Exxon Corp. v. Fleming

Carlton Harris, Chief Justice.

Eugene Fleming, an employee of Exxon Corporation,¹ appellant herein, was injured in the course of his employment on January 10, 1970 when he slipped on ice and received a blow on the back of his head. Medical expenses and compensation benefits were paid to Fleming, who did not return to work. Five months later, on June 12, 1970, Fleming died from an acute myocardial infarct. His widow filed a claim with the Workmen’s Compensation Commission for benefits which claim was controverted by appellant. The referee directed the company to pay all death benefits, medical, funeral expenses, and attorney’s fee. On appeal to the full commission, the award was affirmed with the modification that the payments to the widow be at the rate of $35.00 per week instead of $49.50 per week, as fixed by the referee. The Pulaski County Circuit Court affirmed the opinion of the commission, and from the judgment so entered, appellant brings this appeal. For reversal, it is simply asserted that the commission erred in determining that there was a causal connection between Fleming’s injury and his subsequent death.

The testimony reflected that Fleming was 58 years of age, employed at the time of the injury at Tanglewood Esso Service Station at Cantrell & Mississippi in Little Rock, and appeared in excellent health before the injury. Both his wife and son testified that, prior to the injury, he had never complained of chest pains, nausea, shortness of breath, or pain in his arms. During his stay at the hospital, and after his release, he suffered chest pains and shortness of breath, his condition progressively mowing worse, and he continued to get weaker, he could not walk across the room unless holding on to something; he slept sitting at the table with a pillow in front of him to lean on as he could not lie down.

Dr. Ray Jouett, a neurosurgeon of Little Rock, testified that he first saw Mr. Fleming in the emergency room at Baptist Hospital on January 16, 1970, being called into the case by Dr. Thurston Black, a practicing physician. The doctor described Fleming as “semi-comatose” at that time, agitated, his speech incoherent, and he said the patient would only respond to painful stimulation. The doctor diagnosed a convulsive seizure and a traumatic subarachnoid hemorrhage; medication was commenced to relieve swelling of the brain and prevent further convulsive seizures. The pulse rate was slow and the doctor felt that this was due to some cardiac irregularity, and he said that the type of injury would place a burden on the heart. Subsequent to Fleming’s dismissal from the hospital, Dr. Jouett saw the patient on February 25, at which time the latter complained of extreme dizziness, shortness of breath, and other symptoms which the doctor stated led him to believe “that he had what we call postural hypotension which is the lowering of the blood pressure when an individual stands or turns quickly. He got spots in front of his eyes, his vision would decrease, and the fact that he was unsteady, all made me believe that he was having episodes of hypotension.” A prescription was given to improve circulation, and he again saw Fleming in March and June.²

Dr. Jouett testified with reference to the autopsy report, that report reflecting atherosclerotic cardiovascular disease, pulmonary edema and congestion, chronic passive congestion of lungs and liver, and focal encephalomalacia of the right frontal lobe. These terms were explained by Dr. Jouett who concluded that, in his opinion, there was a relationship between the injury and Fleming’s death, i.e., the injury contributed to the heart attack which resulted in death. When questioned on cross-examination as to the basis for his opinion, Dr. Jouett stated:

“Assuming that such an individual had an underlying heart disease [and this was established] and underwent a period, first of all, of convulsive seizures such as I witnessed on one occasion — he’d also had seizures before he came in — the man was difficult to control. In fact, I believe he had to be restrained in bed. These alone are two things that could aggravate an existing heart condition. Number two, individuals with preexisting arterial disease such as the patient obviously had that we’re talking about, demands more efficient cardiac output to continue his circulation because of hardening of the arteries that develops the arteriosclerosis that has been described. If there is some physiological means or reason in which this circulation is impaired, then this individual is a good candidate to have a stroke, such as a clot in one of the arteries of the brain because of the hardening roughened areas in the brain, and the same is also true of the heart. I think this man had, and this is my opinion, this man had repeated episodes of hypotension or low blood pressure manifested by the symptoms that he kept repeatedly complaining to me of, that is the dizziness, his positional incoordination,the black spots in front of his eyes, all this sort of thing that lets us know that we are dealing with a hypotensive problem. The slowing of the circulation through diseased vessels lends itself to the formation of a thombosis. That plus the fact that I observed, if I may refer to the patient, this man deteriorating in front of my eyes over a period of about four months medically, that’s how I would arrive at that conclusion.”

