Neldare v. Schuylkill Products Co.

107 So. 2d 487, 1958 La. App. LEXIS 811
CourtLouisiana Court of Appeal
DecidedNovember 21, 1958
DocketNo. 4683
StatusPublished
Cited by5 cases

This text of 107 So. 2d 487 (Neldare v. Schuylkill Products Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Neldare v. Schuylkill Products Co., 107 So. 2d 487, 1958 La. App. LEXIS 811 (La. Ct. App. 1958).

Opinion

FRUGÉ, Judge ad hoc.

This is an appeal by an employer from a judgment awarding one of its employees suffering with heart disease compensation for total and permanent disability. The employee has filed an answer to the appeal asserting that the compensation rate should be $35 or alternatively, in the sum of $34.-13 instead of $32.50 as found by the trial court.

[488]*488The questions presented by this appeal are the following:

1. Whether the evidence supports the trial court’s finding that the appellee suffered an accident within the meaning of the Workmen’s Compensation Law.

2. Whether there is substantial evidence in the record to support a finding that the appellee is totally disabled.

3. Whether the rate of compensation of an employee who works five days for two two-week pay periods and works five and six days for two two-week pay periods should be computed on a five day week or six day week.

Plaintiff-appellee, Arthur Neldare had been employed by the defendant-appellant, Schulykill Products Company, since 1950 at the cinder hearth in its plant in Baton Rouge. Plaintiff’s work consisted in the filling of trays which measured three feet by five feet and about eight inches deep with battery plates of which thirty to thirty-five such scoopsful would be required, eight shovelsful of pot dross (a heavy substance) and then eighteen shovels or scoopsful of mud. These trays are taken by the employee with a tow motor to a windbox where they are placed under intense fire which dries the contents in about twenty minutes. While the trays are drying under the fire, the appellee must rake the substance, stirring it constantly. When the mud and other substance cakes, the operator must rake vigorously to loosen it. After the contents are dried, the trays are removed, and the operator empties and refills the trays from piles which are about seventy-five feet away from the fire. The operation is repeated over and over for eight hours a day.

On December 4, 1956 plaintiff was physically examined by Dr. James Lorio, defendant’s doctor, and his heart found to be negative or normal. Every ninety days Dr. Lorio visits the plant and takes blood tests of each employee.

On January 9, 1957 at between 8:30 and 9:00 p. m., while the plaintiff was in the act of vigorously raking the contents of one of the trays by the fire, he felt his heart quivering. He stopped what he was doing, left the fire and went for some water and rested for a while. At that time a co-employee, Willie Randall, came by on his way to drink water and stopped to talk with the appellee; the appellee told him about his heart hurting him, whereupon Randall advised taking something for it. After resting for a while, the plaintiff completed his shift, taking it easy the rest of the period. He did not tell his foreman, who was not nearby, believing the matter not to be serious. Upon reaching home he told his wife but she too believed it was something he had eaten. The next day after resting all day, he went back to work at 3:00 p. m., and that night experienced similar symptoms. He took it easy that night, intending to go to the doctor the next day, his day off. He went home. Upon arriving home he again complained to his wife about his chest pain, did not eat and went to bed. Next morning on Friday, his grown-up son took him to Dr. Lorio, the company’s doctor. Dr. Lorio advised milk of magnesia and rest and to return Monday. That night, when at the table preparatory to eating, upon drinking out of a glass of cold cool-ade he fainted and was carried to his bed. He slept the rest of the night. His wife called Dr. Lorio, who made arrangements with the hospital but he told her that if he was sleeping to let him sleep and tell him to go to his office next day. Next day his son took him to Dr. Lorio’s office and the doctor sent plaintiff to the hospital where he remained for some twelve days. At Dr. Lorio’s request Dr. Selser took a cardiogram of plaintiff’s heart. The cardiogram indicated that plaintiff was suffering from impure flutter and auricular fibrillation. Auricular fibrillation has been defined in layman’s language as rapid beating of two chambers in the heart known as the auricles, which causes the heart to beat at a too rapid pace [489]*489or out of rhythm. After being treated at the hospital for some twelve days he was sent home and continued under Dr. Lorio’s care. Dr. Lorio advised him to avoid hard work and especially avoid physical exertion such as manual labor for an indefinite period. The plaintiff then went to Dr. John B. Stotler, a heart specialist, under whose care he was still at the date of trial and under whose care still remains at the present time.

Plaintiff maintains that he is totally disabled due to a malfunctioning of the heart known as auricular fibrillation and dyspnea or shortness of breath.

.The lower court found and we believe correctly so that the plaintiff suffered an accident within the meaning of the workmen’s compensation law on the night of January 9, 1957 when, while in the act of strenuously raking the hardened substance drying in the trays under intense fire and heat, his heart started quivering and fluttering. It is the considered opinion of Dr. John D. Stotler, heart specialist, that this happening marked the onset of the auricular fibrillation. It is the opinion of all the doctors who testified in this case that the plaintiff, unknowingly to him, suffered arteriosclerosis for some time before January, 1957. It is the opinion of Dr. Stotler that the strenuous work plaintiff was doing, surrounded by high temperatures one moment and then cooler temperatures 'would be conducive to precipitating or causing the onset of flutter and fibrillation in a heart affected with sclerosis. Dr. Stotler further states that in the two particular areas in which we are interested in here something goes wrong or goes haywire with this pace maker and it starts sending out innumerable, practically speaking, a greatly increased number of impulses so that the atria are attempting to contract at anywhere from two hundred up to six hundred times per minute. The ventricles, the larger chambers, cannot pump that fast so they contract or pump at more or less their own rate which is usually grossly irregular, such as was the case in the plaintiff at the time of the first symptom. In the opinion of this heart specialist the fibrillation was the end result of the accident which first manifested itself by the quivering and fluttering of the heart on January 9. He states:

“I don’t feel that we have to say that. Not only do I think, but this is an accepted opinion, that an attack of arrythmia, irregular heart beat, whether they be fibrillation, flutter or runs of premature beats, when they occur in a person who has a heart disease they at first come in what we might call spurts or attacks, the attacks become more frequent as time goes on and last longer as time goes on until it is a permanent thing, so it is just as easy to say and more iteological (sic) to say that Arthur was having his onset or premature beats or what-have-you at the time he first had his symptoms until finally a point was reached where it was more or less continuous until he became treated.”

Dr. Selser, defendant’s expert, concurred when he was asked:

“Q. The palpitation and premature beats would be a sort of a forerunner of flutter or fibrillation, wouldn’t it? A. It could be, not necessarily.” (tr-60).

Further answering the question, he said:

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Bluebook (online)
107 So. 2d 487, 1958 La. App. LEXIS 811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neldare-v-schuylkill-products-co-lactapp-1958.