U.S. Steel Corp. v. Dykes

• Decision Date: 20 November 1958
• Docket Number: No. 29733,29733
• Citation: 238 Ind. 599,154 N.E.2d 111
• Parties: UNITED STATES STEEL CORPORATION, a Corporation, Appellant, v. Bessie DYKES, Appellee.
• Court: Indiana Supreme Court

Page 111

154 N.E.2d 111

238 Ind. 599

UNITED STATES STEEL CORPORATION, a Corporation, Appellant, v. Bessie DYKES, Appellee.

No. 29733.

Supreme Court of Indiana.

Nov. 20, 1958.

Stevenson, Conaghen, Velde & Hackbert, Chicago, Ill., White, Raub & Forrey, Indianapolis, Harlan L. Hackbert, Chicago, Ill., and George C. Forrey, III, Indianapolis, of counsel, for appellant.

John M. Ruberto, Gary, for appellee.

BOBBITT, Chief Justice.

This case comes to us on petition to transfer from the Appellate Court under Acts 1933, ch. 151, § 1, p. 800, being § 4-215, Burns' 1946 Replacement. See United States Steel Corporation v. Dykes, 1958, 148 N.E.2d 844, for opinion of the Appellate Court.

This is an appeal from an award of the Industrial Board (one member dissenting) awarding appellee full death benefits under the Indiana Workmen's Compensation Act, Acts 1929, ch. 172, § 1, p. 536, being § 40-1201 et seq., Burns' 1952 Replacement.

Appellee's deceased husband was employed as a 'grinder' in appellant's steel mill in Gary, Indiana. During working hours, on September 7, 1954, he suffered a fatal heart attack.

The Board, among other things, found that on the 7th day of September, 1954, one John Dykes, plaintiff's decedent, was in the employ of the defendant, at an average weekly wage of $86.50; that on said date he sustained personal injury, by reason of an accident, arising out of and in the course of his employment with the defendant; that the said accidental injury consisted of exertion, which precipitated a coronary occlusion, resulting in his death on said date.

The sole error assigned is that the award of the Industrial Board is contrary to law.

An examination of the record to ascertain whether the evidence is sufficient to sustain the award discloses the following: The decedent had been employed on the same job as a 'grinder' for 'eight or nine' years. He was about fifty-five years of age, was well developed physically, and weighed 160 pounds at the time of his death.

The work of a grinder consists of taking defects such as slivers, seams, cracks and faults out of steel. This is done by a machine known as a grinder and shaped like a rolling pin. It is approximately 22 1/2 inches long with an emery wheel, 6 to 6 1/2 inches in diameter. The weight of the grinder was estimated by various witnesses at 12 to 35 pounds, and it is powered by electric motors.

The operator is required to stand while performing his duties. The steel bars upon which he works are placed on a supporting rack about waist high to the operator. In order to grind the steel he is required to hold the grinder in such a manner that the emery wheel is held against the steel bar with pressure sufficient to grind out the defects. This operation causes some vibration in the operator's arms and the upper part of his body. As he moves from one defect to another the operator must lift the grinder each time the height of about two inches. The job is heavy physical labor which requires lifting, standing and walking during the regular work period.

On the morning of the decedent's fatal heart attack he appeared jolly and gave no indication of any mental or physical disturbance.

He worked until about 10:45, when he left his job and went to the 'stock shearer shanty.' About five or ten minutes later another worker came over to the inspector who had relieved the decedent and told him that Dykes (the decedent) was sick and lying on the floor in Bay 2. Another worker who was stationed about 35 or 40 feet from the decedent testified, as a witness for the petitioner-appellee, that he observed the decedent returning from the water fountain and when he got about halfway across Bay 2 he was staggering and 'had both hands up against his chest.' Seeing that he was 'going to fall' the worker ran to him and eased him down to the floor. He then called for the ambulance but Dykes was dead when it arrived. The place where decedent fell in Bay 2 was about 75 feet from his station where he worked.

On the morning when decedent suffered the fatal heart attack he was on his regular job doing the same type of work in the same manner as he had been doing for more than eight years. However, the undisputed evidence is that the work he was doing on that particular day was 'slowed' and less than usual.

Dr. Jerome M. Korn, Coroner's physician, who performed a post-mortem on decedent, testified, as a witness for petitioner-appellee, on direct examination, in pertinent part, as follows:

'Q. And what did you observe about the coronary vessels? A. They were the site of the disease--arteriosclerosis.

