Opinion
35887.
DECIDED OCTOBER 6, 1955.
Workmen's compensation. Before Judge Houston. Barrow Superior Court. July 1, 1955.
Quillian, Quillian Thomas, Alfred A. Quillian, for plaintiff in error.
Richard D. Carr, contra.
There is ample evidence to support the finding of the State Board of Workmen's Compensation, based on the finding and award of the deputy director. The court did not err in affirming the finding of fact and award so found.
DECIDED OCTOBER 6, 1955.
Mrs. Lula Austin Griffeth (hereinafter called the plaintiff) filed a claim with the State Board of Workmen's Compensation, against the County of Barrow and National Surety Corporation, as the widow of Joseph H. Griffeth, on account of his death. The matter was heard by a deputy director of the State Board of Workmen's Compensation, who made an award in favor of the defendant. An appeal was filed to the full board, and the full board denied the appeal and affirmed the deputy director. An appeal was then filed to the Superior Court of Barrow County, and that court denied the appeal and affirmed the award. The case is here on a bill of exceptions assigning error on that judgment.
The evidence shows substantially that, on the morning of March 8, 1954, at about 10 o'clock in the morning, the deceased, while suffering from both arteriosclerosis and hypertension, was able to work and was actually and actively engaged in the performance of the duties of his employment; that the crew which he supervised removed a large bush from one place to another on the courthouse lawn; that the deceased got down on his knees beside the hole in which the large bush was to be placed. A witness for the claimant testified that the deceased stated that he got too hot. There was testimony to the effect that he was for the most part "just piddling around." At any rate, he finished his work for the day, making no complaint that he was ill.
The deputy director who heard the case made the following finding of fact and award: "The above case was called to be heard before the undersigned deputy director in Winder, Georgia, on September 14, 1954, for the purpose of determining liability, compensation and dependency.
"Joseph Howard Griffeth was an employee of County of Barrow and died on the 9th day of March, 1954. His wages were $35 a week for 5 1/2 days.
"Doctor John Hunnicutt, testified in substance as follows: Usual causes of cerebral hemorrhage is a break in a blood vessel; a man who has hypertension and/or arteriosclerosis is more likely to have a cerebral hemorrhage than the average person; cerebral hemorrhage could be caused by strain or over-exertion; a man could have a hemorrhage and continue to work and collapse at a later time. One might expect a terrible accident if a person had arteriosclerosis and hypertension and had been suffering for approximately a year and then overexerted himself or became overheated; of course if a person is suffering from high blood pressure a hemorrhage can occur in his sleep or at any time. Witness never saw the deceased claimant and merely gave hypothetical answers to hypothetical questions.
"William Quenton Randolph, testified in substance as follows: He attended Mr. Griffeth, who died of cerebral hemorrhage and had treated him prior to his death for hypertension and arteriosclerosis. He was called on March 8, 1954, and when he arrived Mr. Griffeth was not conscious; they took him to the hospital, but he never gained consciousness. Overexertion would cause a man to get overheated, and overexertion could cause a man's blood pressure to get higher and possibly cause a hemorrhage. He did not perform an autopsy. He first saw Mr. Griffeth about ten o'clock on March 8, and the deceased died at 6:15 p. m. on March 9. The medical profession does not look on `overexertion' as a trauma. If exertion is strenuous enough to be the precipitating cause of a cerebral hemorrhage, the hemorrhage could take place some time later. He does not think that claimant would have had a cerebral hemorrhage had he not had the exertion that he had until possibly in future years. He thinks that the hemorrhage did occur about an hour prior to the time he saw him on the night of March 8.
"It was stipulated that on March 8, 1954 the deceased employee, Joseph Howard Griffeth, was an employee of Barrow County, and had been for more than thirteen weeks preceding that date and that his average weekly wage was $35.
