Johnson v. Fireman's Fund Indemnity Co. , 79 Ga. App. 187 ( 1949 )

1. In order for a death to be compensable to a dependent under the provisions of the Workmen's Compensation Law, it must result instantly from an accident arising out of and in the course of employment, or later result proximately therefrom; and the burden of proof is on the claimant to show that the death so resulted.

2. Findings of fact made by the State Board of Workmen's Compensation, if supported by any competent evidence, are conclusive in the absence of fraud and cannot be set aside by the courts.

3. On the review of an award by a director of the State Board of Workmen's Compensation the full board acts as a fact-finding body and may reverse the award of a single director, although there be some evidence to support the finding of the director, but in reviewing an award by the full board denying compensation, the courts must affirm the award of the board if there is evidence favorable to the employer authorizing the award denying compensation.

4. The findings of fact by the board were authorized by the evidence, and the judge of the superior court did not err in affirming the award of the State Board of Workmen's Compensation denying compensation.

DECIDED APRIL 29, 1949. Amanda Johnson filed claim for compensation with the State Board of Workmen's Compensation against Randall Brothers Incorporated, and its insurance carrier, Fireman's Fund Indemnity Company, on account of the death of her husband, which she claimed arose out of and in the course of his employment. The deceased husband, John Johnson, was employed by Randall Brothers, and, on May 28, 1947, while engaged in the duties of his employment, was struck on the forehead over his right eye and knocked to the ground by a piece of lumber extending from the rear of a truck operated by another employee. He died on January 28 or 30, 1948, and the main issue for determination at the hearing was whether or not his death in any way resulted from the injuries received on May 28, 1947.

According to the testimony of the claimant, it appears that prior to the time of the accident her husband had been active and able to work regularly, but that thereafter he complained of aches and pains in his head, could not sleep well, was unable to work regularly, and rubbed his head so much that he rubbed the hair off; that she put hot towels on his head and rubbed him with alcohol; and that he went to bed about ten days after the accident and never did go back to the place of business of his employer, except in November, 1947, and then he could not do the work.

Dr. W. H. Durham, a witness for the claimant, testified that he saw and examined Johnson on January 25, 1948. Based on history given to him at the time by the claimant, it was his opinion that Johnson developed a brain tumor from the blow he received, and that this caused a cerebral hemorrhage, which was one of the causes of his death. Symptoms which he observed at the time of the examination or learned from the claimant were described as a paralysis of the left side, hemiplegia, dizziness and headaches, a stuttering and a murmur, as well as a flapping of the lips toward the affected side, when he tried to talk, and a thickness of the tongue. At the time of the examination Johnson was in a dying or semiconscious condition. He never saw Johnson again, but signed the death certificate, which shows the date of death as January 30, 1948. According to Dr. Durham, this was incorrect and should be January 28, 1948. On this death certificate the primary cause of death is shown as cerebral hemorrhage, duration three days, and the contributing cause as brain tumor, duration six months.

Charles Andrew Fuller, a witness for the claimant, testified that he worked with Johnson, and that Johnson worked regularly before the accident but not very much afterward. Willie Haynes, a witness for the claimant, testified to the same effect, and that after Johnson received the blow he complained about pain in his head.

Dr. P. L. Collinsworth testified for the defendants that he first examined Johnson on May 29, 1947, the day after the accident. At that time Johnson gave him a history of having been hit on the forehead over the right eye with a piece of lumber. Johnson walked into his office, and complained of headaches and dizziness, but gave no history of a period of unconsciousness. Dr. Collinsworth stated that he made a thorough examination. Since Johnson showed none of the symptoms of cranial injury of significance, he made a diagnosis of contusion of the forehead over the right eye. In his opinion the contusion would not have caused a brain tumor. He explained that, as he understood from reading, there were only twelve cases reported in medical literature in which tumor of the brain has been proven to be due to trauma. Johnson was observed after this and given anodynes for headaches. He was seen on May 31, June 3, and June 6, 1947, at which time the symptoms had appreciably receded, and Johnson was dismissed to return to work. X-ray pictures made by a technician in his office did not reveal a fracture. Johnson was next seen on August 18, 1947, by Dr. L. N. Turk, an associate of Dr. Collinsworth. On September 13, 1947, Johnson came to the office again, of his own volition, and was examined by Dr. Collinsworth. At that time he complained of his feet and ankles swelling and of shortness of breath. He had a marked pitting edema of the feet, ankles and lower third of the leg, and shortness of breath. He had rales throughout both lungs and a very irregular heart beat, and hypertension. Dr. Collinsworth gave Johnson a prescription for digitalis for his heart and chloride to produce relief for congestion, and informed him that he had a heart condition which was severe, which was not related to the injury received [in May, 1947], and suggested that Johnson contact his private physician or go to Grady Hospital. His diagnosis in September, 1947, was hypertension cardiovascular disease in a rather advanced stage, and he stated that the usual termination of a cardiac is cerebral hemorrhage, cerebral thrombosis, cerebral embolus, or simple failing of the heart and uremis. Hypothetically, he stated that if Johnson, on January 25, 1948, had hemiplegia with a history of vertigo, stuttering, and semi-consciousness, this would possible indicate a cerebral hemorrhage, and that this would not require a condition of brain tumor for its existence. He never saw Johnson after the visit in September, 1947.

J. R. Wilder testified for the defendants that Johnson worked under his supervision at Randall Brothers for about four years. His testimony indicates that Johnson worked regularly for this employer prior to May 28, 1947, and that after this time he noted a decrease in the quality of the work of Johnson. However, he also stated that he noticed a decrease in the quality of his work before the accident. He testified at length from payroll records, which indicate that Johnson worked with some degree of regularity from June, 1947, through the third week in January, 1948.

