Williams v. State Comp. Comm'r.

• Decision Date: 03 October 1944
• Docket Number: (No. 9600)
• Citation: 127 W.Va. 78
• Court: West Virginia Supreme Court
• Parties: Lillian Williams, Widow, etc. v. State CompensationCommissioner et al.

127 W.Va. 78

Lillian Williams, Widow, etc.

v. State CompensationCommissioner et al.

(No. 9600)

Supreme Court of Appeals of West Virginia.

Submitted September 7, 1944.

Decided October 3, 1944.

1. Evidence-

"A hypothetical question which assumes facts unsupported by the evidence should not be submitted to an expert witness." Blair v. Clark Coal & Coke Co., 107 W. Va. 507.

2. Workmen's Compensation-

Heat prostration arising out of exposure to the natural or reflected rays of the sun, unaccompanied by some special or particular risk or danger, attendant upon the employment, is not compensable.

3. Workmen's Compensation-

An award of compensation to dependents of a decedent will be set aside and compensation denied where such award is based on a showing that the decedent died either of a heart attack or heat prostration, while engaged in working under and around the eaves of a building in nailing tar paper thereto, and the sole evidence of heat, other than that produced by the natural rays of the sun, is that the reflected heat from the roof of the building on which he was working may have affected the upper half of his body. Such a showing fails to meet the test prescribed in Collett v. Compensation Commissioner, 116 W. Va. 213, 179 S. E. 657; Rasmus v. Workmen's Compensation Appeal Board, 117 W. Va. 55, 184 S. E. 250; and Keller v. State Compensation Commissioner, 125 W. Va. 185, 24 S. E. 2d 81, for the allowance of compensation for heat prostration.

Appeal from Workmen's Compensation Appeal Board.

Proceeding under the Workmen's Compensation Act by Lillian Williams, widow, claimant on behalf of herself and a child under the age of 16 years for the death of claimant's husband, opposed by Charles H. Tompkins Company and Mauran-Russell-Crowell & Mullgardt, employers. From an order of the Workmen's Compensation Appeal Board affirming an order of the State Compensation Commissioner granting compensation, the employers appeal.

Reversed.

Brown, Jackson & Knight and W. T. O'Farrell, for appellants.

J. V. Gibson and Cramer W. Gibson, for appellee. Fox, Judge:

Claimant is the widow of Gilbert E. Williams, who died suddenly on September 15, 1942, while in the employ of the Charles H. Tompkins Company and MauranRussell-Crowell & Mullgardt, at the Allegheny Ordnance Plant, in Mineral County, West Virginia, and within six or eight miles of the City of Cumberland, Maryland. Claim is filed not only on behalf of the widow, but in behalf of a child under the age of sixteen years. By an order entered on April 23, 1943, the claim was rejected on the ground that the death of the deceased was not due to an injury received in the course of and resulting from his employment. Timely protest was made and a hearing granted. Evidence was taken on the case at various points in the State, and on November 12, 1943, the Commissioner set aside his former order, awarded compensation to the widow, and held the case open for the birth certificate of the child, which was afterwards furnished. The employer appealed the case to the Compensation Appeal Board, and, on February 5, 1944, that board affirmed the order of the Compensation Commissioner, from which order we granted this appeal on March 13, 1944.

Immediately preceding his death, claimant's decedent, along with a man by the name of Moyers, was working on a scaffold on the side of a building, nailing tar paper to the underneath portion of the drip of the roof. The testimony is somewhat confusing on this point, but it seems rather clear that when standing erect on the scaffold, the upper portions of the men's bodies extended above the eave of the building, and apparently the sun's rays were reflected from the roof. The deceased had complained that morning of not feeling well, and of suffering from heartburn, and probably did not eat lunch that day. Sometime in the afternoon, probably about three-thirty o'clock, while the deceased and Moyers were engaged in their work, the deceased remarked that he could not see anything to nail to and within a minute said, "I am done for", and fell to the scaffold striking his head and face on some part of the scaffold. Moyers caught him by the feet in order to prevent his falling from the scaffold. Blood gushed from his nostrils which may have been occasioned by the fall, and the bridge of his nose was broken. He was taken from the scaffold and died shortly thereafter without regaining consciousness, and his body was then taken to a funeral home in that vicinity, where it was examined about an hour later by Dr. Wilson. Before this, however, he was taken to the relief station on the plant, where it seems that a Dr. Gray there examined him, or had a view of the body. A death certificate, filed in the office of the Clerk of the County Court of Mineral County, is introduced in the record, in which the cause of death is stated to be "chronic obstruction nephritis". No one sponsors this statement. There is considerable evidence in the case tending to dispel the idea that he died from chronic obstruction nephritis, or any kidney ailment, and we think it quite clear that he did not die from such ailment, and that the cause of his death was either heat prostration, or some character of heart trouble.

