City of Tulsa v. State Industrial Court

1967 OK 171, 434 P.2d 203, 1967 Okla. LEXIS 482
Supreme Court of Oklahoma·Decided September 12, 1967·No. 42117·Published·Cited by 3 cases

Opinion

LAVENDER, Justice.

"¡This is a workman’s compensation case involving a claim for permanent and total disability resulting from a heart attack.

The claimant was awarded compensation for permanent, total disability by the trial court, and on appeal to the State Industrial Court en banc the award was affirmed. The matter has been brought here for review. Parties will be referred to by their trial court designations.

Respondent presents two propositions, either of which it contends requires this court to vacate the award. These are:

“1. The testimony of an expert witness based upon an incomplete and inaccurate history has no probative value.
and,
“2. An order of the State Industrial Court relating a myocardial infarction causally to working conditions one week previously should be vacated as being too remote in time and therefore as contrary to the best legal and medical ■authorities.”

We are of the opinion that under the circumstances ‘..of this matter neither of respondent’s propositions is well taken.

Before stating our reasons for so holding, we deem it necessary to briefly allude to the evidence which appears in the record.

On January 31, 1965 and February 6, 1965, the dates upon which certain alleged incidents occurred which give rise to this matter, the claimant, Felix Vern Barton, was employed by the City of Tulsa as a district fire chief.

On the first date mentioned a tragic apartment house fire occurred in Tulsa, the “London fire,” in which some people lost their lives. The weather was cold, the wind was blowing from the north, and snow was falling occasionally. The claimant was in charge of a fire-fighting unit assigned to the south end of the building. The responsibility of claimant’s unit was to try to prevent the spreading of the fire. This was obviously a severe fire, and because of a fence around the apartments, a shortage of man-power, the extreme cold, and the fact that loss of life occurred, claimant’s responsibility was very great. Added to the mental stress, it was necessary that claimant exert himself physically by assisting his men to pull or carry a fully charged fire hose into the proximity of the burning area, a function which as chief he was not ordinarily called upon to do.

Before the conclusion of the fire, claimant became ill and was sent back to the station by his commanding officer. Various'witnesses testified that from their observation of the claimant at that time he appeared pale. In the words of one witness, “He looked sick * * Claimant complained to the other firemen that he felt bad. The claimant testified that after he had assisted with the hose “at least three times” he “felt a tiredness and tightness in (his) chest and heaviness in (his) arms * * *” ; that back at the station a few minutes later he again experienced the “heaviness” in his chest and arms. That claimant did not work the next two shifts because he did not feel “like it.” That during this period he experienced nausea and a recurrence of the same pains he had suffered on the night of the fire. At 2:00 a. m. on February 6, 1965, while the claimant was at home asleep, he suffered what he described as “terrible pain” in his chest and shoulders, down his *205 arms and into his hands. He was taken by ambulance to a hospital, and an electrocardiogram was taken, the results of which indicated claimant had suffered a disabling injury to his heart.

We note at this point that there seems to be no controversy but that claimant, as a result of his heart condition, is permanently and totally disabled from performing ordinary manual labor, including the labor required of him as a fireman.

Expanding somewhat on respondent’s first proposition as we understand it, respondent contends that the medical witness, Dr. A., when he testified that claimant’s present disability was at least partly the result of claimant’s labors at the “London fire,” did not have a complete and accurate history upon which to base such opinion. Specifically, respondent contends the medical witness did not know of the claimant assisting with the hose, did not know how long claimant had worked at the fire, nor what the weather conditions were at that time and place.

Respondent says then, in effect, that there was not included in the history upon which the doctor based his opinion any evidence of the claimant having suffered an antecedent strain or exertion in the performance of his work which could be (and was by the doctor) assigned as contributing to claimant’s heart attack and present disability.

We are cited to Acme Flour Mills v. Bray (1939), 185 Okl. 516, 94 P.2d 828; Western Good Roads Service Co. v. Coombes (1939), 185 Okl. 599, 95 P.2d 633; and Snow v. Kinta Stripping Company, Okl. (1962), 372 P.2d 34. The most recent of the cited cases, quoting and relying as precedent on the other two cases, contains the following expression:

“ * * * where it is necessary to establish disability by medical testimony, the physician’s opinion must be predicated upon a set of facts substantially in the nature disclosed by the evidence on the hearing.”

In Snow v. Kinta, supra, claimant had lost an eye. The Industrial Court denied an award upon medical testimony which in turn was based on a history which did not include a consideration of the fact the claimant received a steel sliver in the affected eye while on the job. We held that the rule cuts both ways, and if an award is denied upon such faulty medical evidence such order will be vacated by this court as readily as would an award granting compensation if the latter was based on medical testimony relying on a substantially incomplete history.

In Acme Flour Mills v. Bray, supra, the claimant, who was asserting a claim for injury to his groin which required an operation and which allegedly resulted in permanent disability, failed to mention to his physician — witness that claimant had suffered a veneral disease. The award was vacated. We held the history was not substantially complete.

In Western Good Roads Service Co. v. Coombes, supra, the injury was a torn ligament in claimant’s knee. The examining physician and witness for the claimant testified that the history given him by the claimant was that the latter injured his knee when he was “climbing up and down.” The evidence showed that the claimant at the time of his alleged injury was simply kneeling down on one knee to attach the bottom of a sign to a nail, and when he tried to get up he could not. The. examining physician admitted on cross-examination that the act described by the claimant in his testimony before the Industrial Court did not cause the injury, and that in all probability he was injured at some other time.

After carefully reviewing the record, we note that while Dr. A’s notes may have been a little sketchy he was testifying also from memory concerning his understanding of the strain and stresses which the claimant was undergoing on the night of the London fire. For example, he was asked:

“Q. * * * Would the mental strain of supervision of an unusual fire where *206 there was lots of responsibility, would that be considered mental strain that might cause his disability ?

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City of Tulsa v. State Industrial Court, 1967 OK 171, 434 P.2d 203, 1967 Okla. LEXIS 482 (Okla. 1967).

1967 OK 171 (City of Tulsa v. State Industrial Court) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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