided the issue.

In a compensation case, the evidence, if undisputed may be reviewed as a matter of law to determine its sufficiency to sustain the findings of the Industrial Accident Board. If the Board's findings are clearly unsupported as a matter of law, it is within the province of this Court to set them aside and the decision based thereon. Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227; In re Hillhouse's Estate, 46 Idaho 730, 271 P. 459; Bybee v. Idaho Equity Exchange, 57 Idaho 396, 65 P.2d 730; In re Black, 58 Idaho 803, 80 P.2d 24; Paull v. Preston Theatres Corporation, 63 Idaho 594, 124 P.2d 562; Aranguena v. Triumph Min. Co., 63 Idaho 769, 126 P.2d 17; Benson v. Jarvis, 64 Idaho 107, 127 P.2d 784; Miller v. Bingham County, 79 Idaho ----, 310 P.2d 1089; Larson v. State, 79 Idaho ----, 320 P.2d 763.

This case is dependent largely upon the testimony of two medical experts, Dr. McMillin who testified for respondents, and Dr. Rees for appellant, both of whom were Laird's attending physicians. Admittedly an analysis of the case, because of its medical aspects, requires and is dependent upon knowledge, neither expected nor possessed by law witnesses not trained in the field of medicine, and the basis for any award must rest upon and be supported by such testimony. Fackenthall v. Eggers Pole & Supply Co., 62 Idaho 46, 108 P.2d 300; Zipse v. Schmidt Bros., 66 Idaho 30, 154 P.2d 171; Walker v. Hogue, 67 Idaho 484, 185 P.2d 708; Oliver v. Potlatch Forests, 73 Idaho 45, 245 P.2d 775.

Appellant assigns error of the Board in finding that 'He [Laird] was also ordered to quit work and rest,' and that 'Laird returned to work contrary to the recommendations of his doctor,' as being not only contrary to, but unsupported by the evidence.

Dr. Rees, who examined Laird August 22, 1955, related Laird's symptomotology to a coronary condition. Dr. Rees thereupon referred Laird to Dr. McMillin for an electrocardiogram, to include testing the heart under strain and load.

Dr. McMillin then examined Laird in regard to past 'episodes of tightness in his chest and pain which seemed to occur on exertion, possibly on walking for 100 yards on level ground, or walking up two flights of stairs, and that usually the pain was relieved by sitting down and resting. He didn't have any previous history of heart disease * * * .' The doctor's examination included an electrocardiogram taken under stress and load. 'Laird had coronary insufficiency, secondary to arteriosclerotic muscular disease.'

Dr. McMillin's testimony, adduced on direct examination, regarding the permissive circumstances of Laird's return to work, is as follows:

'A. I suggested * * * that he stay off work for a period of time. * * * but he said * * * he had to work and that his job was driving a road grader and that it wasn't terrifically strenuous; * * * he wouldn't have to exert himself too much, and that he would like to try that for a while and see if he could do it. That was the way we left it. * * *.

* * *

* * *

'A. * * * We see people that have coronary pain on exertion that have had it for years and can go ahead doing moderate work and using medications and get along real well, * * *.'

and on cross-examination the doctor testified:

'A. * * * I told him if he had to work, I thought he should limit his exertion to things which would not produce pain, and apparently he had a fairly good idea of how much he could do and couldn't do, and it probably wouldn't be too injurious to him, * * *.

'Q. He wasn't told he must not, under any conditions, do any kind of work was he? A. No, * * *.'

Dr. Rees' testimony, on direct examination, permitting Laird's return to work, appears as follows:

'A. * * * He was told he should not do heavy work and had to take it easy. He informed us * * * he felt he could get along with a mild amount of exertion and wanted to continue to work, and we gave him permission to go ahead if he did not do heavy lifting, heavy work, heavy physical exertion.'

Appellant's assignment is meritorious. The portions of the Board's findings to which appellant takes exception are unsupported by both medical experts,--one produced by appellant and one by respondents.

Appellant assigns error of the Board in 'refusing to admit in evidence' Laird's death certificate. Counsel stipulated that the death certificate be sent to the Board and 'marked for identification only.' The certificate is shown marked only 'for identification.' It was neither offered nor introduced in evidence. Hence, regardless of the merits or demerits of the death certificate, it cannot be regarded as evidence in this proceeding; consequently no finding regarding it is permissible.

Appellant next asserts that the Board erred in ruling that 'Claimant has failed by preponderance of the evidence to prove a personal injury by accident arising out of and in the course of decedent's employment and thus further failed to prove a causal connection between Laird's employment and his death.' This and appellant's remaining assignments raise the question of the sufficiency of the evidence to sustain the Board's order denying compensation.

The Board made findings in accordance with the undisputed evidence in regard to the August 25th episode, reading:

'On the morning of August 25, 1955, Laird checked the generator on a patrol, repaired it, did some work on a station-wagon which had a lose bumper (f. 128). In the afternoon just prior to his final attack Laird was welding a steel door on a pulverizer, the job taking approximately one hour, the temperature was in the nineties and the elevation where Laird was working was approximately 6,000 feet (ff. 93 to 97). After he completed the welding he beat out the weld with a two pound sledge hammer. After this was finished he said he would like to rest a few minutes and went and sat in the pickup, his face started turning blue and he started gasping for air. He was given a nitroglycerin pill and oxygen from the welding tank was administered (ff. 98 to 101). Laird was then placed in a State Patrol...