Zamora v. Coffee General Hospital

• Decision Date: 09 April 1982
• Docket Number: No. 63300,63300
• Citation: 290 S.E.2d 192,162 Ga.App. 82
• Parties: ZAMORA v. COFFEE GENERAL HOSPITAL et al.
• Court: Georgia Court of Appeals

Page 192

290 S.E.2d 192

162 Ga.App. 82

ZAMORA v. COFFEE GENERAL HOSPITAL et al.

No. 63300.

Court of Appeals of Georgia.

April 9, 1982.

Lee R. Williams, Douglas, for appellant.

Oliver B. Dickens, Jr., Jack F. Peace, Atlanta, for appellees.

CARLEY, Judge.

Appellant-claimant in this workers' compensation case is the widow of Mario A. Zamora, who was employed by appellee-Coffee General Hospital as a maintenance engineer at the time of his death. Mr. Zamora reported to work at 10:00 a. m. on March 16, 1980. At approximately 12:30 a. m. on March 17, 1980, his body was discovered in the office where he normally performed his duties. Mr. Zamora had been strangled and his death was listed as a homicide. While Zamora had been robbed, the evidence did not show that anything belonging to the appellee had been taken. There was no evidence that anyone has been charged with Zamora's murder.

Appellant filed a claim for workers' compensation and a hearing was conducted. The administrative law judge found that "[t]he evidence affords no reasonable explanation of why [Mr. Zamora] was murdered." The administrative law judge made an award to appellant, relying upon the "unrebutted" presumption that an employee's death arose "out of and in the course of his employment" if he is found dead in a place where he may reasonably be expected to be in the performance of his employment and the death is unexplained. See generally General Acc. Fire & Life Ins. Co. v. Sturgis, 136 Ga.App. 260, 221 S.E.2d 51 (1975).

The Full Board conducted a review of the award and, after a de novo consideration of all the evidence and with one dissent, made the findings and conclusions of the administrative law judge its findings and conclusions "except as inconsistent with the following: ... [Appellees] have not rebutted the presumption that [Mr. Zamora's] death arose out of and in the course of his employment because they have failed to establish a noncompensable reason for his death. International Paper Company v. Gilbourn, 144 Ga.App. 175, 240 S.E.2d 722 (1977)."

Appellees appealed this award to the superior court. After conducting a hearing, the superior court entered an order reciting the following undisputed facts: "3. Zamora, not the hospital, was robbed by the attacker. The only items taken were Zamora's wallet, his motorcycle helmet, his keys, his .38 caliber pistol and his motorcycle. The motorcycle was subsequently recovered. 4. The attacker did not take any hospital property. Although valuable hospital property was present at the scene of the crime. 5. There was circumstantial evidence that Zamora feared for his life as evidenced by the fact that he had two guns, a .25 automatic pistol strapped to his leg and a .38 handgun that he kept. 6. There was evidence that Zamora was involved in a love affair with a married woman. Zamora's domestic difficulties had resulted in four prior marriages. He had served as an officer in General [Batista's] army in Cuba. 7. Zamora's position at the hospital exposed him to no personal danger. He was a maintenance man who was required to perform no security functions at the hospital. He was not required by his employment to carry weapons on his person. 8. There was no evidence that Coffee General Hospital was licensed at the time of Zamora's death to have dangerous or psychotic patients. There was no psychiatric patients in the hospital at the time. 9. Upon consideration of all the circumstances, this Court finds there was no causal connection between conditions under which work was required to be performed and the decedent's death." Based upon the foregoing, the superior court reversed and remanded the case to the Full Board for the following reasons: "1. There was evidence, even though circumstantial, that Zamora's death resulted from private causes other than employment-related. Accordingly, a finding that the evidence afforded no reasonable explanation of privately motivated murder was error. Miller v. Travelers Ins. Co., 111 Ga.App. 245, 248, 141 S.E.2d 223 (1965). 2. The presumption of compensability for unexplained death does not apply where there is any evidence, even circumstantial evidence, to explain the death. Hartford Accident & Indem. Co. v. Trigg, 144 Ga.App. 74, 240 S.E.2d 725 (1977); Odom v. Transamerica Ins. Group, 148 Ga.App. 156, 251 S.E.2d 48 (1978). Because there was circumstantial evidence to explain this death the presumption did not arise in this case. Accordingly, the full board's use of the presumption contravened the rules of evidence and should be reversed. Code Ann. § 114-707(e)(1). 3. On remand the full board should examine all the evidence on the basis of the present record. There is circumstantial evidence that the death of Mr. Zamora was privately motivated. If the same evidence is again presented to the board the presumption of compensability in unexplained deaths shall not arise. Hartford Accident & Indem. Co. v. Trigg, supra, 144 Ga.App. at 76, 240 S.E.2d 725; Odom v. Transamerica, supra, 148 Ga.App. at 157, 251 S.E.2d 48."

