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PACIFIC EMPLOYERS INSURANCE COMPANY et al. v. WEST.
37071.
Workmen's compensation. Fulton Superior Court. Before Judge Alverson. December 12, 1957.
GARDNER, Presiding Judge.
There is sufficient evidence to sustain the findings of fact and award of the State Board of Workmen's Compensation.
The history of this case will be found in Pacific Employers Ins. Co. v. West, 213 Ga. 296 (99 S. E. 2d 89). After the order of the Supreme Court the case in due course of events was again in the State Board of Workmen's Compensation, before the full board. That board adopted the findings of fact and award of the deputy director who heard the case. The award of the full board reads: "Wherefore, based on the above and foregoing findings of fact, Gate City Table Company, employer, and/or Pacific Employers Insurance Company, insurance carrier, are hereby authorized and directed to pay to Mrs. Lillian N. West, widow-claimant, the sum of $25.50 per week for a period not to exceed 400 weeks, total compensation not to exceed the sum of $10,000. Employer and/or carrier are further authorized and directed to pay to the proper party upon satisfactory showing, the sum of $350 as funeral expenses. No medical is involved. All accrued compensation and burial expenses shall be paid immediately." The deputy director's findings of fact and award read: "I find as a matter of fact that Edward R. West, deceased, was an employee of Gate City Table Company on April 29, 1955, at an average weekly wage of $54.86. I find further, that on said date he died.
"I find further that Mrs. Lillian N. West is the legal widow of said deceased employee, they having entered into a ceremonial marriage on May 14, 1949. I find further, there are no minor children the result of this marriage, or of his previous marriage.
"I find further, from the evidence adduced, that shortly after lunch on April 29, 1955, the deceased complained of being 'deathly sick' and that he thought it was something he had eaten. Fellow employees testified that his breathing was not normal, he was pale; perspiring freely; and that he complained of pain in his chest. That he complained of feeling ill prior to eating his supper and lay down across the bed for a while before eating, and partook of very little food.
"I find further that Eugene West, son of the deceased, appeared as a belligerent witness. His manner of testifying, and his demeanor on the stand, clearly indicated he was making every effort to defeat the claim of the widow. He testified his father walked a mile to a shopping center and a mile back to have a percolator repaired, yet he did not go with him, or actually knew he went there. He also testified his father removed a heavy battery from a car. When asked the question 'Did your daddy help him lift the battery right out of the car?' he answered, 'I am pretty sure my daddy was the one that took it out.' The evidence does not show he was there when the battery was removed. His entire testimony appeared to be a concerted effort to show exertion on the part of his father, and it was quite apparent to the undersigned some bad feeling existed between the witness and his stepmother.
"I find further that deceased was not seen by any physician from the time of his first attack around 2 p.m. until the Grady intern saw him either a few minutes before the death or a few minutes thereafter. There is no testimony from this intern, and the death certificate was signed by the coroner. Two physicians testified on the basis of hypothetical questions. Dr. Lamar Glass was very positive in his testimony that the exertion involved in deceased's employment would bring on the 'heart attack,' and that the attacks at 2 p.m. and 7 p.m. were associated because the man did not get over the earlier attack, in that he died. Dr. Jeff Richardson testified exertion would not necessarily bring on a heart attack. He did, however, testify a man could have had a coronary attack at 2 p.m. and live for another five hours before dying from that particular attack.
"I find as a matter of fact claimant has shown exertion on the part of the deceased and further that he died of a 'heart failure.' There was no evidence to refute the exertion, and no competent evidence to show an intervening cause which would have precipitated the attack which caused his death.
"I find as a matter of fact that the cause of death as shown by the death certificate to be 'coronary occlusion' is amply supported by the testimony of the two doctors. Dr. Glass' testimony also included the statement every person who has a heart attack has arteriosclerosis. Dr. Richardson testified: 'Then when the artery becomes completely occluded then of course he has an attack which could prove fatal, as it was in this case.' The amount of exertion required is still an unsettled question, as was held in Hartford Accident & Indemnity Co. v. Waters, 87 Ga. App. 117, which held: 'Where it is shown that the cause of death is cerebral hemorrhage, unless and until some method is developed to ascertain with some degree of certainty that such an attack is not contributed to by exertion, we think that knowledge from human experience, including medical caution against exertion in such cases and the admitted opinion of experts that exertion might contribute to such an attack, authorized the finding in this case, on the weight of reasonable probabilities, that the amount of exertion in this case contributed to the cerebral hemorrhage which caused the deceased's death. Hartford Accident & Indemnity Co. v. Waters, 87 Ga. App. 117 (73 S. E. 2d 70).'
"Certainly, the undersigned cannot undertake to answer a question which the medical profession itself cannot agree upon . . . I therefore find as a matter of fact and conclude as a matter of law, Mrs. Lillian N. West is entitled to compensation at the rate of $25.50 per week for a period not to exceed 400 weeks. No medical is involved however the sum of $350 to be applied on burial expenses shall be paid to the proper party upon satisfactory showing.
