BIRDSONG, Judge, dissenting.

This is another in the long line of difficult cases concerning the compensability under the Workers' Compensation Act ("Act") of injuries resulting from heart disease. The Workers' Compensation Board ("Board") found the claimant's injury, a quintuple coronary artery bypass, to be compensable, and this decision was affirmed by the superior court on appeal. This majority has affirmed that judgment by applying the "any evidence" rule and by distinguishing Southwire Co. v. Cato, 250 Ga. 895 ( 302 S.E.2d 91). In my view, the award must be reversed, and I respectfully dissent from the majority's affirmance.

Because I disagree with the majority's analysis of this case in view of its facts and existing precedent, a more detailed review of the evidence relevant to this appeal is in order. The claimant began his latest period of employment with Zippy Mart in 1974. From approximately 1979 to July, 1981, he was employed as a supervisor. In this capacity he had supervisory duties over several Zippy Mart stores in south Georgia. He traveled to the various stores two to four times a week trouble-shooting for general problems, preparing the stores for inspection, bookkeeping, hiring personnel, and filling in for absentee employees where necessary. Both the claimant and his wife testified that he usually worked a six-day week and frequently worked in excess of ten hours each day. His wife testified that "his personality changed, he become [sic] short-tempered, worried, and just altogether [a] different person" after he was promoted to his supervisory position.

Sometime prior to December, 1980, the claimant began to experience "pains in my chest and nervousness." He was hospitalized in December, 1980, for evaluation of his condition. On August 7, 1981, during a subsequent hospitalization, he underwent a quintuple coronary artery bypass. He continued to work until his hospitalization for the operation. He was 38 years old at the time of the operation.

The claimant's medical history contained in the record reveals a 20-year smoking history, obesity, hypertension, an extremely high triglyceride level, a high cholesterol level, and angina pectoris. The bypass surgery revealed no evidence of previous myocardial infarction, nor is there any other evidence in the record of previous heart attack or failure. Atherosclerosis, which the undisputed medical testimony revealed is a degenerative disease of the coronary arteries involving the depositing of material inside the arteries, was the medical condition giving rise to the need for the claimant's bypass surgery.

Evidence was taken from two physicians regarding the alleged connection between the claimant's employment and his heart disease and subsequent bypass operation. Appellants' medical expert testified that he was of the opinion that the claimant's employment did not cause his atherosclerosis, although he conceded that stress could contribute over a period of time to the development of atherosclerosis. By letter, the claimant's surgeon submitted the following statement on the issue of causation: "Stress is undoubtedly one of the factors contributing to coronary artery disease. Coronary artery disease is ubiquitous and other risk factors such as smoking, high cholesterol, hypertension, family history, etc. are common denominators and are more objectively assessed. Since the identifiable risk factors can be quantitated to a considerable extent and since [the claimant's] triglycerides were markedly elevated in excess of 3,000 (this is the highest level I have ever seen) and because he was a smoker and hypertensive, I feel that these risk factors are primarily responsible for his coronary disease. This is not to minimize the effect of occupational stress to which [the claimant] was subjected but I am merely stating that it is very difficult to quantitate. Specifically in answer to your question I can state that [the claimant's] working conditions could have been a precipitating cause of his developing the condition which necessitated coronary bypass surgery and disability. This statement however should be viewed in context with the discussion above." (Emphasis supplied.) There is no additional direct or opinion evidence on the causation issue.

The Board, adopting the award of the administrative law judge, concluded that the "pressure and stress of claimant's employment duties precipitated and caused claimant's coronary artery disease to develop which necessitated the coronary bypass. Accordingly, claimant, on August 7, 1981 [the date of the bypass operation], sustained an accidental injury which arose out of and in the course of his employment with his employer." (Emphasis supplied.) The final award of the Board, in a 2-1 decision, was rendered prior to the Supreme Court's opinion in Southwire Co. v. Cato, supra. Appellant's primary contention on appeal is that the Board, in reaching its conclusion as to causation, necessarily relied upon the "natural inference" that Southwire Co. has found to be unavailable in cases in which "the symptoms of the heart attack did not occur until the claimant had been home several hours." Id. p. 898. The claimant contends that Southwire Co. is inapposite for two reasons: (1) the Board relied upon medical evidence and not upon the "natural inference through human experience"; (2) there was evidence in this case of symptoms of heart disease that occurred on the job. In the latter respect, the claimant testified that he had a dizzy spell with sharp pains in his chest while having lunch with his supervisor on an unspecified date.