It may be the parties to this controversy overstress the importance of whether claimant's decedent died from a heart attack or heat prostration. The claim is prosecuted on the theory that it is necessary to show heat prostration as the cause of death. We understand that heat prostration would naturally affect the heart; and if the circumstances were such that it could be said that the situation in which. the deceased was working was different from that to which the general public, as we interpret that phrase, was subjected, and there was some specific and particular event which caused either a heart attack or heat prostration, whatever the technical difference between the two may be, and death or injury resulted therefrom, the case might be one in which compensation should be awarded. The parties here attempt to show, one that decedent died of a heart attack, and the other that he died of heat prostration; and so we consider it proper to discuss the statements of the physicians on those contentions.

As stated above, Dr. Wilson examined the body of the decedent about an hour after his death. On September 16, 1942, he wrote the Hartford Accident & Indemnity Company a letter in which he stated that he had examined the body of the deceased. He describes what he found, referring to blood streaks on both cheeks, which he says had come from his nostrils. He stated that there was a small contusion of the lobe of his right ear, and another just below the right eye, and still another at the right side of the bridge of his nose, and a laceration about a half inch across the bridge of his nose, with the nasal bones fractured at their juncture with the nasal cartilage, and that there were no other marks of importance on the body. He then states, "It is my opinion that this man unquestionably died of a condition that was in no way related to his work, and in no way attributable to an accident. The most probable cause of his death was cardiac disease." It is assumed that this letter was written for its bearing on possible insurance liability for accidental death. Later in the hearing of the case the testimony of Dr. Wilson was taken, and reference is made therein to the letter to the Indemnity Company, from which we have quoted. In this testimony he again states that he examined the body of the deceased; and in answer to a hypothetical question, which included a statement that deceased preceding his death had stated to the man working with him, "I can't find anything to nail to", and about a minute later said, "I am done for" and then fell to the scaffold, and that when he fell there was a slight flow of blood from his mouth. He was then asked what would be indicated from a man dying under such circumstances, to which he answered, "A presumptive evidence of heart condition." On cross-examination he said he had made no post-mortem examination, and arrived at his conclusion from his observations and what he was told. He also said, in effect, that while blood flowing from the mouth and nostrils could come from a blow on the back of the head, this would not happen unless the man had very high blood pressure, and there would be a bursting of blood vessels in the nostrils. In answer to another hypothetical question, which assumed that the day on which deceased died was a hot day, hotter than that ordinarily occurring in that territory, and assuming that the man had never suffered any heart condition prior to that time, or any illness on or about that time, and was working on a scaffold which was only two or three feet below the roof of the building, and subjec- ted to the direct heat rays of the sun, together with the reflected rays which reached more than half his body, and particularly the upper part of the body, would it have been possible for this man to suffer heat prostration at that time, he replied, "Yes, sir." To another question if under these conditions he could not easily have suffered heat prostration, he answered, "Provided he didn't have something like a heart or circulatory condition." This was followed by the further statement that under these conditions "If the man had no heart trouble, the assumption would be heat or exhaustion which produced his death." He stated that he was not altogether positive that the man died of a cardiac affliction; and when his attention was directed to the fact that it appeared from other evidence that on the morning of his death decedent was suffering from indigestion, and that his foreman suggested that he go home, and gave him some bicarbonate of soda, stated that such condition is frequently associated with heart condition, but that it could have been caused by a stomach condition. Further, that as a rule a cardiac condition is not something...