Lilly v. Shenandoah's Pride Dairy

• Decision Date: 07 October 1977
• Docket Number: No. 761555,761555
• Citation: 218 Va. 481,237 S.E.2d 786
• Parties: Mrs. Henry R. LILLY v. SHENANDOAH'S PRIDE DAIRY and Travelers Insurance Company. Record
• Court: Virginia Supreme Court

Page 786

237 S.E.2d 786

218 Va. 481

Mrs. Henry R. LILLY v. SHENANDOAH'S PRIDE DAIRY and Travelers Insurance Company.

Record No. 761555.

Supreme Court of Virginia.

Oct. 7, 1977.

Lawrence J. Pascal, Alexandria (Ashcraft, Gerel & Koonz, Alexandria, on brief), for appellant.

Paul D. Krause, Fairfax (Brian H. Rhatigan, Carr, Jordan, Coyne & Savits, Fairfax, on brief), for appellees.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

HARRISON, Justice.

The issue is whether the condition causing the disability of Henry R. Lilly, and his subsequent death, was the result of an accidental injury arising out of and in the course of the decedent's employment. On October 16, 1975, Lilly filed an application for compensation for total work incapacity as the alleged result of an accident which happened on February 7, 1975. Thereafter Lilly died on December 11, 1975. Subsequently, application was filed on behalf of the decedent's personal representative claiming total temporary disability benefits from February 7, 1975 to February 2, 1976, and application was made by decedent's dependent widow, Thelma Lilly, for death benefits.

The employer, Shenandoah's Pride Dairy, and its carrier, Travelers Insurance Company, defended on the grounds that the condition causing decedent's disability and his subsequent death was not the result of an accidental injury arising out of and in the course of his employment, and that any claim asserted against them for temporary total benefits did not survive the employee's death.

In an abbreviated opinion, adopted upon review by the full Commission, a deputy commissioner found after "a careful review of this entire record with particular reference to its medical aspects . . . that Lilly sustained a compensable accidental injury on February 7, 1975 and disability resulting therefrom until the death on December 11, 1975", but that the claim for temporary total disability did not survive the decedent. The opinion further recites that the medical record in the case fails to persuade the Commission that the death of the decedent on December 11, 1975, resulted from the accidental injury of February 7, 1975, observing that "the medical record is in strong conflict" and that "it is not the function of the Commission to choose from several positions or theories of a proponent's case the one that is most favorable to him". Accordingly, the Commission denied both the application of the claimant's personal representative for temporary total benefits and the claim of the widow for death benefits.

The principles of law which control our decision here are well-established. A claimant for death benefits under Code § 65.1-65 is required to prove a causal connection between the accident and the subsequent death by a preponderance of the evidence. The decedent, Henry R. Lilly, died of a heart attack. Both this Court and the Industrial Commission have held that where a claimant has suffered a heart attack which arose out of and in the course of his employment and which is determined to have been a producing or contributing factor in a second fatal heart attack, regardless of whether the second incident itself is compensable, death benefits are available to the dependent distributees under Code § 65.1-65. In Rogers v. Williams, 196 Va. 39, 42, 82 S.E.2d 601, 602-03 (1954), we stated:

"When it is established that an accident to an employee activates an undeveloped and dangerous physical condition with mortal consequences, such accident is properly considered the proximate cause of the fatality. Causal connection is established when it is shown that the employee has received a compensable injury which materially aggravates or accelerates the pre-existing latent disease which becomes the direct cause of death. Justice v. Panther Coal Co., 173 Va. 1, 6, 7, 2 S.E.2d 333, 336."

We have also held in numerous cases, and specifically in Rogers v. Williams, supra, that:

"Where two conclusions may legitimately be drawn from the evidence, one favorable to the claimant and the other favorable to the employer, a factual question is presented for the determination of the Commission. Under these circumstances it becomes the function of the Commission to evaluate the evidence, and its finding of fact on the issue presented is binding on us. Walsh Construction Co. v. London, supra, (195 Va., 810, at page 816, 80 S.E.2d 524)" 196 Va. at 42, 82 S.E.2d at 603.

However, in the instant case, because of the inadequacy of the statement of facts in the opinion of the Commission and the inconsistency of the conclusions it reached, we must make our own evaluation of the evidence and the weight to be accorded it.

Henry R. Lilly was employed by Shenandoah's Pride Dairy as a milk deliveryman in Prince William County. On February 7, 1975, while lifting and unloading cases of milk from his delivery truck Lilly became ill. His condition was recognized by a fellow employee as a heart attack, and Lilly was taken to Prince William Hospital in Manassas, Virginia, where he was placed in its intensive care unit. He remained in the hospital for approximately two weeks. Upon release, and because of his weakened condition, Lilly was unable to return to his former employment, or to perform any work. Thereafter he moved from Virginia to his family home in Beckley, West Virginia. His local doctor in Beckley referred Lilly for treatment to a cardiac specialist in Cleveland, Ohio. On the evening before his appointment with the Cleveland doctor, Lilly suffered another heart attack and was placed in the intensive care unit of the Cleveland Clinic, where he died on December 11, 1975, the following day.

The record shows that prior to February 7, 1975, Lilly suffered several fainting spells which he attributed to his mild diabetic condition, although some of his fellow workers had suggested to him that he might have heart trouble. There are no issues of fact regarding Lilly's average weekly wage, the nature of his employment or his dependents. If there is a causal relationship between the myocardial infarction which resulted in the death of Lilly on December 11, 1975, and the effect of his work in lifting cases of milk for his employer on February 7, 1975, either by way of aggravation or as the direct cause of the condition, this case is compensable because the evidence shows an accident. In Derby v. Swift & Co., 188 Va. 336, 343, 49 S.E.2d 417, 421 (1948), it was said: "While the decedent's injury was not accidental as to cause, it was as to result and this is sufficient under the statute."

An analysis of the medical testimony is necessary to determine if it preponderates in showing a causal relationship between Lilly's death and the physical exertion incident to the work he performed on February 7, 1975. It is again noted that, although the Commission denied the claim of the widow for death benefits, it held that the evidence, particularly with reference to its medical aspects, established a compensable accidental injury of Lilly on February 7, 1975, and that disability resulted therefrom until his death in December.

Lilly's attending physician at the Prince William Hospital from February 7 until March 7, 1975, was Dr. W. James Werner. This physician's report disclosed that while Lilly was working for Shenandoah's Pride Dairy lifting milk at the Holiday Inn he experienced severe chest pain. Dr. Werner's diagnosis was "acute myocardial infarction with ventricular fibrillation", and his conclusion was that Lilly "would never be able to do his previous occupation; may never be able to return to work". His prognosis for the patient was "fair".

On April 10, 1975, Dr. Werner wrote the Travelers Insurance Company a letter in which he reiterated his diagnosis and stated that during the decedent's hospitalization "further evidence of an acute myocardial infarction was documented". Werner further observed that "electrocardiograms obtained prior to ...