Indian Leasing Co. v. Turbyfill

577 S.W.2d 24, 1978 Ky. App. LEXIS 666
CourtCourt of Appeals of Kentucky
DecidedNovember 10, 1978
StatusPublished
Cited by6 cases

This text of 577 S.W.2d 24 (Indian Leasing Co. v. Turbyfill) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Indian Leasing Co. v. Turbyfill, 577 S.W.2d 24, 1978 Ky. App. LEXIS 666 (Ky. Ct. App. 1978).

Opinion

PARK, Judge.

This workmen’s compensation appeal presents the issue of apportionment of liability between the employer and the Special Fund for the consequences of a heart attack suffered by Marshall Turbyfill while employed by Indian Leasing Co. as a truck driver. On April 9,1975, Turbyfill suffered a heart attack as he was working atop an Indian Leasing Company trailer attempting to cover a load of plywood with a heavy tarpaulin. Turbyfill died when he fell 12 feet crushing his skull on the concrete below. The Workmen’s Compensation Board awarded death benefits to Turbyfill’s widow, apportioning liability 95% to Indian Leasing and 5% to the Special Fund. Indian Leasing appeals from a judgment of the Hopkins Circuit Court upholding the award of the board. The Special Fund has not appealed.

I

The essential facts are not in dispute. Turbyfill was suffering from advanced atherosclerosis prior to his death on April 9, 1975. However, his atherosclerosis had not interfered with his ability to perform his job as a truck driver for Indian Leasing. On the day in question, Turbyfill suffered a coronary occlusion resulting in a myocardial infarction. He lost consciousness falling 12 feet to the concrete where he received crushing injuries to his skull and lacerations of the brain.

The medical evidence established that the coronary occlusion and resulting myocardial infarction were the result of Turbyfill’s work exertion acting upon his pre-existing atherosclerosis. The evidence also indicated that the immediate cause of death was the fall which crushed his skull. According to Dr. Charles Cook, the local coroner who performed the autopsy, Turbyfill died instantaneously when his skull struck the concrete. Dr. Cook further testified that the large pool of blood found around Turbyfill’s head indicated that his heart was still pumping when his head struck the concrete. The board also considered the testimony of Dr. F. Albert Olash who was appointed by the board pursuant to KRS 842.121. Based upon his examination of the record before the board, Dr. Olash concluded that death was caused by the fractured skull and brain laceration. He testified that the skull fracture would have caused the death of a person with a normal heart who had not suffered a myocardial infarction. Both Dr. Cook and Dr. Olash attributed Turbyfill’s fall to the myocardial infarction which caused him to lose consciousness while working atop the load of plywood on the trailer.

The board made the following findings of fact concerning Turbyfill’s death:

[a] The work-related incidents were not the sole causative factors in the decedent’s death.
[b] The decedent suffered no active occupational disability immediately prior to April 9, 1975 so as to make an exclusion from the Award.
[c] The work-related fortutious [sic] unexpected harmful change in decedent’s organism and the fall solely and independently attributed [sic] to the death of Marshall H. Turbyfill to the extent of 95%. The Defendant-employer is liable for this portion.
[d] The remaining 5% of the causative factor of the death arose from the arousal of a dormant nondisabling disease or condition (atherosclerotic heart disease) into disabling reality. The Special Fund is liable for this portion.

Dr. Cook did not give an opinion on the percentage of causation of the various factors leading to TurbyfilTs death. Consequently, the appeal of Indian Leasing is based largely on the testimony of Dr. Olash [26]*26who did attempt to apportion the cause of death by giving percentages of causation.

Dr. Olash testified that 90% of the cause of death was attributable to the fractured skull and brain laceration. The remaining 10% of causation was attributed to the preexisting atherosclerosis which, when acted upon by the work exertion, resulted in the myocardial infarction with loss of consciousness which caused him to fall off of the truck. Dr. Olash was also asked whether Turbyfill would have died from the myocardial infarction had he not fallen twelve feet onto the concrete. Dr. Olash testified:

A. I cannot really state that in the individual case. I can say this, that he certainly had significant cardiac disease and in all probability, would have been disabled to a moderate or marked degree on the basis of his cardiovascular disease, should he have lived through the episode of his cardiovascular disease and not have died for any other reason. There is a possibility, still, that he very well may have died on the basis of his cardiovascular disease itself. This is unpredictable, but all I can say is that basically, you have to look at these with the idea of the basic statistics that cover all coronaries and say that he fits into these particular statistics, somewhere, that 50% of the people with myocardial infarctions die with their acute myocardial infarctions, before they get to see a doctor. He had already lived through this particular episode, of those 50% who get to see a doctor, another somewhere in the neighborhood of eight or ten percent die in the coronary care unit in a hospital, whether he would have lived through that or not, I don’t know, so I would say that he probably had 80% to 85% chance of living through his myocardial infarction, since he had already lived through the initial episode of it. (emphasis added)

On the assumption that Turbyfill had not fallen but had survived the myocardial infarction, Dr. Olash testified that he would have apportioned Turbyfill’s disability resulting from the myocardial infarction 75% to the pre-existing atherosclerotic heart disease and 25% to the work connected incident of stress and exertion. It is this latter opinion which forms the basis for Indian Leasing’s appeal.

II

The appeal of Indian Leasing is based upon the premise that liability for his death must be apportioned solely on the basis of the causes of the myocardial infarction. The fall was the result of Turbyfill’s loss of consciousness; his loss of consciousness was the result of the myocardial infarction; and the myocardial infarction was largely the result of the pre-existing atherosclerotic disease. Therefore, Indian Leasing reasons, the board erred in failing to apportion the major share of the liability against the Special Fund. Indian Leasing’s argument overlooks one important fact. Turbyfill’s employment by Indian Leasing placed him on top of the loaded trailer where there was the risk of falling to the concrete below. The dangerous effects of the myocardial infarction were increased by the fact that he was working 12 feet off the ground.

In his discussion of idiopathic fall cases, Larson sets forth the increased danger rule:

When an employee, solely because of a nonoccupational heart attack, epileptic fit, or fainting spell, falls and sustains a skull fracture or other injury, the question arises whether the skull fracture (as distinguished from the internal effects of the heart attack or disease, which of course are not compensable) is an injury arising out of the employment.
The basic rule, for which there is now general agreement, is that the effects of such a fall are compensable if the employment placed the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Reynolds Consumer Products v. William Bell, III
Court of Appeals of Kentucky, 2020
Vacuum Depositing, Inc. v. Dever
285 S.W.3d 730 (Kentucky Supreme Court, 2009)
Georgetown University v. District of Columbia Department of Employment Services
971 A.2d 909 (District of Columbia Court of Appeals, 2009)
Correa v. Rexroat Tile
703 P.2d 160 (Montana Supreme Court, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
577 S.W.2d 24, 1978 Ky. App. LEXIS 666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/indian-leasing-co-v-turbyfill-kyctapp-1978.