Dr. L. N. Turk testified that he examined Johnson on August 18, 1947, at which time he complained of pain over the right frontal area and at the place of his injury over the right eye. Based on the history of injuries in this area, it was his impression that the patient had a neuritis, and he treated him accordingly. His examination disclosed nothing that would indicate any cranial or brain injury or tumor. Johnson made no complaint at the time indicating a heart condition, and this witness did not notice any heart condition present in the patient, but did not examine him in this respect.

The hearing director found in favor of the claimant, and, on appeal to the board, this was reversed. The superior court affirmed the award of the board, and the claimant excepted. In order for a death to be compensable to a dependent under the provisions of the Workmen's Compensation Law, it must result "instantly from an accident arising out of and in the course of employment" or later result "proximately therefrom." (Code, Ann. Supp., § 114-413); and the burden of proof is on the claimant to show that the death so resulted. See Dorminy v. American MutualLiability Ins. Co., 61 Ga. App. 301, 303 (6 S.E.2d 67). There is no issue in this case in respect to the fact that the deceased employee was injured in an accident arising out of and in the course of his employment on May 28, 1947; but the controlling issue is whether or not his death, in January, 1948, resulted "proximately therefrom." The State Board of Workmen's Compensation, in reversing the award of the hearing director, stated, among other things: "Claimant has failed to carry the burden of establishing the fact that the death of the deceased resulted directly from the accidental injury sustained on May 28, 1947. . . There is no definite evidence which would reasonably connect the injury with the deceased's death. . . It is the further opinion of the board, predicated on a careful study of the evidence, that . . death did not result directly or indirectly from the accident sustained by the deceased on May 28, 1947, nor does it appear that the accident was a contributing cause." It is settled law that findings of fact made by the State Board of Workmen's Compensation, if supported by any competent evidence, are conclusive in the absence of fraud, and cannot be set aside by the courts. Harper v. National Traffic GuardCo., 73 Ga. App. 385 (36 S.E.2d 842). On the review of an award by a director of the State Board of Workmen's Compensation, the full board acts as a fact-finding body and may reverse the award of a single director, although there be some evidence to support the finding of the director, but in reviewing an award by the board denying compensation, the courts must affirm the award of the board if there is evidence favorable to the employer authorizing the award denying compensation. American Mutual Liability Ins.Co. v. Bond, 62 Ga. App. 562, 564 (8 S.E.2d 715), and citations.

According to the claimant, the deceased suffered pain from the date of the injury in May, 1947, until his death some nine months later in January, 1948, and during this period he was not able to work as well or as much as before the accident. This was, to some extent, substantiated by testimony of coemployees. However, this did not explain the cause of his death, although it is subject to an inference that there may have been a connection between the injury and his death. Wilder, his supervisor, testified that he noted a decrease in his ability to work prior to the accident, as well as after the accident, and he also testified in respect to the payroll records, showing that Johnson did work with some degree of regularity after the accident, over the entire period of nine months.

Dr. Durham testified that he examined Johnson only once, three days before his death, although he signed the death certificate, and in his opinion, the deceased died from a cerebral hemorrhage caused by a brain tumor, which was caused by the accident. The evidence does not show the actual existence of a brain tumor caused by the accident, but is the opinion of a medical expert that the deceased had a brain tumor. In conflict with this is the testimony of Dr. Collinsworth, to the effect that the injury that Johnson received, which he actually saw and examined the day following the accident, in May, 1947, would not likely cause a brain tumor, and when Dr. Collinsworth examined Johnson later, in September, 1947, he found that he was suffering from a severe heart condition, and not from any ailment connected with the accident. Dr. Collinsworth also testified that the usual termination of a person suffering from such a heart condition was, among other things, cerebral hemorrhage. If the testimony of Dr. Collinsworth, as to what may have caused the cerebral hemorrhage, is accepted in preference to that of Dr. Durham, death was not caused by a brain tumor caused by the accident. Neither Dr. Durham nor Dr. Collinsworth saw the deceased at the time of death, January 28 or 30, 1948, nor did either of them make an examination of the deceased thereafter to determine the cause of death.

The State Board of Workmen's Compensation weighs and evaluates the evidence, and the apparent conflicts in the evidence have been shown merely to point out that whether or not the accident on May 28, 1947, had any connection with the death of Johnson in January, 1948, was a matter which involved the weighing and evaluation of the evidence, and the inferences arising therefrom. It is clear from the record that the board determined, from a consideration of the evidence: (1) that the claimant did not establish the fact that her husband's death was the result of the injury received on May 28, 1947, from an accident arising out of and in the course of his employment; and (2) that his death was not in any way connected with said accident. Either of these views is entirely consistent with the evidence and is authorized by the evidence. The findings of fact by the board, when authorized by the evidence, cannot be disturbed by the courts, and the judge of the superior court did not err in affirming the award of the State Board of Workmen's Compensation denying compensation.

The plaintiff in error cites and relies upon Royal IndemnityCo. v. Land, 45 Ga. App. 293 (164 S.E. 492). That case is distinguishable from the present case. In the case last cited, a brain tumor was actually shown to exist a short time after the accident; the medical testimony indicated that the accident caused or aggravated the brain tumor; "no witness testified that the tumor was not caused by the injury"; the employee died some three weeks after an operation in which a large portion of the tumor was removed; and the Industrial Commission found, as a matter of fact, that the accident was the cause of death. But in the present case there was evidence authorizing the board to find that the injury in question would not likely cause a brain tumor and that no brain tumor existed, and that the deceased's death was not due to a brain tumor proximately caused by the accident he sustained; and the board found, as a matter of fact, that the death of the deceased did not result directly or indirectly from the accident sustained by him, and that the accident was not a contributing cause of his death.

Judgment affirmed. Felton and Parker, JJ., concur.