(1) In my opinion, the majority has improperly analyzed this case in several key respects. First, it is critical to note that the "accidental injury" found by the Board occurred on August 7, 1981, when the claimant underwent coronary bypass surgery. There is no evidence in the record that the claimant sustained an on-the-job heart attack or heart failure. Thus, the Board correctly concluded that the disabling event invoking the Act was the bypass surgery and not the heart disease leading to the surgery. This seems to be ignored by the majority. The alleged compensable event in this case was the surgery and alleged resulting disability, which makes the surgery the equivalent of a heart attack. The heart "injury" in this case occurred off the job, and under Southwire Co., supra, the "natural inference" was not available to assist the Board in establishing causation.

This conclusion is not changed by the fact that the claimant may have suffered from symptoms of heart disease while working. The Supreme Court held in Southwire Co., supra, p. 898: "[T]he `natural inference' is not available where . . . the symptoms of the heart attack did not occur until the claimant had been home several hours." As I interpret this holding, the Supreme Court laid down the rule that unless there is evidence that a heart attack, heart failure, or other heart-related "injury" (OCGA § 34-9-1 (4)) occurred on the job, or at least in close proximity in time to the claimant's employment, the "natural inference" is not available to the Board on the issue of causation. This rule is not changed by the mere fact that the claimant suffers from symptoms of heart disease, such as angina, while at work. It should be noted in this respect that the claimant in Southwire Co. informed his wife that he was not feeling well shortly after he arrived home after work and five hours prior to his heart attack. I believe the Supreme Court used the phrase "symptoms of the heart attack" to permit a claimant to argue the "natural inference" whenever there is symptomatic evidence of an on-the-job heart failure even though there may be a conflict in the evidence as to the precise time the heart failure actually occurs, or whenever the process of heart failure begins at work but is not completed until after the claimant has left work. See, e.g., Carter v. Kansas City Fire c. Ins. Co., 138 Ga. App. 601 ( 226 S.E.2d 755). Thus, if the Board concludes in a given case, based upon symptoms occurring on the job, that the heart attack process began while the employee was at work, the Board properly may use the "natural inference" arising from the particular circumstances of that case.

It is undisputed by the parties and the Board that the disabling, "accidental" injury in this case was the claimant's coronary bypass surgery occurring while he was away from work. There is no evidence that the symptoms experienced while at lunch with his supervisor were symptoms of heart failure or any other "accidental injury." Southwire Co. clearly limits the use of the "natural inference" to those situations in which an employee sustains symptoms of a heart attack or heart failure, whether induced by heart disease or otherwise, while working for his employer. The facts of this case support the application of the "natural inference" even less than the facts in Southwire. Therefore, I must reject the majority's conclusion that Southwire Co. is inapplicable to this case. The "natural inference" should not be available to the Board in this case.

(2) I must also reject the majority's conclusion that the "natural inference" was not utilized by the Board in this case. The Board, which adopted the opinion of the administrative law judge, did not recite the medical testimony in its order. Rather, the Board outlined appellant's job duties and concluded that the "pressure and stress of claimant's employment duties precipitated and caused claimant's coronary artery disease to develop which necessitated the coronary bypass." As noted in Southwire Co., supra, p. 897, the "natural inference" rule means that "`the evidence must show the work engaged in by the employee to have been sufficiently strenuous or of such a nature that, combined with the other facts of the case, it raises a natural inference through human experience that the exertion [or stress] contributed toward the precipitation of the attack. . . .'" Hoffman v. Nat. Surety Corp., 91 Ga. App. 414 ( 85 S.E.2d 784). Without citing any supportive medical testimony, the Board evidently relied upon the "natural inference" when it merely recited claimant's employment duties and then concluded that his bypass surgery was necessitated by heart disease which was caused by his employment. As the tenor of the award indicates that the Board relied on an erroneous legal theory, the award should not stand. Beachamp v. Aetna Cas. c. Co., 112 Ga. App. 417, 418 ( 145 S.E.2d 605).

