Opinion
34530.
DECIDED JULY 14, 1953. REHEARING DENIED JULY 28, 1953.
Workmen's compensation. Before Judge Hendrix. Fulton Superior Court. December 13, 1952.
Samuel A. Miller, Miller Head, for plaintiff in error.
Irwin Dyer, contra.
The evidence authorized the award of compensation to the widow of the employee who died as the result of a heart attack suffered while on the job, which attack was contributed to or caused by the exertion of the employee in performing his work for the employer.
DECIDED JULY 14, 1953 — REHEARING DENIED JULY 28, 1953.
Mrs. J. F. Clements filed a claim against Atlanta Newspapers, Incorporated, for compensation for the death of her husband. Upon the hearing the evidence was substantially: that J. F. Clements was employed by the Atlanta Journal as a compositor, and had been so employed for some 10 or 12 years; that at the time of his death he was 58 years old; that for several years Mr. Clements had had a heart condition, that is, he had had several heart attacks; that, on the day in which he was fatally stricken, January 3, 1952, he reported to work at about 7 or 7:30 a. m. and worked all morning, took about 45 minutes for lunch around noon, returned to his desk, and worked until about 1:30 when he complained of feeling ill, went to the rest room, sat down on the floor and was from there removed to the hospital. Later that day he was taken to his home in Douglasville, Georgia, and between that date and the date of his death on February 1, 1952, spent his time in bed and under treatment, either at his home, or in a hospital in Douglasville or in a hospital in Atlanta; that he was constantly, during that time, under the care of a physician or doctor and was never able to be up after the attack suffered while on the job on January 3. The evidence was that on January 3 Mr. Clements was working composing a full-page advertisement; that in doing this he placed the component parts of the advertisement in a galley which was on his desk, that he stood before his desk and took the parts or pieces, which were made of lead and weighed from less than an ounce up to not more than two pounds, from pigeon holes behind and beneath his desk and placed them and fitted them into the galley; that, in order to fit some of the pieces, it was necessary that they be trimmed or cut to size and for this purpose Mr. Clements had an electrically powered saw on or beside his desk with which he could cut the lead; that the operation of this saw required little or no effort on his part — he merely clamped the piece to be cut in a frame or holder and pushed the piece against the saw, the electric motor running the saw doing the work; that the work was not especially heavy or wearing on the nerves, and Mr. Clements, being an old experienced compositor could do the work with ease; that the completed advertisement weighed between forty and fifty pounds, but that Mr. Clements did not life it, since he would have had no occasion to move the advertisement until he had completed it, and it was not completed at the time he was stricken and had to leave the job. Various witnesses for the employer testified that it was generally known that Mr. Clements had a heart condition, that for this reason he was usually given lighter work, that he had specific instructions not to do any heavy lifting, and that several employees had general instructions to assist Mr. Clements and to do all heavy lifting for him.
The medical evidence was voluminous and conflicting, but it was not disputed that Mr. Clements had heart disease of some kind, that he suffered an attack on January 3, and that he ultimately died on February 1, 1952, as a result of that attack. Several of the specialists called to testify for the defendant stated in response to hypothetical questions put to them that the work that Mr. Clements was doing at the time he was stricken did not and could not have had anything to do with his attack and ultimate death; and that he could have had and probably would have had such an attack while at complete rest. Other witnesses called on behalf of the claimant, who qualified as specialists in the diagnosis and treatment of heart disease, testified in response to hypothetical questions put to them that the work that Mr. Clements was doing at the time he was stricken did have something to do with his being stricken and his ultimate death; and that such work definitely did contribute to or aggravate the existing heart condition and did cause his death.
The director of the State Board of Workmen's Compensation found in favor of the claimant and entered an award accordingly. Upon appeal to the full board that award was affirmed, and their award was likewise affirmed upon appeal to the superior court. The exception here is to the order of the superior court.
1. While it may be conceded that the hypothetical questions put to the expert witnesses for the claimant were not accurate statements of the facts in evidence, the record shows that each of the physicians who testified that the work the deceased was doing caused his seizure and ultimate death were thoroughly and siftingly cross-examined by counsel for the employer, and in each case, after having the facts restated and the questions formulated on the basis of the view of the evidence most favorable to the employer, were still of the opinion that the work the employee was doing contributed to his death. The record thus shows that the opinions of these witnesses were based ultimately on substantially a correct statement of the evidence. "The Board of Workmen's Compensation or a single director thereof sits as a court, judging both the law and the facts, rather than as a jury. A jury considers all the evidence in the record. It is incumbent upon the party objecting to such evidence to have it ruled out in order to avoid its consideration. On the other hand, the Board of Workmen's Compensation or a director thereof in the capacity of a court sifts out inadmissible evidence and considers only that which is admissible under the rules of evidence, whether actually ruled out or not." Liberty Mutual Ins. Co. v. Meeks, 81 Ga. App. 800 (2), 805 ( 60 S.E.2d 258).
2. We need not cite authority, of course, for the rule that an award by a single director, affirmed by the full board, is conclusive as to all issues of fact where there is any evidence to support the findings with respect thereto, and that this court is without authority to interfere with such an award. This court has frequently said in cases where exertion was a factor in producing the injury or death that "An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health." Williams v. Maryland Casualty Co., 67 Ga. App. 649, 653 ( 21 S.E.2d 478). "If the employment of the employee contributes to the injury it is an accident under our compensation law and is compensable, it matters not what combined with the employment to produce it." Fidelity Casualty Co. v. Adams, 70 Ga. App. 297, 298 ( 28 S.E.2d 79). "It is immaterial that the physical exertion engaged in by the employee is not unusual or excessive. . . " Bussey v. Globe Indemnity Co., 81 Ga. App. 401, 404 (2) ( 59 S.E.2d 34).
The plaintiff in error cites and relies on two recent cases as being most nearly like the instant one and as controlling. These are: Finch v. Evins Amusement Co., 80 Ga. App. 457 ( 56 S.E.2d 489), and Shelby Mutual Casualty Co. v. Huff, 87 Ga. App. 463 ( 74 S.E.2d 251). In the Finch case the decision was based on the fact that the employee, though at his place of employment, had not actually gone to work when the fatal attack occurred. In the Huff case the reversal of the decision awarding compensation was based on the fact that there was no proof whatsoever as to the cause of death. These cases are clearly distinguishable from the case at bar. The facts in this case are not materially different from those in Hartford Accident c. Co. v. Braswell, 85 Ga. App. 487 ( 69 S.E.2d 385). In view of the foregoing authorities the award of compensation in this case was not without evidence to support it, and the judge of the superior court did not err in affirming the award.
Judgment affirmed. Sutton, C. J., and Felton, J., concur.