Lavista Equipment Supply, Inc. v. Elliott, 75838

• Decision Date: 08 February 1988
• Docket Number: No. 75838,75838
• Citation: 186 Ga.App. 585,367 S.E.2d 811
• Parties: LAVISTA EQUIPMENT SUPPLY, INC. v. ELLIOTT.
• Court: Georgia Court of Appeals

Page 811

367 S.E.2d 811

186 Ga.App. 585

LAVISTA EQUIPMENT SUPPLY, INC. v. ELLIOTT.

No. 75838.

Court of Appeals of Georgia.

Feb. 8, 1988.

Rehearing Denied March 29, 1988.

Certiorari Denied April 28, 1988.

Susan V. Sommers, Sandra G. Chase, Atlanta, for appellant.

Clarence R. Horne, Jr., Conyers, for appellee.

BIRDSONG, Chief Judge.

We granted this interlocutory appeal to determine whether the Board of Workers' Compensation, and the superior court by affirmance, erred in application in an alleged heart attack case of the "natural presumption," by holding that " 'where an employee is found dead in a place where he might reasonably be expected to be in the performance of his duties, a natural presumption arises that his death arose out of and in the course of his employment.' Brown Transport Corp. v. Jenkins, 129 Ga.App. 457, 460, 199 S.E.2d 910. The speculative opinion of a coroner does not reveal the cause of death with SUFFICIENT medical certainty to rebut such presumptions in the absence of an autopsy in this case."

Employee Otis P. Elliott died on the job, while sitting in his employer's truck at a railroad crossing. The medical examiner stated Elliott died of (1) myocardial failure, (2) acute coronary insufficiency and (3) atherosclerosis; the coroner relied on this statement as the cause of death. The board found this opinion to be speculative only, since there was no autopsy. There was evidence Elliott had, a few days before his death, suffered an episode of severe chest pain at home; and his family physician testified he performed thoracic surgery on Elliott in 1972. He also testified that Elliott's death could have been the result of causes other than heart attack and that his work activities were not sufficient to cause his death.

On appeal, the employer contends the opinion of the medical examiner (and coroner) that Elliott died of myocardial failure, acute coronary insufficiency and atherosclerosis, was based on Elliott's medical history and other information, and did reveal a definitive cause of death, contrary to the board's finding that without an autopsy the opinion was merely speculative. Therefore, says the employer, the death was not unexplained, and so there never arose the natural inference that a death is employment-related "when an employee is found dead in a place where he should be in the performance of his duties." Held:

Elliott's grandson, who was with him in the truck when he died, said Elliott had had an extremely difficult time driving this truck. This testimony is not disputed by any contradiction, i.e., by any evidence he positively did not have a difficult time driving the truck. The board found Elliott's occupation was "of a strenuous nature." This finding is supported by evidence.

It is true that " 'when an employee is found dead in a place where he might reasonably have been expected to be in the performance of his duties, it is presumed that the death arose out of his employment.' " But this inference applies only to cases where the death is unexplained, that is, where the employee literally is "found dead" and the cause of death is not known. See Zamora v. Coffee Gen. Hosp. 162 Ga.App. 82, 84, 290 S.E.2d 192. In such a case the difficulties of proof necessitate this inference. Wherever the cause of death (e.g., strangulation, shooting, heart attack) is known, the death is explained; the question whether the death was work-related is then generally capable of objective proof, and there is no need for a presumption that it was caused by employment duties. That is, the claimant is not entitled to rely upon the presumption that the death arose out of the deceased's employment but must submit probative proof on the issue of the causal connection so as to comply with the requirements in OCGA § 34-9-1(4). Id., p. 85, 290 S.E.2d 192.

If the death is found to be explained as heart-related, the case is expressly governed by the specific standard of proof in OCGA § 34-9-1(4), which provides: "nor 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 a preponderance of competent and credible evidence that [it was] attributable to the performance of the usual work of employment." See G. & H. Logging v. Burch, 178 Ga.App. 28, 30, 341 S.E.2d 868; Brown Transport Corp. v. Blanchard, 126 Ga.App. 333, 190 S.E.2d 625.

The author has contended on occasion that, difficulties of proof notwithstanding, the clear and specific provisions of this code section as to heart attack cases, preclude the controlling application as "any evidence" of any inference that the heart attack arose in and out of the course of employment. Zippy Mart v. Fender, 170 Ga.App. 617 at 620, 624(3), 317 S.E.2d 575 (dissent, J. Birdsong); Home Indem. Co. v. Guye, 143 Ga.App. 494, 238 S.E.2d 549 (concurrence in judgment only, J. Birdsong) at p. 496, 238 S.E.2d 549. But, in Guye v. Home Indem. Co., 241 Ga. 213, 244 S.E.2d 864 and in Southwire Co. v. Cato, 250 Ga. 895, 897, 302 S.E.2d 91, the Supreme Court held that when the death is explained as heart attack, there arises a natural inference the death was work-related if the evidence shows the work engaged in by the employee was sufficiently strenuous or of such a nature that, combined with the other facts of the case as to raise such a natural inference...