McGeorge Construction Co. v. Taylor

350 S.W.2d 313, 234 Ark. 1, 1961 Ark. LEXIS 524
CourtSupreme Court of Arkansas
DecidedOctober 23, 1961
Docket5-2458
StatusPublished
Cited by8 cases

This text of 350 S.W.2d 313 (McGeorge Construction Co. v. Taylor) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGeorge Construction Co. v. Taylor, 350 S.W.2d 313, 234 Ark. 1, 1961 Ark. LEXIS 524 (Ark. 1961).

Opinion

Carleton Harris, Chief Justice.

This is a workmen’s compensation case. Claude Taylor, an employee of McG-eorge Construction Company, on June 8, 1958, collapsed while on a company job, and died from a heart attack. His widow, Mrs. Flo Taylor, sought compensation benefits for herself and two minor children. Three hearings were held before two referees, and the last of the referees denied the claim, finding that Mr. Taylor’s death was not the result of an accidental injury occurring in the course of his employment. Upon review by the full commission, where additional evidence was also introduced, the order of the referee was reversed, and the commission ordered compensation benefits paid to appellee and her minor daughters, holding that claimants had established by a preponderance of the evidence that there was a causal connection between the exertion of the deceased and his fatal heart attack. On appeal to the Circuit Court, the findings of the commission were affirmed. Appeal to this Court has followed.

Proof on the part of the claimant showed that Taylor and his son, Donald, were employed by McGeorge on a job near Benton. The father and son roomed and ate together while working at this location. The father was employed as a motor patrol operator, and the son as a time keeper. There was testimony on the part of Donald to the effect that his father had worked an unusual number of hours during the week preceding his death, and that the motor patrol operated by his father was in poor condition; the witness stated that the machine was driven, and the blade raised and lowered by the use of levers; that these levers would “kick back hard” when strain was put on the blade. The machine was guided by a steering wheel. The motor patrol, used in leveling the road under construction, constantly came in contact with rocks about a foot in diameter, which would likewise forcibly jar the steering wheel, and his father had received a burn on the arm from contact with the wheel. Three witnesses on behalf of the company denied that the machine was defective, though the maintenance mechanic for McGeorge stated that Taylor had made a complaint to him that the blade would not stay in position, and he (the mechanic) fixed it. A discussion of the significance of this testimony is not required, inasmuch as we have held numerous times that it is not necessary that an injury be caused by unusual strain or exertion before it is compensable, but rather, the claim is compensable when the claimant’s ordinary work aggravates a pre-existing condition, and thus contributes to the injury.1 See Crossett Chemical Co. v. Sedberry, 232 Ark. 608, 339 S. W. 2d 426, and cases cited therein.

Taylor testified that on Saturday night, June 7th, his father complained of his arms hurting and aching, was very tired, too tired to eat supper, and young Taylor took his father’s supper to the latter’s room. The next morning they had breakfast together, and separated, Donald going to the ice house to pick up ice, and his father proceeding to the job. The son testified that about 8:30 a.m., he arrived at the job, and found his father sitting on the running board of a pickup truck, with his head in his hands. The father’s clothes were dirty and wet from sweat, and his face was pale and dry. Donald took Mr. Taylor to the hospital, where he was examined by Dr. H. B. Thorn, Jr. Thorn advised the elder Taylor to stay in the hospital, but the latter did not desire to do so, but wanted to go to his home in Waldron. Under these circumstances, Dr. Thorn told Donald to be sure his father stayed in bed three days upon arriving home. The two left in a car for Waldron. On the way, near Pencil Bluff, the elder Taylor died. Dr. G. E. Watkins of Mt. Ida, who examined the body, executed the death certificate, stating that Taylor’s death was caused by a heart attack.

At the hearing before the referee, a letter from Dr. Thorn was offered in evidence by the claimant, while Dr. Howard A. Dishongh testified on behalf of appellants. The last paragraph of Dr. Thorn’s letter states:

“The writer is of the opinion that the coronary occlusion could have been caused by his long hours of work and attending stressful circumstances, though it is impossible to ascertain that his death was a direct result of his work.”

Dr. Dishongh, who did not know Taylor, testified in response to interrogation by appellants’ counsel, that he did not think Taylor’s approximately thirty minutes of work on the morning of June 8th had anything to do with his death. “I see no connection with a man’s heart attack and his work, the actual happening, because there has to be a disease of the inside of those arteries before anything happens.” The further question was asked:

“Now, Dr. Dishongh, if the record reveals further that Mr. Taylor had been operating a motor patrol or a grader doing the same or similar type of work for many years and if the record reveals that for several weeks prior to the onset of his illness, that is, on June 8th, 1958, he had worked for seventy hours a week and if the record reveals that prior to June 8th, 1958, the grader which he was operating was somewhat defective in that the gear would kick out and he would have to hold it in with his hand and things of that type, would those facts, in your opinion, or stated more positively, would you state your opinion as to a causal connection between his terminal illness and death in the work he was doing considering further those facts that I have just outlined?”

The doctor replied:

“I don’t think it would have a thing in the world to do with it, Mr. Riff el. We see just as many of those cases that happen in the bed as we do while they are at work.”

He further stated, “I don’t think the weakening of his physical condition would have anything to do with the heart attack.” Apparently, Dr. Dishongh was not convinced that Taylor had actually died of a heart attack, for he stated on cross-examination, “Long hours might have aggravated a pre-existing condition providing you knew there was a pre-existing condition. * * * if you could bring out the fact that he had that condition prior to this attack, I would answer your question, ‘yes’.” Further: “We have nothing except the history to go on that he died of a heart attack. We are assuming that it happened. He conld have .had a stroke just as easily.” Subsequently, before the commission, Dr. Dishongh was asked:

“Q. But will you say, Doctor, that if he had this condition before he went to work that morning, that his work that morning would have aggravated his condition?
A. If you could positively diagnose it as having been a heart attack, I would have to say yes.”

Following the hearing before the referee, the deposition of Dr. E. Lloyd Wilbur, pathologist, was taken, and filed with the commission. Dr. Wilbur testified that he had read the testimony in the case relative to the circumstances surrounding the occasion when Taylor collapsed on the job near Benton.

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350 S.W.2d 313, 234 Ark. 1, 1961 Ark. LEXIS 524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgeorge-construction-co-v-taylor-ark-1961.