Kennedy v. Martin Marietta Chemicals , 34 N.C. App. 177 ( 1977 )

237 S.E.2d 542 (1977)

Margie W. KENNEDY, Widow; Alma Small Kennedy Homesley, Guardian Ad Litem for Roger Dale Kennedy, Minor Child; Lola Holden Kennedy Miller, Guardian Ad Litem for Trenton Orglee Kennedy, Minor Child, of Willis Trent Kennedy, Deceased, Employee,
v.
MARTIN MARIETTA CHEMICALS, Sodyeco Division, Employer,
Continental National American Insurance Co., Carrier.

No. 7626IC975.

Court of Appeals of North Carolina.

October 5, 1977.

Delaney, Millette, DeArmon & McKnight, by Samuel M. Millette, Charlotte, for plaintiff-appellee, Margie W. Kennedy.

Childers & Fowler, by Max L. Childers, Mount Holly, for plaintiffs-appellees, minor children of Willis Trent Kennedy.

Kennedy, Covington, Lobdell & Hickman, by Edgar Love, III, Charlotte, for defendants-appellants.

ARNOLD, Judge.

Recovery under the Workmen's Compensation Act is designed to compensate for those injuries resulting from accidents which arise out of and in the course of employment. The term "accident" has often been defined as "(1) an unlooked for and untoward event which is not expected or designed by the injured employee; (2) a result produced by a fortuitous cause." Harding v. Thomas & Howard Co., 256 N.C. 427, 428, 124 S.E.2d 109, 110-11 (1962). Injury by accident is an injury produced by a fortuitous cause. Brown v. Aluminum Co., 224 N.C. 766, 32 S.E.2d 320 (1944).

Defendants assign error to the finding by the Commission that there was some gaseous substance or some harmful agent which accumulated in the bottom of thionator six, and that this substance or agent cut off the decedent's oxygen supply. We must determine, then, if there is any evidence of substance which will directly, or by reasonable inference, tend to support the Commission's findings. If the findings of fact are supported by any such evidence they are binding on appeal even though there be evidence to support a contrary finding. Willis v. Drapery Plant, 29 N.C.App. 386, 224 S.E.2d 287 (1976); Russell v. Yarns, Inc., 18 N.C.App. 249, 196 S.E.2d 571 (1973).

Gary McCorkle, the chemical company's employee who went into thionator 6 to retrieve the decedent, gave the following testimony:

"I went down in the tank to see him sitting down on top of the coils. I called him. He still didn't answer. I grabbed him under each arm trying to pull him out. I couldn't budge him. As I looked down a little further in the tank, I noticed his leg was—it seemed to to be stuck in between the coils or something, and as I stepped off the coil down into the bottom of the tank and as I leaned over to push his knee out, it was, I don't know, just a heavy fume or something hit me, just like it took all my wind away from me, made me weak, and I just hollered back up there and told them it was gas in the tank. I started crawling out. I think I remember getting to the mouth of the tank. I don't know whether I made it all the way out or somebody pulled me out. When I came to, I was out on the dock of the plant. I don't remember pulling myself out of the tank or nothing. All I remember when that heavy fume hit me it just made me dizzy and took the wind out. All I wanted to do was get some air."

Notwithstanding the extensive evidence by defendants concerning Martin Marietta' precautions in preparing thionator six for repair work, we find McCorkle's testimony to be competent evidence which tends to support the finding that there was a harmful gaseous substance in the bottom of the thionator.

The next argument presented by defendants is that the Commission erred in finding that a sudden deprivation of oxygen accelerated or aggravated Kennedy's pre-existing heart condition, thereby triggering his heart attack. According to defendants, Dr. Wood's testimony does not support that finding because (1) Dr. Wood's testimony on this point was in terms of possibilities rather than probabilities and (2) the hypothetical question directed to him did not contain all relevant facts. We disagree.

There is nothing in the record which indicates that Dr. Wood was testifying in terms of possibilities rather than probabilities. The hypothetical question posed covered two pages of the record and was propounded in the proper form, i. e., whether, in the opinion of the doctor, a particular event or condition could or might have produced the result in question. 1 Stansbury's N.C. Evidence § 137 (Brandis Rev. 1973). In Lockwood v. McCaskill, 262 N.C. 663, 668-69, 138 S.E.2d 541, 545 (1964), cited by defendant appellant, Justice Moore stated that the

"``could' or ``might' as used by Stansbury refers to probability and not mere possibility.... A result in a particular case may stem from a number of causes. The expert may express the opinion that a particular cause ``could' or ``might' have produced the result—indicating that the result is capable of proceeding from the particular cause as a scientific fact.... If it is not reasonably probable, as a scientific fact, that a particular effect is capable of production by a given cause, and the witness so indicates, the evidence is not sufficient to establish prima facie the causal relationship ..." (Emphasis added)

Based on the foregoing standard, we find nothing prejudicially wrong with the doctor's opinion that the inhaling of hydrogen sulfide fumes or other irritating gases could have triggered the heart attack leading to the decedent's death. Furthermore, we reject defendants' contention that Dr. Wood's testimony was incompetent because the hypothetical question failed to incorporate the phrase "to a reasonable degree of medical certainty."

Defendants also argue that the hypothetical question was insufficient because it did not contain all relevant facts, namely that air was being introduced into the tank at various points, and that the blower was completely changing the air within the tank in a little over a minute's time. A close reading of the hypothetical question reveals that the witness was not called upon to establish that there was a sufficient quantity of hydrogen sulfide to cut off decedent's oxygen supply; the rapidity with which the air was being replaced was not, therefore, a necessary element of the question to the expert witness. Consequently, we find no prejudicial error in the admission of Dr. Wood's answer to the hypothetical question.

In considering defendants' contention that the Commission erred in finding that a sudden deprivation of oxygen accelerated the heart condition, we have also reviewed the record to find whether or not there is any competent evidence to support the Commission's finding. In addition to the hypothetical question relating to the cause of the heart attack, there is evidence that the reddish color of the lungs of decedent could have resulted from inhalation of something other than oxygen. Evidence of the quick breathing by decedent also could have indicated a decreased supply of oxygen. Moreover, the doctor testified that decedent "[w]ith the degree of heart disease that he had ... would be in a certain precarious state if he were in a situation of decreased oxygen supply. It would certainly be, could be a stress situation for him, and it would lead to essentially a heart attack at some point because of this decreased oxygen with his impaired coronary circulation to the heart."

Based on the foregoing evidence, we conclude that the Commission, having found from competent evidence that there was a diminished oxygen supply due to the presence of a gaseous substance, could reasonably infer that the diminished oxygen supply, combined with decedent's arteriosclerotic heart disease, caused the fatal heart attack.

The order of the Commission awarding death benefits is

Affirmed.

PARKER and MARTIN, JJ., concur.