It appears that the majority's conclusion that the "natural inference" is "not reached or relied upon" in this case arises from a misunderstanding of the nature and purpose of the "natural inference." The "natural inference" rule merely allows the fact finder in heart injury cases to infer causation from the circumstances surrounding the injury and the claimant's employment. As will be discussed below, without the ability to draw that inference, the evidence relating to the circumstances of employment and the nature of the injury has no probative value to the fact finder on the issue of causation. The majority concludes that the "record discloses direct evidence of a stressful job." This evidence, which is circumstantial as to the issue of causation, obviously has no bearing whatever on causation unless the Board is allowed to infer, through human experience, a causal connection between the job stress and the heart injury. Thus, the majority's own analysis of this case provides an excellent example of the "natural inference" at work.

(3) By improperly sanctioning the use of the "natural inference," the majority opinion masks the crucial issue presented by this case, which is whether the award is supported by any competent evidence. OCGA § 34-9-1 (4) provides that "`[i]njury' and `personal injury' [shall not] . . . include heart disease, heart attack, the failure or occlusion of any of the coronary blood vessels, or thrombosis unless it is shown by a preponderance of competent and credible evidence that any of such conditions were attributable to the performance of the usual work of employment." (Emphasis supplied.) Thus, the employee has the burden of producing some "competent and credible evidence" from which the Board can conclude by a preponderance of the evidence that the heart disease and resulting "injury" is causally related to the employment. The only evidence in this case, aside from the "natural inference from human experience" derived from the circumstances surrounding the claimant's employment, which purportedly supports a finding of the required causal connection is the above-quoted medical testimony. Thus, in light of the fact that Southwire Co. has removed the "natural inference" from this case, we are faced with the question of whether a physician's testimony, standing alone, that the claimant's "working conditions could have been a precipitating cause of his developing the [heart] condition" constitutes "competent and credible evidence" on the causation issue. If this testimony alone is insufficient to support an award, then the Board's award of compensability should be reversed due to the lack of any supportive evidence.

