U.S. Cas. Co. v. Thomas, No. 39585

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: EBERHARDT; RUSSELL; RUSSELL
• Citation: 127 S.E.2d 169,106 Ga.App. 441
• Docket Number: No. 39585,No. 3
• Decision Date: 03 July 1962
• Parties: U. S. CASUALTY COMPANY et al. v. Mrs. B. E. THOMAS. . Division

Page 169

127 S.E.2d 169 106 Ga.App. 441 U. S. CASUALTY COMPANY et al.
v.
Mrs. B. E. THOMAS. No. 39585. Court of Appeals of Georgia. Division No. 3. July 3, 1962.
Rehearing Denied July 27, 1962.

Page 170

Syllabus by the Court

Where the uncontroverted and unimpeached evidence of three physicians was that the exertion of the deceased on the occasion when he suffered a coronary occlusion resulting in a myocardial infarction while performing his normal and usual duties of employment, was not causally related to or did not precipitate the attack, an award of compensation is not authorized.

Berry E. Thomas, an employee of Atlanta Newspapers, Inc., went to his physician, Dr. L. Harvey Hamff, on December 3, 1960 complaining of pain in his chest and left arm. He was hospitalized at Georgia Baptist Hospital and tests, including an electrocardiogram, were made to determine whether he might then be suffering from a heart attack and, if so, the nature of it. The tests indicated a normal heart and heart action, with no clots, blocks or damage. He was discharged and apparently suffered no further trouble or discomfort until May 11, 1961.

[106 Ga.App. 442] Thomas was employed to drive a delivery truck and to make delivery of bundles of newspapers to designated places, including Chamblee. He reported for work about 2:30 p. m. on May 11, which was his normal time for going to work. It was customary for the truck driver to assist in loading the bundles of papers on the truck and to help in stacking them off on the ground at the delivery points. Normally Mr. Thomas moved 2500 to 3000 papers, tied in bundles of about 25 each, with each load. The Thursday afternoon papers, containing the

Page 171

'food section,' are somewhat larger than those published on other afternoons of the week, and May 11 fell on Thursday.

Before he left home to report for work, Thomas remarked to his wife that he was feeling tired and that he had been feeling tired for several days, though he made no other complaint at that time and did not appear to be sick. He left home for work around 9:15 a. m. His wife heard nothing further from him until about 2 p. m. when he called on the telephone saying, 'I never felt worse.'

On this occasion Mr. Thomas did not assist in loading the papers on the truck, but he did drive the truck on the delivery route. He did not assist his helper in unloading any of the papers until arriving at Chamblee, when he took two bundles at the tailgate of the truck and stacked them on the ground, each having approximately 25 papers in it and weighing from 20 to 25 pounds. There was no slipping of the papers or jerking of the bundles as they were moved from the truck or while being handled.

After moving or unloading the two bundles of papers Mr. Thomas stopped, complaining of pain in his chest and arm, and sat down. An ambulance was called and he was sent to the hospital. Dr. Hamff was not immediately available, but his associate, Dr. Spence McClelland, did see and attend Thomas until May 15 when Dr. Hamff had returned from a professional meeting and after that he took over the care and treatment of Thomas.

Upon his admission to the hospital and thereafter tests were made which revealed that Thomas had suffered a coronary occlusion resulting in a myocardial infarction. Under treatment his condition improved, enabling him to return to [106 Ga.App. 443] his home after approximately three weeks. However, after getting back home he suffered another episode and died June 26, 1961.

His widow, on behalf of herself and children, filed with the Workmen's Compensation Board a claim for compensation and asked for a hearing.

At the hearing Dr. McClelland and Dr. Hamff testified as witnesses for the claimant and Dr. Guy H. Adams, who teaches in the field of internal medicine at Emory University, testified as an expert witness for the employer.

On the matter of whether the exertion of Mr. Thomas in driving the truck and in unloading the two bundles of newspapers was a factor in precipitating the coronary occlusion that he suffered on May 11, Dr. McClelland testified: 'Exertion could bring on an attack such as this [but] I don't believe it played any part in this man's attack.' He also testified that 'exertion of certain quality or severity or magnitude could conceivably bring on a myocardial infarction. It has, however, other components which may well be a more precipitating factor insofar as underlying coronary artery disease or incipient myocardial disease where the exertion would be a secondary factor,' and that if a man were doing his regular work which he had done for a number of years the matter of whether exertion would be a factor is in the realm of possibility rather than probability; that exertion of the type of a sudden heavy lift or sudden blow, or exertion of an extreme or unusual nature might precipitate an attack.

Dr. Hamff testified on this point that he could not say in his opinion that the attack which Thomas experienced on May 11 was precipitated by exertion. He did say that 'extreme and unusual exertion possibly sometimes can be a factor,' but further said that an attack such as Thomas experienced may come while the victim is at rest, asleep, or at any time, day or night, and that exertion 'may be purely coincidental and usually is.' As to what 'over exertion' may be, Dr. Hamff asserted that it depends to a great extent upon the individual, for example 'a person who is normally a ditch digger working physically day in and day out, over-exertion for that person

Page 172

could be entirely [106 Ga.App. 444] different from the person who performs sedentary work and who over the week-end does a fair amount of strenuous exertion in his yard.'

Dr. Adams testified that 'in my own opinion a man's usual exertion is never a precipitating factor when he has been accustomed to that,' though he did say that if one is subjected to a sudden jerk or some unusual exertion that might be a factor in precipitating an attack. He related statistics prepared from years of research by Dr. Masters and others ¹ demonstrating that coronary occlusions occur in more than 50 per cent of the cases when the victim is in bed or at rest, and that little, if any, significance can be attached to exertion as a precipitating factor, [106 Ga.App. 445] particularly the exertion associated with the normal and usual activity of the victim.

The director found that the attack which Thomas suffered on May 11 was precipitated by his driving of the truck and lifting of the two bundles of newspapers. Compensation was awarded, and the employer appealed to the Superior Court of DeKalb County, where there was an affirmance of the award under the 'any evidence' rule. The employer here excepts to the judgment of affirmance and contends that there was no competent evidence by which the attack that Thomas suffered could be related to his exertion or that the exertion which he did was a precipitating factor.

Woodruff, Latimer, Savell, Lane & Williams, John M. Williams, Atlanta, for plaintiff in error.

Clyde W. Henley, Leon S. Epstein, Atlanta, for defendant in error.

EBERHARDT, Judge.

Dean Harold F. McNiece, ² writing in the February, 1961 issue of the Journal of Occupational Medicine, asserts: 'There has been far too much generalizing about the heart cases and too little examination into the specific factors which combine to produce the decisions in such cases.' One of the factors is that the compensation board and the courts have dealt with them as if every heart condition were the same, having the same causative and precipitating factors. Heart cases have often been dealt with and decided in an empirical manner, reaching results that can not be sustained

Page 173

by facts established through years of study and research by those who are expert in this scientific area and upon whose judgment we must and do rely for the treatment of the many heart conditions and diseases to which the human body is subject. A casual study of medical [106 Ga.App. 446] literature dealing with the heart and circulatory system must disclose to the reader that all 'heart attacks' are not the same, do not have the same causative or precipitating factors, do not occur under the same conditions, and are not treated in the same manner. ³

This is a fact well known to the cardiologist, but not to the layman having little knowledge in that field of science, so that often what he things he does know is far from the scientific truth of the matter, is inaccurate, undependable and a poor guide or basis upon which to make an award or render a...