"Mrs. Lula Austin Griffeth, widow of deceased claimant, testified in substance in her own behalf, as follows: When her husband came in from work on the night of March 8th `he was plumb yellow and had glittering eyes' and when she asked him what was the matter he said `he got too hot and his legs were cramping' . . . he complained of his head hurting, and said he was paralyzed, and he never said another word after that. He didn't eat any supper, just drank a little coffee.
"J. T. Sorrells, testified in substance as follows: He is a son-in-law of Mr. Joseph Howard Griffeth and visited in the home just prior to his death, and knew when he walked into the room that Mr. Griffeth was not feeling well; his eyes were glassy looking and he complained of his head hurting and his legs hurting, complained of getting too hot.
"Mrs. Odine Sorrells, testified in substance as follows: Mr. Joe Griffeth was her father; that when she and her husband visited in the home on the night of March 8, her father complained of his head and legs hurting, said he had worked too hard and got too hot. He looked at the house rent receipt, which she handed him, and his head dropped; he looked different from what he always looked but she didn't think too much about it at the time; they had been at home just a few minutes when they got word he was dead.
"Willie Williams testified in substance as follows: He worked with Mr. Griffeth for Barrow County; they worked together for a little over two years. On the day before he had a stroke he did not observe anything unusual about him and he did not complain about feeling bad during the day; when the job was over they all went to the barn together. On that day he was very cheerful.
"Jimmy Freeman testified in substance as follows: He worked with Mr. Griffeth on the day he had his attack that night and he seemed to be feeling as good as usual; he did not complain of anything. They were moving and resetting shrubbery at the courthouse on March 8th, and Mr. Griffeth was the supervisor but he worked along with the rest of them, raking a little grass and he has done some heavy work but he didn't see him do any that day.
"Mrs. Lula Austin Griffeth testified in substance as follows: As she was recalled to the stand. Mr. Griffeth rode within half a mile from work to home on March 8th; he had to walk about a half mile home.
"George B. Griffeth testified in substance as follows: He is the son of Mr. Joseph Griffeth, and identified the receipted bill for Dr. Randolph in the amount of $15 which he paid, and a bill for $33.55. The funeral bill had not been paid.
"Deposition of Robert H. McGee: Taken on behalf of the claimant, by agreement of counsel. He lives in Winder and was around the courthouse on the day that Mr. Griffeth and the men were working with the shrubbery. They dug up a big bush, about three or four feet in diameter at the bottom and he was down on his knees, reaching down trying to move it along; he had been around there all the morning, and when Mr. Griffeth raised up he looked around and said, `I got too hot fooling with that thing.' He was awful red in the face and his arteries were standing out. He had known Mr. Griffeth for 20 years and when he looked in his face he knew something was wrong; those arteries were standing out in his forehead; he leaned up against the building and said, `Yeah, you can get pretty hot pretty easy.' Somebody said to him, you had better get around where it is cool, and he did. He didn't think too much about it at the time but as he walked up the street he knew something was the matter with Joe. He never saw him any more that day. He was around the courthouse from about 8 o'clock until about 11 o'clock. He did not work for Barrow County and was only there in an unofficial capacity in helping the ladies do the landscape. He saw Mr. Griffeth dig around the bush on that day as well as helping with smaller pieces of shrubbery. Mr. Griffeth wasn't a red faced man but it was awfully red, something unusual when he looked at him when he raised up. He doesn't know what the temperature was that morning but it was pretty warm.