In City Council of Augusta v. Williams, 137 Ga. App. 177, 178 ( 223 S.E.2d 227), this court stated: "The physician's testimony that claimant's work-connected emotional stress might or could have contributed to his injury is sufficient to support the board's finding that claimant's injury arose out of and in the course of employment. Sears, Roebuck Co. v. Poole, 112 Ga. App. 527 [, 529 (145 S.E.2d 615)]; Burson v. Howell, 112 Ga. App. 675 [, 677] (145 S.E.2d 718); J. D. Jewell, Inc. v. Peck, 116 Ga. App. 405 ( 157 S.E.2d 806)." See also Union Carbide Corp. v. Coffman, 158 Ga. App. 360, 361 ( 280 S.E.2d 140); American Motorist Ins. Co. v. Corbett, 144 Ga. App. 845 (1) ( 242 S.E.2d 748). Appellee contends on the basis of the above statement that the record in this case contains sufficient evidence to support an award. Unrecognized by both the majority and appellee is the fact that City Council of Augusta, Sears, Roebuck Co., Burson, and J. D. Jewell, unlike the present case, all involved heart attacks that occurred while the employee was at work and all involved either specific exertion or, in the case of City Council of Augusta, considerable job-related stress which precipitated a heart attack while at work. See also Carter, supra; Cox v. Employers Mut. Liab. Ins. Co., 122 Ga. App. 659 ( 178 S.E.2d 287). Therefore, the holdings of these cases are not based on the proposition that medical opinion testimony to the effect that the employment could possibly have contributed to the employee's heart disease is alone sufficient to support an award of compensation as the "natural inference" was clearly available. To the contrary, the correct evidentiary rule as to causation in such cases was clearly stated by this court in McDaniel v. Employers Mut. Liability Ins. Co., 104 Ga. App. 340, 343-344 ( 121 S.E.2d 801): "Inasmuch as [in this type of case] there is not such a `natural inference through human experience' raised to indicate that the exertion [or job-related stress] contributed to the [heart] injury, therefore it becomes solely a medical question which in this case could be answered only by competent medical testimony based at least on reasonable probability . . . . Cases in which evidence in addition to `could' or `probably could,' etc., [opinion] testimony, authorizes an award of compensation are distinguishable by the fact of the additional testimony." (Emphasis supplied.) See also Georgia Cas. c. Co. v. Jernigan, 166 Ga. App. 872 (5) ( 305 S.E.2d 611); Maczko v. Employers Mut. Liability Ins. Co., 116 Ga. App. 247, 250 ( 157 S.E.2d 44); Hardwick v. Price, 114 Ga. App. 817 (1) ( 152 S.E.2d 905). As was stated in Nat. Dairy Products Corp. v. Durham, 115 Ga. App. 420, 422-423 ( 154 S.E.2d 752), "[t]he cases requiring affirmative medical evidence of probability, such as Ladson Motor Co. v. Croft, 212 Ga. 275 ( 92 S.E.2d 103); Savannah River Lumber Co. v. Bush, 37 Ga. App. 539 ( 140 S.E. 899); Atkinson v. Fairforest Co., 90 Ga. App. 425 ( 83 S.E.2d 243); Atlanta Transit Co. v. Knight, 92 Ga. App. 469 ( 88 S.E.2d 738); Callaway Mills Co. v. Hurley, 100 Ga. App. 781 ( 112 S.E.2d 320) and cit., are distinguishable in that they involved issues of causation which, by the nature of the situation, could be resolved solely by expert medical evidence standing alone, in which cases the evidence must naturally be based at least on reasonable probability. `It appears to be well settled that medical testimony as to the possibility of a causal relation between a given accident or injury and the subsequent death or impaired physical or mental condition of the person injured is not sufficient, standing alone, to establish such relation.' [Cit.]"

The testimony at issue in this case must be distinguished from testimony in which an expert gives a definite opinion that may or may not be viewed by the fact finder as being based on pure speculation. In the latter situation, the weight and credibility of the testimony is for the fact finder. Johnson v. Fowler Elec. Co., 157 Ga. App. 319 (2) ( 277 S.E.2d 312). However, in the present case, as in McDaniel, supra, and related cases, and unlike City Council of Augusta, the "opinion" offered was nothing more than a statement that the required causal connection could exist, was not an opinion that the connection in reasonable probability did exist, and was unsupported by circumstantial evidence from which the Board was permitted to infer causation.

In workers' compensation heart injury cases, "the fact finder may rely on different forms of evidence, including medical opinion, or `the natural inference through human experience.'" Guye v. Home Indem. Co., 241 Ga. 213, 216 ( 244 S.E.2d 864). However, in every case, a claimant must demonstrate "by a preponderance of competent and credible evidence" (OCGA § 34-9-1 (4)) that his heart injury is related to his employment. In the present case, the record is devoid of any direct evidence of the required causal connection. Under Southwire Co., supra, the Board was not entitled to review the circumstances surrounding the claimant's employment and derive any "natural and reasonable inference" of causation from that evidence. Finally, the physician's testimony that the causal connection merely "could have" been present fails to achieve the statutory standard requiring proof "by a preponderance of competent and credible evidence" (OCGA § 34-9-1 (4)), and fails to show "a sufficiently strong `possibility'" of the required causal connection to overcome the rule against speculative testimony. Compare Travelers Ins. Co. v. Hogue, 130 Ga. App. 844, 845 ( 204 S.E.2d 760). Consequently, contrary to the conclusion of the majority, the record in this case is devoid of competent and credible evidence that would support the finding of causation between appellee's employment and his bypass surgery.

