Talmo v. New Castle County

• Decision Date: 12 October 1982
• Parties: Anthony F. TALMO, Plaintiff Below, Appellant, v. NEW CASTLE COUNTY, Defendant Below, Appellee. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 758

454 A.2d 758

Anthony F. TALMO, Plaintiff Below, Appellant, v. NEW CASTLE COUNTY, Defendant Below, Appellee.

Supreme Court of Delaware.

Submitted: Oct. 12, 1982.

Decided: Dec. 23, 1982.

Upon appeal from the Superior Court. Affirmed.

Harvey B. Rubenstein (argued), Wilmington, for appellant.

B. Wilson Redfearn, Colin M. Shalk (argued), of Tybout, Redfearn, Casarino & Pell, Wilmington, for appellee.

Before HERRMANN, C.J., McNEILLY, QUILLEN, HORSEY and MOORE, JJ., constituting the Court en Banc.

HERRMANN, Chief Justice:

In this appeal from a decision of the Superior Court affirming a denial by the Industrial Accident Board (hereinafter "the Board") of workmen's compensation benefits, we are asked to reconsider the "unusual exertion" standard of compensability presently applied by this Court in pre-existing physical condition cases. See General Motors Corp. v. Veasey, Del.Supr., 371 A.2d 1074 (1977).

I.

The claimant, Anthony F. Talmo, was employed with the New Castle County Department of Public Works as a maintenance and construction worker during the period November, 1972 through July, 1980. In July, 1980, Talmo was 63 years of age and was overweight. There was concern about Talmo's health at the time of the inception of his employment. His pre-employment medical papers indicated that he was physically qualified "with restrictions." Therefore, his supervisor assigned him to work less strenuous than would have otherwise been the case. His assigned duties involved removing, resealing, and replacing 200-pound manhole covers with the assistance of another. Specifically, Talmo's regular work involved raising the cover several inches with a tool, sliding it to the side, cleaning the seal and replacing the cover. Talmo worked on about 100 manhole covers each week.

On July 17, 1980, the claimant suffered a myocardial infarction while lifting his second cover of the day with the help of a fellow employee. He petitioned the Board for compensation pursuant to 19 Del.C. § 2304. ¹

At the hearing before the Board, Dr. Constantine W. Michell, Talmo's treating physician, testified that he started complaining of chest pain in October, 1979. As a result, Dr. Michell prescribed a medication and advised Talmo to go on light duty. However, Talmo did not heed the advice because he feared losing time. On July 15, 1980, he complained of a recurrence of chest pain. Dr. Michell increased the medication and scheduled a reexamination for 2 days later, the date on which the heart attack occurred.

Dr. Michell testified that while the lifting of the manhole cover was the activity most proximate to the heart attack and would have or could have precipitated the infarction, several other factors affected the claimant at the time, i.e., carcinoma, anemia, diabetes, age, and weight. Dr. Michell concluded that, given Talmo's pre-existing condition, the infarction was inevitable as a result of any type of exertion.

Dr. Anthony Lombardi, who had reviewed Talmo's medical file but had not examined him, testified that Talmo was suffering from a cardiac disease prior to the date of the infarction and, based upon the angina pain pattern, a heart attack was inevitable.

The Board found that the infarction was the result of an insidious disease and was, therefore, not compensable. The Board also found that no unusual exertion was present at the time of the infarction since it was unquestionably within Talmo's regular duties to lift manhole covers with the help of a fellow employee as he was doing at the time he was stricken.

On appeal, the Superior Court affirmed, 444 A.2d 298, holding that substantial evidence supported the conclusion of the Board that Talmo's injury was not the result of an unusual exertion and was not, therefore, a compensable "accident" under Delaware law. We affirm.

II.

Talmo urges us to abandon the unusual exertion standard reviewed by this Court most recently in Veasey, and to adopt the standard espoused by Professor Larson in his treatise. 1A Larson, Workmen's Compensation §§ 37 and 38.

In Veasey, this Court considered the three frames of reference in which an exertion may be considered "unusual": (i) the claimant's particular occupational duties; (ii) employment encompassing all vocations; and (iii) ordinary non-employment life. This Court there held that the exertion must be unusual as compared to the claimant's particular occupational duties so that there may be some assurance that the employment was a substantial cause of the injury. 371 A.2d at 1075-6.

The Larson standard is directed to the third frame of reference considered in Veasey, asking whether the claimant's on-the-job exertion was greater than the exertion of a reasonable man in everyday non-employment life. Talmo urges upon us the Larson rationale: that the Veasey unusual-exertion-in-employment rule discriminates against any laborer with a pre-existing heart condition whose job requires strenuous physical exertion as a regular part of his employment; that in such situation, heart attacks will seldom, if ever, be compensable;...