United States Cas. Co. v. Richardson

• Decision Date: 12 June 1947
• Docket Number: 31606.
• Parties: UNITED STATES CASUALTY CO. et al. v. RICHARDSON.
• Court: Georgia Court of Appeals

43 S.E.2d 793

75 Ga.App. 496

UNITED STATES CASUALTY CO. et al. v. RICHARDSON.

No. 31606.

Court of Appeals of Georgia, Division No. 2.

June 12, 1947

Judgment Adhered to July 23, 1947.

Syllabus by the Court.

1. An epileptoid condition is on the same footing as arteriosclerosis and the like. Where, as here, the evidence shows excessive exertion peculiar to the employment and peculiar to the employee, brings about an epileptic attack resulting in injury to an employee, the award will be considered to be founded on sufficient competent testimony.

2. Where an employee is afflicted with an epileptoid condition and is seized with an epileptic attack while in the course of his employment, which attack causes him to fall against a sharp edge of a table, producing an injury when striking the table, such is, within the meaning of the Workmen's Compensation Act, a compensable accident arising out of and in the course of the employment. This is true regardless of whether or not the epileptic attack was precipitated or induced by excessive exertion peculiar to the ailment of the employee.

On January 19, 1946, Robert Griffith Richardson, the claimant in this case, hereinafter called the claimant, was employed as a salesman of the Belk-Gallant Company hereinafter called the employer. The claimant's duties consisted of selling men's apparel, which general duty encompassed the additional duties of making trips up and down flights of stairs to the repair and tailoring departments and to the basement to get clothes from the so-called 'lay-away department.' The claimant began working on the day of the accident around 8:30 a. m., and the accident occurred about 6 o'clock p. m. of that day. It was on Saturday, a busy day in the store. No one saw the claimant at the time of the accident. He was last seen approaching the men's room. Several of the employees heard two bumps in quick succession. They immediately approached the claimant and found him on the floor near a table with a sharp corner. This table was used as a part of the equipment in the establishment. The claimant was then unconscious. Blood was flowing freely from a wound on the head. He was carried to the hospital and treated for a severe fracture of the skull. From the injuries received he is indisputably totally and permanently injured. It is undisputed that the claimant had an epileptoid condition which had previously caused epileptic attacks. The employer knew of the condition of the claimant. The claimant had had these attacks in the store on previous occasions, but with little consequences.

The single Director made an award in favor of the claimant. The full Board approved the Award. The case was then appealed to the superior court and the award was affirmed there. The case comes here by the employer and insurance carrier, for review.

C Baxter Jones, Jr., and Powell, Goldstein, Frazer & Murphy, all of Atlanta, and J. R. Terrell, Jr., of LaGrange, for plaintiffs in error.

Wyatt & Morgan, of LaGrange, for defendant in error.

GARDNER Judge.