"Deposition of Dr. L. Minor Blackford, taken on behalf of the defendant, by agreement of counsel. There are two schools of thought on the effects of exertion upon the heart. There are two types of strokes, one type is a clot which forms in one of the arteries supplying the brain but it is his opinion that the clot doesn't form in the vessels supplying the brain as a result of exertion, and some, perhaps not an overwhelming majority, believe that an actual hemorrhage is related to exertion. It is his opinion that exertion can be an attributing factor to the production of a cerebral hemorrhage of the type which is affected by exertion. In answer to a hypothetical question, his positive opinion is that the exertion of Mr. Griffeth which occurred at 10 o'clock in the morning had nothing to do with his going into a coma at 9 o'clock that night. There is often some difficulty in determining whether a clot is formed or whether it has been an actual hemorrhage. Both of them result in a stroke. If the hemorrhage is of any significance the patient usually dies. If the clot forms there is a stoppage of blood going to the part of the brain which is beyond the place where the clot forms and there is a swelling of that part of the brain which interferes with circulation. If the clot opens up the swelling will subside, and if a man lives the first two or three days after a stroke he can expect to improve gradually for perhaps another six months. It is also possible that a person can have a cerebral hemorrhage, whereas the seepage of blood could be so gradual that an actual loss of consciousness or paralysis can be a matter of some hours' or even a day's time. It is possible that the exertion of Mr. Griffeth in the morning ballooned the blood vessel to burst and allowed seepage at a later time. However, it is probable that whatever did happen to him began between the time he left his friend on the road and started to walk home. Finding of facts: From the stipulations made and entered into at the time of the hearing, I find as a matter of fact, and rule as a conclusion of law, that Joseph Howard Griffeth was an employee of the County of Barrow at an average weekly wage of $35 for five and one-half days work per week. It is the contention of the defendant that no accident arose out of and in the course of deceased claimant's employment. I further find as a matter of fact that Lula Austin Griffeth, the widow, was the sole dependant of Joseph Howard Griffeth, the deceased. I further find that Joseph Howard Griffeth worked around the courthouse for the County of Barrow at Winder, Georgia, all day on March 8th, 1954, and that after he completed the day's work he went in to put up his tools and rode part of the way home and then walked approximately one-half mile. I further find that claimant was in good spirits and did not complain to anyone on March 8th. I further find that after deceased claimant had walked approximately one-half mile home he drank some coffee and sat in the living room and talked with his daughter and son-in-law until approximately ten minutes to 9 o'clock. I further find that he retired about ten minutes to 9 o'clock and shortly thereafter he become sick and paralyzed. I further find that the claimant failed to carry the burden of showing that Joseph Howard Griffeth had an accident which arose out of and in the course of his employment. I further find that claimant complained to no one of having a headache or of anything being wrong with him, other than he got a little bit too hot after 10 o'clock in the morning; that he went ahead and completed his full day's work and then went to the barn to put up his tools at 5 o'clock. From the superior weight of the evidence I find that the claimant's death was idiopathic in origin rather than traumatic.
"Award: Wherefore, based on the above and foregoing finding of facts and conclusion of law applicable thereto, compensation in the within case is herein denied."
The question involved is, of course, did the deceased employee sustain an injury such as is contemplated by the Workmen's Compensation Act?