"Wherefore, based upon the above findings of fact and conclusions of law, Gate City Table Company, employer and/or Pacific Employers Insurance Company, insurance carrier, are directed to pay to Mrs. Lillian N. West, widow, the sum of $25.50 per week for a period not to exceed 400 weeks. No medical is involved, but they are directed to pay to the proper party upon satisfactory showing, the sum of $350 to be applied on burial expenses. It is directed that all accrued compensation and burial expense allotment shall be paid immediately. And it is so ordered, this September 28, 1955."
1. Counsel for the plaintiff in error makes three contentions in his brief, the first of which is that the findings of fact are not sufficient in law to support an award granting compensation for the reason that there is not listed in the findings of fact the evidence pertaining to the exertion of the claimant. The director stated: "I find as a matter of fact claimant has shown exertion on the part of the deceased and further that he died of a 'heart failure.' There was no evidence to refute the exertion, and no competent evidence to show an intervening cause which would have precipitated the attack which caused his death." This finding is supported by evidence of a fellow employee that he and the claimant were engaged in the job of assembling tables which weighed about 100 pounds each, that they worked on opposite sides of a workbench; that in assembling the tables "we take them a piece at a time . . . file the edges off, turn the tables over and place two slides in them and the screws, run the screws down, put the dial in and push them together, after that we put whatever hardware there is . . . and then there is the legs that sets on them, we put them in there and nail them down . . . and then we get a box and each gets on one side, one on one side and one on the other, and slide it up maybe four feet from where we work out." They turn out about 35 tables per day. He classified it as medium work "two men to do it, it is not light work . . . it is not too heavy for two men to do." He also testified that the claimant after going to the restroom "come back and worked just a little bit." Accordingly the finding of fact that exertion had been shown was in fact supported by evidence, nor is the evidence susceptible of the construction that only the witness worked on that day.
Where the findings of fact of the hearing director are supported by evidence, and thereafter approved and adopted by the full board, such findings of fact are binding upon the court in the absence of fraud. Campbell Coal Co. v. Render, 48 Ga. App. 547 (2) (173 S. E. 245).
2. The statement in the finding of the deputy director as follows: "There being sufficient evidence in the instant case to resolve the question either way, the law provides the benefit should be resolved in favor of the claimant" is an erroneous conclusion of law for the reason that the burden of proving by a preponderance of the evidence that his claim is compensable is always on the claimant. Johnson v. Fireman's Fund Indem. Co., 79 Ga. App. 187 (1) (53 S. E. 2d 204). On the former appeal of this case in Pacific Employers Ins. Co. v. West, 213 Ga. 296, 299 (99 S. E. 2d 89) it was held: "Since the compensation board on its de novo trial of the plaintiff's claim for compensation neither adopted and thereby approved the deputy director's findings of fact as its own findings of fact nor made its own independent findings of fact from the evidence heard by the deputy director as it was authorized to do under the compensation law, there was nothing on which the judge could base a final judgment awarding compensation to the claimant as he did." On the return of the case the full board entered an award which recited, "After careful and thorough consideration of the record in this case, the majority of the board adopts the findings of fact of the deputy director in her award of September 28, 1955, as its findings of fact." The previous decision, supra, describes an award without findings of fact as being "like a verdict which is wholly unsupported by any competent evidence." Legal conclusions, of course, are not evidence. The finding of fact of the deputy director is sufficient to operate as the basis of an award in favor of the claimant, although the claimant would not be entitled to an award based simply on the proposition that the evidence was doubtful or that the claimant should be given the benefit of the doubt. The findings of fact of the deputy director are sufficient without regard to her erroneous conclusion of law, and the adoption of the findings of fact shows no intent on the part of the full board to adopt such conclusions. "After the award, that construction of the findings which would render the judgment valid should be adopted in preference to a construction which would render such judgment invalid, where such construction is reasonable and can fairly be applied." Maryland Casualty Corp. v. Mitchell, 83 Ga. App. 99 (3) (62 S. E. 2d 415). This court will therefore assume that the full board intended to and did place a legal rather than an illegal construction upon the findings of fact of the single director which it adopted, and that it did not intend to thereby approve the erroneous conclusion of law of the latter.
3. The employee, after suffering pain around noon which, according to medical opinion testimony was a heart attack, did a little more work and went home around 2:30 p.m. He died around 7 p.m. as the result of myocardial infarction following a second attack. The only evidence as to exertion after leaving his job (except that he ate a little supper and walked about 100 yards to a used car lot) was testimony of his son to the effect that his father also walked to a shopping center about a mile from his home and, after supper, worked on an automobile and helped lift out a battery. The finding of fact of the hearing director as to this evidence is that it is hearsay in that the witness was not with his father and did not know of his own knowledge whether or not these facts were true. The finding is supported by a later affidavit of the witness stating that he had testified as he did because he was angry with the claimant, and that as a matter of fact he had no personal knowledge of the subject matter of his testimony. Hearsay evidence, although admitted without objection, is entirely without probative value. Nesbit v. State, 71 Ga. App. 744 (1) (32 S. E. 2d 207).
Ward, Brooks, Parker & Daniel, Cullen M. Ward, contra.
Smith, Field, Doremus & Ringel, Palmer H. Ansley, Richard D. Carr, Harry E. Monroe, for plaintiffs in error.
DECIDED MARCH 14, 1958 -- REHEARING DENIED APRIL 1, 1958.
Saturday May 23 01:24 EDT


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