Pursuant to Code Ann. § 6-701.1(a)(1) appellant applied to this Court for a discretionary appeal from the superior court's order. Appellant's application was granted in order that we might once again address an issue which, in the words of Odom, 148 Ga.App. 156, 251 S.E.2d 48, supra, "[t]his court has completely confused..."

" 'The burden of proof in a [workers'] compensation case is upon the claimant to show that the employee suffered an accidental injury which arose out of and in the course of his employment. [Cits.]' [Cit.] The [claimant] is aided in his burden by the well-established presumption ... that when an employee is found dead in a place where he might reasonably have been expected to be in the performance of his duties, it is presumed that the death arose out of his employment. [Cits.]' [Cit.]" International Paper Co. v. Gilbourn, 144 Ga.App. 175, 176, 240 S.E.2d 722, supra. In Hartford Accident & Indem. Co. v. Trigg, 144 Ga.App. at 76, 240 S.E.2d 725, supra, it was held that this presumption "arises only where death is unexplained. [Cit.]" Subsequently, in Odom, 148 Ga.App. at 157, 251 S.E.2d 48, supra, after noting the rather tortured appellate history of the presumption, Trigg was interpreted as having "the effect sub silentio of overruling conflicting cases." "[T]his court is now bound by and ... constrained to follow [Trigg, supra] which held that the presumption arises only where the death is unexplained." Odom, 148 Ga.App. at 156-157, 251 S.E.2d 48, supra.

We note at the outset that neither Trigg nor Odom stand for the proposition that the presumption arises only in a case in which the immediate cause of death is unexplained. If that were the rule, in view of modern forensic medical techniques, there would be no viability whatsoever to the "well established" presumption. This would be true because there are very few cases in which the immediate cause of death cannot be determined to at least some degree of medical and legal exactitude. What Trigg and Odom do establish is that the presumption arises only where the death itself is unexplained. To take the instant case as but one example, the immediate cause of Mr. Zamora's death is not "unexplained" because it is clear beyond dispute that he was strangled. But this explanation of the immediate cause of Mr. Zamora's death would not, in our opinion, be a sufficient "explanation" of his death to prevent from arising a presumption, the justification for which "is that 'when the death itself has removed the only possible witness who could prove causal connection, fairness to the dependents suggests some softening of the rule requiring claimant to provide affirmative proof of each requisite element of compensability.' [Cit.]" General Accident Fire & Life Ins. Co. v. Sturgis, 136 Ga.App. 260, 264, 221 S.E.2d 51, supra. Mr. Zamora's death could be the result of homicide and yet be compensable under our workers' compensation statute. " 'It is now well settled that the fact that the injury is the result of the wilful or criminal assault of a third person does not prevent the injury from being accidental within the meaning of the [Workers'] Compensation Act.' [Cit.]" Hartford Accident & Indem. Co. v. Cox, 101 Ga.App. 789, 793, 115 S.E.2d 452 (1960). See also Pinkerton Nat. Detective Agency v. Walker, 157 Ga. 548, 122 S.E. 202 (1923).

As noted above, the presumption is relied upon where applicable to establish that the death "arose out of the employment" of the deceased. "The...