There are cases which have been decided by this court granting compensation because of exertion causing death or injury, and there are cases which have been decided contrawise. Suffice it to say that the amount of exertion, among other things, is always a controlling factor. Counsel for the plaintiff cite Hartford Accident c. Co. v. Waters, 87 Ga. App. 117 ( 73 S.E.2d 70). In that case the defendant was brushing cotton lint off a spinning frame, using a broom weighing two to four pounds from which most of the handle had been cut. The deceased became dizzy and fainted, was removed immediately from the building in this unconscious condition, and carried to a hospital. In the instant case, the deceased finished his work for the day without complaining to fellow employees as to how he felt. Therefore, the facts there and here are not sufficiently similar to be considered. It is true, as stated in Maryland Casualty Co. v. Dixon, 83 Ga. App. 172 ( 63 S.E.2d 272), cited by counsel for the plaintiff, that "The fact that such an attack is made more likely or probable by a pre-existing weakened physical condition is not a ground for denying compensation, if there is sufficient competent evidence that it was traumatic rather than idiopathic in origin. . . And if the exertion of the employment was the immediate precipitating cause of the employee's death or disability, the mere fact that the attack itself was delayed somewhat, and occurred after the employee had left the premises of his employer, is not in itself sufficient reason for denying compensation." Counsel also cites Liberty Mutual Ins. Co. v. Meeks, 81 Ga. App. 800 (1) ( 60 S.E.2d 258). In that case the deceased had been carrying concrete slabs weighing sixty to seventy-five pounds each from an elevator across a roof where they were being used by a workman. This, of course, was done by the deceased in that case throughout the day with no rest period. Not so in the instant case. It thus becomes a question of law as to whether there is in the record evidence to support the finding of the director, either awarding or denying compensation, in cases involving strokes, seizures, and fatalities of like kind. Of course, an award must be predicated upon competent evidence, as pointed out by counsel for the plaintiff. See Lathem v. Hartford Accident c. Co., 60 Ga. App. 523 ( 3 S.E.2d 916). This is a correct principle of law, but is not cause for reversal of the instant case, as there was competent evidence to support the finding of the State Board of Workmen's Compensation. The time element is not the entire controlling factor involved in the instant case. The fact of lack of sufficient exertion is also a factor. Lumberman's Mutual Casualty Co. v. Griggs, 190 Ga. 277 ( 9 S.E.2d 84); Williams v. Maryland Casualty Co., 67 Ga. App. 649 ( 21 S.E.2d 478); Bituminous Cas. Corp. v. Powell, 84 Ga. App. 235 ( 65 S.E.2d 825); Massachusetts Bonding Ins. Co. v. Turk, 84 Ga. App. 547 ( 66 S.E.2d 364); Reed v. Lumbermens Mutual Cas. Co., 84 Ga. App. 541 ( 66 S.E.2d 360); and U.S. Casualty Co. v. Kelly, 78 Ga. App. 112 ( 50 S.E.2d 238), are all inapplicable because the facts are so unlike the facts in the case at bar.
The rulings in Royal Indemnity Co. v. Land, 45 Ga. App. 293 ( 164 S.E. 492), and Davis v. Bibb Mfg. Co., 75 Ga. App. 515 ( 43 S.E.2d 780), are inapplicable here. On the other hand, we think the ruling in American Mut. Liability Ins. Co. v. Hardin, 64 Ga. App. 593, 13 S.E.2d 685), is controlling. In that case the court said: "In cases of this kind the burden of proof is on the claimant to establish the fact that he has sustained an accidental injury such as is contemplated by the Workmen's Compensation Act. The Industrial Board found as a fact that this burden had not been carried by the claimant. This finding is binding on all courts when there is evidence in the record to support it." Again we reiterate that the determination of this case rests solely on whether or not there is any competent evidence to support the findings of the State Board of Workmen's Compensation. We think there is abundant evidence to support the finding of the board. If there is any competent evidence to support such finding, the Court of Appeals is bound to support it, in the absence of fraud. In B. F. Goodrich Co. v. Arnold, 88 Ga. App. 64 (1) ( 76 S.E.2d 20) it is stated: "The Workmen's Compensation Act makes the finding of the board upon the facts final and conclusive, and in the absence of fraud such finding cannot be set aside by any court if there is any competent evidence to support it." See also Liberty Mutual Ins. Co. v. Holloway, 58 Ga. App. 542 ( 199 S.E. 334); Adams v. Glens Falls Indemnity Co., 58 Ga. App. 663 ( 199 S.E. 783); Bituminous Casualty Co. v. Jackson, 68 Ga. App. 447 ( 23 S.E.2d 191); Maryland Casualty Co. v. Hopkins, 71 Ga. App. 175 ( 30 S.E.2d 357); Georgia Casualty Co. v. Martin, 157 Ga. 909 ( 122 S.E. 881); Maryland Casualty Co. v. England, 160 Ga. 810 ( 129 S.E. 75); Fried v. U.S. Fidelity c. Co., 192 Ga. 492 ( 15 S.E.2d 704).
The deputy director correctly found against the claimant. The full board correctly affirmed the finding of fact and award, and the Superior Court of Barrow County did not err in affirming this award.
Judgment affirmed. Townsend and Carlisle, JJ., concur.