Shivers v. Biloxi-Gulfport Daily Herald , 236 Miss. 303 ( 1959 )

Ethridge, J.

In this workmen’s compensation case the principal question is whether the Commission was warranted in finding that the employee did not receive an accidental injury. We think the undisputed evidence requires a conclusion to the contrary.

The claimant, Willie Shivers, averred that he had a heart attack while at work on November 14, 1956, and his work aggravated and accelerated a pre-existing heart disease. The claim is solely for total permanent disability benefits. Claimant died about two years after the alleged accidental injury, and this appeal has been revived in the name of his widow and sole heir, Angie Shivers.

Shivers, forty-eight years of age, had been employed as a janitor since 1950 by the Biloxi-Gulfport Daily Herald. The last day he worked for the newspaper was November 14, 1956. It is undisputed that for several years prior to that date Shivers suffered from a hypertensive cardio-vascular disease. Dr. Joseph G. McKinnon said he treated Shivers on a number of occasions before November 1956. Dr. Felix H. Dunn, who testified for the employer, diagnosed his previous condition as cardiac asthma, or a cardiac condition complicating his asthma.

As we see it, the testimony of Shivers and his wife, that he had a heart seizure or attack on November 14, 1956, while working, is undisputed by any other evidence in the record. He said he did general janitorial work, running errands, getting press plates out of the car, “trucking” papers and loading bundles of paper weighing around fifty pounds in a truck. While loading these papers he became sick and felt a hurting in his side and chest, and then over all of his body. He “just felt like something was coming loose inside” of him. He had been able to do his work before that time. His wife testified that, when Willie came home that day, he told her he felt as if something had “torn loose” in him. He was ill and stayed at home for two weeks. On November 28,1956, Dr. Dunn put him in the hospital for several weeks. Subsequently he spent some time in a veteran’s hospital. Both of the doctors who testified, and also claimant and his wife, said that after November 14 he was totally and permanently disabled because of his heart. Before that date, Shivers was able to do his work for the employer, but from time to time in the preceding two years he had been ill.

Although the testimony of Shivers and his wife was undisputed that he suffered a heart seizure or attack on the day in question, the attorney-referee nevertheless held that claimant failed to prove that he suffered an accidental injury arising out of and in the course of his employment. The Commission affirmed the attorney-referee, with one commissioner dissenting. The circuit court affirmed the Commission’s order.

The work must be only a contributing and not the sole cause of the injury. The injury is compensable if the employment aggravated, accelerated or combined with the disease or infirmity to produce the disability or death for which compensation is sought. W. G. Avery Company v. Hall, 224 Miss. 51, 79 So. 2d 453, 80 So. 2d 53 (1955). Moreover, evidence which is uncontradicated or undisputed should ordinarily be taken as true by the trier of facts, if it is not inherently improbable or unreasonable. It cannot be arbitrarily disregarded. Lucedale Veneer Company v. Rogers, 211 Miss. 613, 53 So. 2d 69 (1951); Reyer v. Pearl River Tung Company, 219 Miss. 211, 68 So. 2d 442 (1953).

There is no dispute as to the testimony of Shivers and his wife that while he was working on November 14, 1956, doing heavy lifting, he suffered a heart seizure or attack; that he had been doing his work before this time, and after it he was totally and permanently disabled. It is true that Shivers said he reported the injury to one of his superiors, and the superior denied that. However, he unquestionably reported it to someone at the newspaper plant, because he was furnished an application form and shortly began receiving disability benefits under a non-industrial policy which the newspaper carried. Witnesses for the newspaper admitted they knew he was receiving these disability benefits. So we do not think that circumstance constitutes any impeachment of claimant’s testimony on the main issue. Claimant’s statement that a superior at the newspaper gave him $20 to go to a doctor was also denied, but that contradiction would not warrant the Commission in disregarding the testimony of claimant and his wife that he suffered a heart seizure while at work. This contradiction is simply immaterial on the controlling issue. Doctors Mc-Kinnon and Dunn stated they did not remember whether Shivers, in giving the history of his case, told them he had suffered a heart attack on November 14, 1956. Dr. Dunn had previously discarded claimant’s file. Their failure to remember does not contradict claimant’s testimony concerning the fact of the attack. Claimant said that after the attack he went to see Dr. Dunn, who told him he had heart trouble. Dr. Dunn did not remember when in November 1956 he saw Willie. This does not contradict Willie’s testimony that after he had the attack he went to Dr. Dunn.

It is also contended that the injury was not accidental, because Shivers knew that he had a serious heart disease and had been told by his employer not to do any heavy lifting. However, the fact that he inadvertently hastened his own disability by exertions on the job does not deprive the occurrence of its accidental character. L. B. Priester & Son v. McGee, 106 So. 2d 394 (Miss. 1958).

Moreover, it is well established that an accidental injury need not result suddenly or from the immediate application of external force. The injury may accrue gradually over a reasonably definite and not a remote time. Weeks of work and strain may lead to the disability. Hardin’s Bakeries v. Ranager, 217 Miss. 463, 64 So. 2d 705 (1953); Insurance Department of Mississippi v. Dinsmore, 104 So. 2d 296 (Miss. 1958). Shivers suffered from a cardiac disease before the injury which resulted in his total disability, but he was able to work most of the time prior to November 14. The employer takes the employee as he finds him, and appellee was well aware of claimant’s pre-existing heart condition. It is not disputed that Shivers suffered the heart seizure or attack on that date, and subsequently he was totally and permanently disabled.

The only fact which renders this case any different from the numerous other heart cases we have had in the past few years is that claimant did not go to a hospital immediately after his heart seizure or attack on the job, but instead stayed at home for two weeks, before his visit to the hospital. That fact does not negative the injury on the job. In some cases it might be relevant on the extent of disability, but it is not so here. The testimony of both doctors was unequivocal that physical exertion would accelerate and precipitate claimant’s disability, and, if Shivers was doing what he said, such exertions would and did contribute to his disability. Claimant’s evidence of his injury is undisputed, and the Commission had no right to arbitrarily disregard it.

The judgment will provide for interest from the respective due dates of the compensation payments. Five percent damages under Code Section 1971 are not allowable, because we are not affirming an award. Appellant requests an attorney’s fee in the amount of 33- % percent, hut counsel’s written contract for “services rendered and to be rendered” provides for a fee of 25 percent of the sum recovered. This Court cannot make a new contract for the parties or add to the terms of the contract which they have made. Alexander Smith, Inc. v. Genette, 98 Miss. 2d 455, 462 (Miss. 1957). The judgment will provide for an attorney’s fee of 25 percent of the amount recovered.

Reversed, judgment rendered awarding total permanent disability benefits to claimant, and cause remanded to the workmen’s compensation commission.

Hall, Lee, Holmes, and Arrington, JJ., concur. Kyle, J., dissenting.