'Q. A-ha; and, what else did you observe about that with reference to being narrow or otherwise? A. Markedly thickened. The lumen was markedly narrowed; there were plaques of atheromatosis--tissue which is small fatty tissue.

'Q. What are plaques? A. Plaques are made up of fatty material deposited in the lining of the blood vessels, that are at the site of such disease.

'Q. And from your observation of the coronary vessel, which you describe as being diseased, could you tell they were of long standing? A. Yes, evidentally they were.

'Q. And when you observed this sclerotic condition tell us what you saw? A. The presence of sclerosis in the blood vessels indicating the presence of those plaques--the loss of elasticity, and narrowing of the channel through which the blood flows.'

On cross-examination Dr. Korn testified, in pertinent part, as follows:

'Q. In which coronary vessels did you find arteriosclerosis? A. The sclerosis was marked in both vessels, and is higher in the posterior coronary vessel, and I usually listed which was, but I did not here. I can't recall it but both were quite diseased, but usually we can tell which has been involved.

'Q. Do you recall which was involved here? A. They both were quite sclerotic--described as such.

'Q. Did you find these plaques in both coronary arteries? A. And in the aorta also.

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'Q. Now, you say you observed no blood clot? A. Correct.

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'Q. Did you find any evidence in his heart of any plaque had broken off from the coronary wall? A. I did not.

'Q. Did you see any plaques that were loosened in a way that would cause you to believe they might have been sucked or swung out and invaded the artery? A. Some were quite prominent--that might have occured.

'Q. You mean the deposit that had created those plaques had been there over a considerable period of time, do you not? A. Yes, sir.

'Q. Did you find any evidence of sudden damage or change in the heart structure? A. I did not.

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'Q. Was your examination confined exclusively to determine that there was an infraction? A. Yes, sir.

'Q. Did you find one? A. I did not.

'Q. Any scars on the heart? A Yes.

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'Q. What, in your opinion, caused the death? A. Coronary occlusion, myocardium failure, coronary heart disease. My anatomical diagnosis was acute coronary condition.

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'Q. What you found in your post mortem examination was a generalized narrowing of the coronary vessels? A. Thickening and narrowing and the sclerotic condition, that would be fair to say.

'Q. That condition was one developing over a long period of time? A. Correct.

'Q. That is common in the normal progress of that condition and ultimately result in the man's heart failure and death--immediate death? A. Yes, sir.

'Q. And, that's true in your experience and medical knowledge, Doctor, irrespective of the activity in which the man is engaged at the time the fatal attack occurs? A. What do you mean?

'Q. Let me put it this way: Without regard to the patients you may have performed post mortem examinations on--you do know that as a matter of your medical knowledge? A. Yes.

'Q. Then, such condition as you found on this post mortem strikes individuals at all hours of the day? A. That's right.

'Q. And night. And occurs regardless of the activity in which they are engaged? A. Correct.'

Based upon a set of facts, as stated in a hypothetical question, and propounded by the attorney for appellee (most of this question was withdrawn), Dr. George Lewis, a witness for plaintiff-appellee, testified on direct examination, in part, as follows:

'A. * * * On the day of his death the vessel may not have carried enough blood and when he worked this work put a load on a diseased heart which the heart could not carry and the heart just stopped beating, couldn't get enough or sufficient nutrition and oxygen. My opinion is that he died of acute coronary insufficiency which was aggravated and precipitated by his work operation. Is that what you want?'

On cross-examination Dr. Lewis testified, in pertinent part, as follows:

'Q. Doctor, it's your theory that the exertion of his work placed a demand on his heart that the blood supply to the heart was not capable to meet? A. That's right.

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'Q. Yes; I think you said on the direct examination that this man's condition after autopsy was a pre-existing heart disease for considerable time? A. Yes.

'Q. And it will be normally expected that condition will progress ultimately where the heart supply is insufficient and the man suffers a severe or fatal coronary attack? A. Yes, sir.

'Q. I think you say it was your opinion this man's heart condition notwithstanding the fact that it was diseased, may have been supplying his heart with enough blood to carry on until that day, is that right? A. Yes, sir.

'Q. And on that day when he approached the danger point or point of progression, to the point of insufficiency, then whatever activity that man is engaged in on that day--which proves to be more than his heart will supply, enough blood, it is going to result in the onset of a coronary attack, isn't it? A. Yes, sir.

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'Q. So it's not just a question of having been engaged in exertion to a greater or lesser degree, but a question of how far the deterioration of the heart has progressed? A. That's one factor. The other is what work he did...