Walsh v. U.S. Rubber Co.

• Decision Date: 05 June 1961
• Docket Number: No. 17794,17794
• Citation: 238 S.C. 411,120 S.E.2d 685
• Court: South Carolina Supreme Court
• Parties: Harry O. WALSH, Respondent, v. U. S. RUBBER COMPANY and Winnsboro Millis, Appellants.

Page 685

120 S.E.2d 685

238 S.C. 411

Harry O. WALSH, Respondent, v. U. S. RUBBER COMPANY and Winnsboro Millis, Appellants.

No. 17794.

Supreme Court of South Carolina.

June 5, 1961.

T. K. McDonald, Winnsboro, for appellants.

John A. Martin, Winnsboro, for respondent.

MOSS, Justice.

This is a proceeding for compensation under the Workmen's Compensation Act, section 72-1 et seq., Code of 1952, instituted by Harry O. Walsh, the respondent, against U. S. Rubber Company, employer, and a Salf-Insurer, appellant. It is an appeal from an order of the Circuit Court affirming an award of compensation made by the Industrial Commission.

Harry O. Walsh, fifty-one years of age, had been in the employ of the appellant since February 1956, as a stock room operator. It appears, while engaged in the performance of the duties of his employment, he suffered what one of the physicians described as a posterior myocardial infarction and, thereafter, referred to in the testimony as a heart attack. In this proceeding, the hearing Commissioner found that the respondent 'did sustain an injury by accident arising out of and in the course of his employment, * * * due to over-exertion, strain and tension * * *.' A majority of the Commission affirmed this finding of fact. An appeal from the order of the Commission was heard before the Honorable George T. Gregory, Jr., Resident Judge of the Sixth Circuit, who by his order of August 26, 1960, affirmed the opinion and award of a majority of the Commission. Timely appeal to this Court followed.

The appellant asserts that the respondent did not comply with section 72-301 of the 1952 Code of Laws of South Carolina, with reference to giving written notice to the employer of his alleged accident, within thirty days after the occurrence thereof. The Commission found that the respondent did not given written notice of his accident within thirty days after it occurred, but he was excused from doing so because of his physical incapacity, and that appellant was not prejudiced thereby. This finding was affirmed by the Circuit Judge. The appellant asserts that this finding was erroneous because failure to give the notice was prejudicial to its rights and there was no competent evidence adduced indicating that the respondent was prevented from giving timely notice.

Section 72-301 of the 1952 Code of Laws provides that every injured employee shall immediately on the occurrence of an accident give or cause to be given to the employer a written notice thereof and the employee shall not be entitled to physician's fees nor to compensation prior to the giving of such notice, unless it can be shown that the employer had knowledge of the accident or the party required to give such notice had been prevented from doing so by reason of physical incapacity. The cited section then provides:

'* * * But no compensation shall be payable unless such written notice is given within thirty days after the occurrence of the accident or death, unless reasonable excuse is made to the satisfaction of the Commission for not giving such notice and the Commission is satisfied that the employer has not been prejudiced thereby.'

The respondent testified that at about 11:00 o'clock a. m., on December 29, 1958, while at work, 'I became weak, felt terrible; I don't know, I have never felt like that before in my life.' He said he 'felt like I had stifling smoke here in my chest.' He also testified that his condition continued to get worse. He testified also that he was trying to do his normal work but because of his condition he changed to sewing samples for the rest of the day. He went home at 3:00 o'clock and went to bed. He says that at 2:00 o'clock a. m. on the next morning that he had a headache, was weak, and perspiring. At about 6:30 o'clock on that morning he had his physician called, and thereafter his physician came to see him about 8:30 o'clock, and immediately directed that the respondent be placed in a hospital. The respondent was taken to the Fort Jackson Hospital at Columbia, South Carolina, because he was a veteran and entitled to treatment in the government hospital. He remained as a patient in the hospital for twenty-nine days, and upon his return home he was a bed patient for about two weeks. He testified the first day he was able to leave his home that he went to the office of appellant and there he told Noel Williams, the industrial relations manager of appellant, about the heart attack he had on the last day he worked. He testified also that Williams would not allow him to file a claim for compensation because he was not entitled to such. He says that, thereafter he did, on February 20, 1959, file a formal claim for compensation with the Industrial Commission in Columbia. Williams admitted that the respondent came to see him 'during the first half of February' and he said their denial of liability was based on the fact that the respondent had not reported any accident or injury to the appellant. He also testified that the appellant had been prejudiced by the failure of the respondent to give notice of his claim within thirty days. He says, 'We would have been in a better position to investigate the matter had he told us earlier. Yes, we have been prejudiced, in my opinion.' Upon this testimony the hearing Commissioner found that there was a reasonable excuse for the failure of the respondent to give notice of the accident within the time required by section 72-301 of the Code, and that the employer was not prejudiced by the delay in giving the required notice. There is competent evidence to support the factual findings made by the Commission upon this issue. They are binding upon this Court. Raley v. City of Camden, 222 S.C. 303, 72 S.E.2d 572, and Gray v. Laurens Mill et al., 233 S.C. 421, 105 S.E.2d 409. This exception is overruled.