The majority may criticize the position expressed in this dissent as placing an undue emphasis, through the use of "semantics," on the causation issue in worker's compensation cases where the heart injury does not occur on the job. However, in my opinion, no other result is possible in light of Southwire Co. Once any "natural and reasonable inference" is destroyed because the "accidental injury" occurred off the job, the factual testimony regarding the circumstances of the claimant's employment is irrelevant to the fact finder on the issue of causation, except to the extent that it may provide a basis for expert opinion. Absent other relevant direct evidence, the only potentially probative causation evidence in this case is the opinion testimony of the medical experts. McDaniel, supra. This case, then, becomes one of those "which, by the nature of the situation, [can] be resolved [only] by expert medical evidence standing alone . . ." ( Nat. Dairy, supra, p. 422), and such opinion evidence must rise to the level of reasonable probability and not mere possibility.

It is important to note that the hearing process before the Board, while informal, must be "consistent with the requirements of due process of law. Irrelevant, immaterial, and unduly repetitious evidence shall be excluded. The rules of evidence pertaining to the trial of civil nonjury cases in the superior courts of Georgia shall be followed . . . ." OCGA § 34-9-102 (e) (1). Thus, while the "distinction between proximate and remote causes is not to be too rigorously pressed in the application of the [workers'] compensation act" ( U.S. Cas. Co. v. Smith, 162 Ga. 130, 137 ( 133 S.E. 851)), it is clearly inconsistent with legislative mandate, not to mention fundamental principles of due process, for this court to allow an award of compensation to stand on purely speculative and conjectural testimony that alone proves nothing. Compare, e.g., Liberty Mut. Ins. Co. v. Harden, 85 Ga. App. 830 (2) ( 70 S.E.2d 89) (award of compensation reversed) with Federated Mut. Hardware Ins. Co. v. Elliott, 88 Ga. App. 266 (3) ( 76 S.E.2d 568) (award of compensation affirmed).

Because the Board's award of compensation is not supported by any evidence in the record in this case, I must respectfully dissent from the majority opinion. I am authorized to state that Presiding Judge Quillian, Presiding Judge Shulman, and Judge Sognier join in this dissent.

QUILLIAN, Presiding Judge, concurring specially to dissent.

The purpose of this special concurrence is to draw attention to the fact that Southwire Co. v. Cato, 250 Ga. 895 ( 302 S.E.2d 91) needs clarification. The holding in Southwire has been interpreted to mean that the "heart attack" must occur while the employee is actually on the job to be compensable. In my opinion this was not what was held or intended to be held by the Supreme Court in Southwire. This erroneous interpretation may have occurred because the ruling made in Southwire did not fit the second question which the court stated certiorari was granted to answer. The second question stated: "whether the `natural inference from human experience' is applicable to a heart attack occurring at a time when the employee is not engaged in the employer's business." Southwire Co. v. Cato, 250 Ga. 895, supra.

The court only held that the "natural inference" would not apply when the heart attack did not occur until several hours after the claimant had left the job.

In my opinion, the court did not intend to rule that if there was sufficient evidence that the claimant had experienced symptoms of the attack during his employment and that the duties of his employment were sufficiently strenuous either because of mental strain or physical exertion to cause the heart attack; that the "natural presumption" would not apply because the employee was not actually on the job site.

In my judgment, this was not the intent of the court's ruling because it would be unreasonable under certain circumstances — an example of these circumstances would be where the facts showed that the employee had a previous heart condition; that he was engaged in very strenuous activities during the entire day of his employment; that he was working in the extreme heat; that he manifested symptoms of the oncoming heart attack several times during the day; that he was highly overweight and a heavy smoker; that he punched out on the time clock and got in his truck and left his employer's premises; that after he had driven approximately one-half mile he sustained a heart attack and immediately died.

I believe that the Supreme Court in its wisdom would rule that the "natural inference" applied under the circumstances stated above.

However, if that was or was not the intent of the court it would be great service to the Court of Appeals and the trial courts as well as the State Board of Workers' Compensation and the Bar for it to clarify the issue as to where the "natural inference" rule applies.