Terry v. Associated Stone Co.

• Decision Date: 29 April 1960
• Citation: 334 S.W.2d 926
• Parties: Paul TERRY, Appellant v. ASSOCIATED STONE CO., Inc., et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 926

334 S.W.2d 926

Paul TERRY, Appellant v. ASSOCIATED STONE CO., Inc., et al., Appellees.

Court of Appeals of Kentucky.

April 29, 1960.

Charles McConnell, Louisville, for appellant.

Gavin H. Cochran, Peter, Heyburn & Marshall, Louisville, for appellees.

PALMORE, Judge.

The appellant, Paul Terry, a crane operator employed by the appellee, suffered a coronary occlusion with resulting damage to his heart following strenuous exertion in removing a cable from the crane. His claim seeking workmen's compensation was dismissed by the referee on the ground that disability from a heart attack brought on by strain or exertion is not compensable. On a full board review, with two of its five members dissenting, the Workmen's Compensation Board found as a fact that appellant 'suffered personal injuries and total disability for work from overexertion and unusual strain,' set aside the action of the referee and awarded maximum compensation. On appeal the circuit court set aside the award, adopted the opinion of the referee and dismissed the claim. The claimant now appeals to this court, contending that (1) he suffered a compensable injury and (2) the finding of fact by the board was conclusive on the appeal to the circuit court.

After the heart attack Terry was first seen and treated by Dr. P. E. Martin, a general practictioner, who testified that in his opinion the cause was 'a pre-existing condition that would predispose to the occlusion occurring at any given time,' the stress or strain of the physical exertion being 'a factor' in the occurrence. Following hospitalization of some three weeks the patient was referred to Dr. R. M. McClendon, a specialist in internal medicine, for further consultation and treatment. Dr. McClendon gave it as his opinion that the factors of importance in precipitating the occlusion were (1) 'underlying atherosclerosis [a type of arteriosclerosis] of the coronary vessels,' (2) the strenuous activity, and (3) possibly the time of the strenuous activity, as having taken place in the early afternoon of a very hot July day and just after Terry had eaten lunch. He testified that there is a divergence of medical opinion on the importance of activity as a factor in precipitating heart damage but that 'certainly strenuous exercise in my opinion can be a contributing factor.' This witness said also that the pathological changes described as atherosclerosis 'in themselves will gradually progress over a period of years as to cause occlusion of the vessel,' thus indicating the disease to be progressive in nature, as distinguished from a static condition.

Dr. Morris M. Weiss, a heart specialist, examined the cardiograms taken by Terry's doctors and testified for the defense, largely on the basis of hypothetical questions. It was his opinion that the attack was 'the natural result of pre-existing disease' and not a natural and direct result of trauma. He conceded it to be generally accepted 'that sudden, extraordinary, unusual strains can precipitate an occlusion in a person who has the background, the underlying arteriosclerosis,' but was of the view that in the case at hand the occlusion was the natural result of the pre-existing condition and just happened to occur following the strenuous exertion. According to his testimony a coronary occlusion occurs only after an arteriosclerotic condition has developed over a period of many years. Most such attacks occur while the victim is at rest or engaged in some routine activity.

At the request of the Workmen's Compensation Board Dr. Herbert L. Clay, Jr., chief of the Department of Cardiology at the University of Louisville College of Medicine, a qualified specialist, made an examination of the patient and the cardiograms and testified as a disinterested witness. It was his opinion that Terry, 'even though he gave a negative history at the time of illness in July, 1955, undoubtedly had underlying coronary artery disease, atherosclerotic. It is likely that the extreme exertion merely precipitated the acute coronary occlusion * * *.' In response to hypothetical questions asked by each side he answered that the coronary occlusion, though resulting from an underlying arterial disease, was 'probably precipitated' by Terry's exertion. He said also that he had never made a diagnosis of coronary occlusion where he did not feel that it resulted from underlying atherosclerotic or arteriosclerotic changes. Like Dr. Weiss, he testified that the underlying condition that eventuates in an occlusion develops over a relatively long period of time, and that most attacks occur while the individual is at rest.

Despite the absence of symptoms prior to the onset of Terry's heart attack it is impossible to escape the conclusion that the predominating causative factor was a pre-existing arteriosclerotic condition. The most that any of the medical witnesses said with respect to the physical exertion was that it probably 'precipitated' the occlusion. If, as contended by appellant, the board's finding of fact that the disability resulted from overexertion and unusual strain impliedly excludes the pre-existing disease as a causative factor, then there is no probative evidence to support it. See B. F. Avery & Sons v. Carter, 1924, 205 Ky. 548, 266 S.W. 50, 53. If, on the other hand, as contended by appellee, its effect is to draw a conclusion from facts substantially undisputed, it is a finding of law and therefore is not conclusive on appeal. Hayes Freight Lines, Inc. v. Burns, Ky., 1956, 290 S.W.2d 836. Actually the board's finding represents a choice between conflicting expert opinions, which, for purposes of the distinction between fact and law, are 'facts.'

This appeal presents the first case in which a finding of the Workmen's Compensation Board that a heart attack was in fact caused in part by the strain of work at a specific time comes before this court definitely supported by the opinion of one or more medical witnesses. In attributing the disability wholly to the exertion the board's finding extends beyond the opinions of the doctors, but it is nonetheless an acceptance of the conclusion that the exertion was a causative factor. The question being of a medical nature entirely, determined on the basis of qualified expert testimony, it would be absurd for a court of lawyers to reject that conclusion as unsupported by probative evidence. Our task, rather, is to resolve the purely legal question of whether the finding of fact results in liability.

A disabling heart attack resulting from a pre-existing disease but possibly superinduced by excitement or exertion has not been recognized in this jurisdiction as compensable. Salmon v. Armco Steel Corp., Ky.1955, 275 S.W.2d 590; H. Smith Coal Co. v. Marshall, Ky.1951, 243 S.W.2d 40: Rue v. Kentucky Stone Co., 1950, 313 Ky. 568, 232 S.W.2d 843; Fannin v. American Rolling Mill Co., 1940, 284 Ky. 188, 144 S.W.2d 228; Aden Mining Co. v. Hall, 1933, 252 Ky. 168, 66 S.W.2d 41; Wallins Creek Collieries Co. v. Williams, 1925, 211 Ky. 200, 277 S.W. 234; Rusch v. Louisville Water Co., 1922, 193 Ky. 698, 237 S.W. 389. However, all of these decisions except in the Wallins Creek case sustained findings of the Workmen's Compensation Board which were supported by substantial medical testimony adverse to the claimant's theory that the disability resulted wholly or partially from the excitement or strain. In the Wallins Creek case all of the medical opinion was that the death was caused by pre-existing disease. That one of the doctors further testified that the attack was 'perhaps superinduced' by overexertion was held to be insufficient evidence to support the board's finding in favor of the claim. A mere possibility, of course, is not alone sufficient to support a finding of fact. Old King Min. Co. v. Messer, Ky.1952, 252 S.W.2d 863; Ratliff v. Cubbage, 1951, 314 Ky. 716, 236 S.W.2d 944; American Rolling Mill Co. v. Pack, 1939, 278 Ky. 175, 128 S.W.2d 187.

The Wallins Creek opinion expressed doubt...