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Appeal; from DeKalb Superior Court-- Judge Guess. February 7, 1950.
The burden of proof is on the claimant in cases arising under the Workmen's Compensation Act to establish the fact that the employee has sustained an accidental injury such as is contemplated by the act. Where the evidence as to the cause of the death of the employee is in conflict, and the Board of Workmen's Compensation finds as a fact that this burden has not been carried, the courts are bound thereby, and the finding of fact of the single director that the claimant is not entitled to compensation will not be reversed by this court.
Magnolia Maddox, as the widow of Dock West Maddox, filed a claim for death benefits with the State Board of Workmen's Compensation against Buice Transfer and Storage Company, the employer of her deceased husband, and Liberty Mutual Insurance Company, its insurance carrier. The claim was denied by the single director before whom the evidence was presented, and his decision was affirmed by the full board, and affirmed on appeal by the Judge of the Superior Court of DeKalb County.
The undisputed evidence showed that Maddox was employed by the storage company to assist in the moving and storage of furnishings generally; that this was heavy work and often involved moving coal, pianos, refrigerators, and so on; that he was a strong man; that he did not, prior to his death, complain of his physical condition; that he had worked the day before with the regular moving crew; that at about 11 a.m. on September 7, 1948, he and another man took a load to Agnes Scott College; that the load was light, consisting of several cartons and foot lockers and two trunks, the trunks weighing between 75 and 125 pounds and the other articles averaging between 25 and 50 pounds; that some of these were carried upstairs and some taken up the elevator, which was pulled by hand; that Maddox made no complaint at that time; that he had previously borrowed money from his employer and asked permission to be driven in to Atlanta to pay his house rent and, immediately after delivering the articles the driver of the truck took him to a real-estate office in Atlanta, where he remained a few minutes. They then returned to Decatur, the driver leaving him near a filling station where he wished to go for the purpose of telling his nephew about the rent transaction; that this was at about 12:30 p.m.; that Maddox walked in to the filling station, asked for a drink of water, and collapsed immediately afterward; that he had a severe pain in his chest at that time; that he was taken to Grady and died approximately five hours later.
The claimant's physician, a specialist in heart diseases, stated from the history and autopsy that the deceased died as a result of coronary thrombosis or myocardia infarction, due to the presence of a clot in the coronary artery; that in his opinion the deceased's arteries were diseased and the heavy work which he did precipitated the attack. The physician testifying for the defendant agreed as to the cause of death but testified positively that in cases of that type physical exertion brings on a heart attack immediately; that if the attack in question did not occur until more than an hour following the exertion it could not have been caused by the work incident to moving the trunks and cartons in the manner described.
(After stating the foregoing facts.) The mere fact that the heart attack from which the claimant's husband died occurred at a moment when he was attending to personal business, rather than a few minutes earlier when he was engaged in the course of his employment, is not in and of itself sufficient upon which to predicate a denial of compensation. While an injury must both arise out of and in the course of the employment, "in the course of" relates to the time, place and circumstances under which the accident takes place. Continental Casualty Co. v. Caldwell, 55 Ga. App. 17, 21 (189 S. E. 408); Thornton v. Hartford Accident & Indemnity Co., 198 Ga. 786 (32 S. E. 2d, 816). If the immediate precipitating cause of the employee's death was exertion during the time he was lifting trunks and boxes, even though the attack from which he died was delayed for a time, then his dependents would be entitled to benefits.
Nor does the fact that the exertion, if it resulted in the attack, would not have caused the injury except for a physical condition weakened by pre-existing causes preclude the award of benefits. Paralysis due to cerebral hemorrhage in one already suffering from arteriosclerosis, because of prolonged exertion, has been held within the operation of the act, as also a ruptured blood vessel or an aggravated aneurism, even though the blood vessel was in such diseased condition that it would have finally produced the injury regardless of the work, if the work was the immediate precipitating cause thereof. See Griggs v. Lumbermen's Mutual Cas. Co., 61 Ga. App. 448 (6 S. E. 2d, 180), and cases there cited. But in such event it must affirmatively appear that there is a causal connection between the injury, insofar as employment is concerned, and the disease. In other words, the attack must be traumatic rather than idiopathic in origin. An award denying compensation will be affirmed where this connection is not made out. See Merritt v. Continental Casualty Ins. Co., 65 Ga. App. 826 (16 S. E. 2d, 612); Hartford Accident & Indemnity Co. v. Oglesby, 70 Ga. App. 160 (27 S. E. 2d, 774); American Mutual Liability Co. v. Harden, 64 Ga. App. 593, 595 (13 S. E. 2d, 685). In the Oglesby case it was held as follows: "This court cannot say as a matter of law that a certain amount of physical exertion materially contributed to the death of one in whom a circulatory collapse had already begun because of a blood transfusion. On such a question, as shown by the record, medical experts disagree, and this court is not qualified to settle so controversial a question."
Both physicians agreed that the employee in this case would not have been injured by the work he performed had he not had a pre-existing diseased condition of the arteries. One of them then testified that in his opinion the heavy work precipitated the final catastrophe. The other testified that he would stake his professional reputation that it would be impossible for an attack of this nature, which occurred over an hour after the work had ceased, to be in any way caused thereby. While direct and positive testimony cannot arbitrarily be rejected by a jury or other trier of facts, this rule does not apply to the opinion evidence of physicians or other experts. See, in this connection, Thompson v. Atlanta, 66 Ga. App. 255 (17 S. E. 2d, 761), holding that, "Our court has held that the question as to the weight and credit to be given to the opinion testimony of a physician witness in a Workmen's Compensation case is a matter to be determined by the Industrial Board. Ocean Accident & Guaranty Corp. v. Land, 64 Ga. App. 149 (12 S. E. 2d, 413)." Where, under conflicting testimony as to the cause of a stroke of paralysis. On the part of an employee suffering from high blood pressure, the director denied compensation, it was held: "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." American Mutual Liability Co. v. Harden, supra.
The evidence as to the cause of the heart attack from which the employee (lied being in sharp conflict, and there being some evidence to support the finding of the director denying compensation, this court is bound thereby. Accordingly, the judge of the superior court did not err in affirming the decision of the Board of Workmen's Compensation denying benefits to the claimant.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.
Neely, Marshall & Greene, for defendant.
Dobbs & McCutchen, for plaintiff.
DECIDED MAY 2, 1950.
Saturday May 23 06:06 EDT

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