The next question for determination is whether there is evidence to support the award of the Industrial Commission holding that the respondent had suffered an accident arising out of and in the course of his employment, within the meaning of section 72-14 of the Workmen's Compensation Act.

It is the law of this State that a claimant must establish by the preponderance of the evidence the facts which will entitle him to an award under the Workmen's Compensation Act. Fowler v. Abbott Motor Co. et al., 236 S.C. 226, 113 S.E.2d 737; and Glover v. Columbia Hospital, 236 S.C. 410, 114 S.E.2d 565. We have also held that in workmen's compensation cases the Industrial Commission is the fact-finding body; and this Court and the Circuit Court, both being Appellate Courts in workmen's compensation matters, can only review the facts to determine whether or not there is any competent evidence to support the findings of the fact-finding body. If there is, both this Court and the Circuit Court are without power to pass upon the force and effect of such evidence. When there is a conflict in the evidence, either of different witnesses or of the same witness, the findings of fact of the Industrial Commission, as triers of fact, are conclusive. Steed et al. v. Mount Pleasant Seafood Co. et al., 236 S.C. 253, 113 S.E.2d 827, and the cases therein cited.

We think the evidence in this case is conclusive that the respondent suffered 'a heart attack' with ensuing disability. The question for determination is whether the heart attack suffered by the respondent constitutes a compensable accident within the meaning of section 72-14 of the 1952 Code. The appellant asserts that the respondent, at the time of his disabling heart attack, was engaged in his usual work and was not subjected to any unusual or unexpected strain, or overexertion in the performance of the duties of his employment, or by any unusual and extraordinary conditions thereof. The respondent contends to the contrary.

In the case of Kearse v. South Carolina Wildlife Resource Department, 236 S.C. 540, 115 S.E.2d 183, 185, this Court, in a well considered opinion by Justice Oxner, said:

'* * * A determination of this question necessitates a review of the cases where disability or death of an employee results as a consequence of exertions in the performance of his duties. It is now well settled in this State that a coronary occlusion or thrombosis suffered by an employee constitutes a compensable 'accident' if it is induced by unexpected strain or overexertion in the performance of the duties of his employment or by unusual and extraordinary conditions in the employment. Green v. City of Bennettsville, 197 S.C. 313, 15 S.E. (2d) 334; Willis v. Aiken County, 203 S.C. 96, 26 S.E. (2d) 313; Windham v. City of Florence, 221 S.C. 350, 70 S.E. (2d) 553. This is true even though there is a preexisting pathology which may have been a contributing factor. Sweatt v. Marlboro Cotton Mills, 206 S.C. 476, 34 S.E. (2d) 762; Raley v. City of Camden, 222 S.C. 303, 72 S.E. (2d) 572. And the right to compensation is not affected by the fact that the unusual or excessive strain which precipitates the heart attack occurs while the employee is performing work of the same general type as that in which he is regularly involved. Sweatt v. Marlboro Cotton Mills, supra, 206 S.C. 476, 34 S.E. (2d) 762; Ricker v. Village Management Corporation, 231 S.C. 47, 97 S.E. (2d) 83. The phrase 'unusual or excessive strain' used in many of the cases, is not so limited in its meaning as to include only work of an entirely different character from that customarily done.'

We have also held that if a heart attack results as a consequence of the ordinary exertion that is required in the performance of the duties of the employment in the ordinary and usual manner, and without any outward untoward event, it is not compensable as an accident. The fact that due to a weakened heart condition, the exertion required for the ordinary performance of the work is too great for the particular employee, who undertakes to perform it, does not make it a compensable accident. Sims...