Under vigorous cross-examination, the doctor stated that, in giving his opinion, he was speaking of possibilities rather than probabilities. Though shown articles written by well known medical authorities wherein they disagreed with some of the views expressed by Dr. Jouett, he still said that he saw nothing in the literature which precluded the fact that a serious brain injury could be an aggravating factor in a pre-existing heart condition.

Dr. Thurston Black saw Mr. Fleming on January 14, 1970 at the request of appellant company,³ and he also saw Fleming while he was in the intensive care unit at the hospital. He said that Fleming was confused, able to talk, but was not entirely rational; that the patient complained a great deal of headaches and dizziness. He later saw Fleming on February 2 after dismissal from the hospital and again saw him on April 21 when he complained of indigestion, a “burning” sensation that he had after exertion. Fleming stated this would cease after he had rested for five or ten minutes. The doctor described the treatment given and he stated that the autopsy reflected a pre-existing heart disease, though there was no way of knowing how long this had been in effect. Black said, assuming that Fleming was asymptomatic as far as heart disease was concerned up to the time of the injury, and assuming that the cardiac symptoms, such as shortness of breath and pains in the chest, developed subsequent to January 10, and based upon his treatment and the history of the patient, it was possible that the brain injury received by Fleming aggravated a pre-existing condition. Further, “I think it is possible that during the time he was having these convulsions that there was an increase in pressure, particularly from the heart, that could conceivably have broken off or gotten a little rough edge on an arteriosclerotic plaque”. He also said that decreased blood pressure would present the possibility of a clot from a pooling of blood or from a slower circulation. Neither doctor stated that there was a probability that the accident triggered or aggravated a pre-existing condition that subsequently caused the death of Fleming; both only used the term “possibility”. And both, under cross-examination, somewhat modified or qualified some statements made on direct-examination — but the fact remains that both considered the connection between the injury and death to be a distinct possibility.

Appellant contends that the testimony of the doctors does not constitute substantial evidence to support an award but we disagree. The same contention was made in the case of Kearby v. Yarbrough Brothers Gin Co. and Southern Farm Bureau, 248 Ark. 1096, 455 S. W. 2d 912 where the doctor who testified on behalf of the claimant gave rather indefinite answers, several times, while discussing cause and effect, using the expression “could cause” or “might cause”, and not stating a conclusion on the causal relationship between the work and the heart attack with language stronger than there “could be” a connection. We held that the use of these expressions or similar phrases would not bar a finding of causal connection, provided that there was other evidence supporting the conclusion.

In the present case, in addition to the statements of the doctors, one circumstance is conspicuous, viz., that Fleming prior to the brain injury, was working every day, had never suffered from chest pains, shortness of breath, nor had other symptoms indicative of a diseased heart or arteries. The proof is clear that subsequent to the accident, these symptoms were much in evidence and the condition they reflected grew progressively worse from day to day. In fact, Dr. Jouett stated that he observed “this man deteroriating in front of my eyes over a period of about four months medically”. Let it also be remembered that there was no medical evidence to the effect that the injury did not, or could not, contribute to Fleming’s death, and this despite the fact that one of the doctors testifying had served as the company’s doctor in examining employees.

We hold that there was substantial evidence to support the findings of the commission.

Affirmed.

Byrd, J. concurs; Fogleman, J. dissents.

1 At that time Humble Oil & Refining Company.

2 Fleming was to see the doctor on May 11 but was unable to go to the office because of chest and abdominal pains.

3 Dr. Black testified that he examined the employees of appellant.