1. It is admitted by the employer that the accident occurred in the course of the employment, but it is contended that it is not compensable for the reason that it did not grow out of the employment. To state it differently, it is contended by the employer that the claimant received his injury from the epileptoid condition or attack and that there is no evidence that the accident arose out of the employment. It is contended that there is no causal connection between the accident and the employment. This contention is based on the principle that the evidence fails to show that the epileptic attack was caused by exertion peculiar to the employment proximate enough in time to be a contributing proximate cause of the attack. It is contended in this connection by the employer that the only competent evidence of excessive exertion was stair climbing. The physicians who testified in the case were asked a hypothetical question based upon undisputed evidence. This hypothetical question was in substance: 'If a man works all day as a salesman, that is, from 8:30 A.M. until 6:30 P.M., waiting on customers, standing on his feet all day, making several trips up flights of stairs and trips down stairs to the basement, and this man was subject to epileptoid attacks, would it be probable that such exertion and strain would be likely to bring on an attack?' All of the physicians answered in the affirmative. On cross-examination, the physicians further testified that one suffering from an epileptoid condition might have an epileptic attack without any excessive exertion. And also that excessive exertion would not necessarily bring on, in every instance, an epileptic attack. We do not think that the argument of counsel for the employer to the effect that the only evidence of excessive exertion was stair climbing is correct. It is true that there is no evidence as to just what time of the day the claimant climbed the stairs nor how long after the last climbing the physical seizure occurred. But in dealing with the hypothetical question propounded to the physicians, it was the duty of the Director to consider the whole of the evidence embraced within the question. From this viewpoint, we are inclined to the view that the Director was authorized to find that the epileptic attack was brought on by the excessive exertion of the claimant peculiar to his condition and peculiar to the employment, and that therefore the accident arose out of the employment. The cases in this State have established little, if any, limitation on the type of causes which may be concurrent with the contributing cause of exertion. It is established that an accident, under the Act, may result from the contributing proximate cause of exertion in the course of employment, plus such other contributing proximate causes as: (a) an act of God, being heart of the sun. Fidelity & Casualty Co. v. Adams, 70 Ga.App. 297, 28 S.E.2d 79. Or (b) a weakened condition of the employee being caused by previous self-medication. Bibb Manufacturing Company v. Alford, 51 Ga.App. 237, 179 S.E. 912; (c) a diseased condition of the employee caused by arteriosclerosis or high blood pressure. Griggs v. Lumbermen's Mutual Casualty Company, 61 Ga.App. 448, 6 S.E.2d 180; Lumbermen's Casualty Company v. Griggs, 190 Ga. 277, 9 S.E.2d 84; Williams v. Maryland Casualty Company, 67 Ga.App. 649, 21 S.E.2d 478. There would seem to be no difference between an epileptoid condition of an employee and one suffering from arteriosclerosis.

Counsel for the employer earnestly argue that the evidence in the instant case fails to show that any immediate excessive physical exertion was the contributing proximate cause of the injury, and in support of this contention cite Fidelity & Casualty Co. v. Adams, supra, and Bibb Manufacturing Company v. Alford, supra; and Griggs v. Lumbermen's Casualty Company, supra. We do not understand that the decisions in these cases base the last or immediate act of the claimant as being indictive of the excessive exertion, but to the contrary, the whole of the activities specified in each of the cases was evidentiary of the excessive exertion. So also must we take into consideration that the approximately 10 hours exertion of the claimant in standing on his feet, making sales and going up and down stairs, and other acts and circumstances embraced within the scope of the hypothetical question, was exertion and not any particular act. In the Workmen's Compensation Act we do not find the word 'immediately' used except in Code, section 114-412 dealing with hernia. Under that section in the fourth requisite for a compensatory hernia resulting from accident, the law provides that the hernia resulting from accident, must follow the accident immediately. For a discussion of the word 'immediate' as used in this section, see Liberty Mutual Insurance Company v. Blackshear, 197 Ga. 334, 28 S.E.2d 860. From this viewpoint we think the award is founded upon sufficient evidence to sustain it.

2. We come next to consider whether or not the award is legally sustainable irrespective of whether excessive exertion brought about the epileptic attack. The seizure of the claimant caused him to fall on the sharp corner of the table which caused the skull fracture and the injury to his brain. This table with a sharp corner was a hazard of the employment to which the claimant was subjected. Horowitz on Workmen's Compensation, second printing, 1946, p. 145 deals clearly with the question before us. 'Where the cause of the fall is personal to the worker (as a non-industrial heart attack, dizzy or epileptic spells, or any idiopathic condition) the fact that the floor is of rough cement instead of wood and hence is more dangerous, is no ground for an award in Mass.' Citing Cinmino's Case, 1925, 251 Mass. 158, 146 N.E. 245, 37 A.L.R. 769. But awards are upheld there and in most States, if the fall is on a stairway or into a machine or against anything except the bare floor, and especially if the fall is from a height, as the risk of injury is increased, or is a 'special danger of the employment.' The author cites a number of decisions to sustain his statement. One of the last cases under the Workmen's Compensation Act which has come to our attention analogous to the facts in the instant case, is that of Rewis v. New York Life Insurance Company, 226 N.C. 325, 38 S.E.2d 97, 98, decided May 8, 1947. In this North Carolina case an employee was on the 11th floor, went into a washroom where he had an attack of faintness from 'Idiopathic ulcerative colitis, which had plagued him for several years.' In an effort to get some fresh air he went to an open window, from there he fell to his death on a roof of an adjoining building. The court ...