This case comes to us on petition to transfer from the Appellate Court under Acts 1933, ch. 151, § 1, p. 800, being § 4-215, Burns' 1946 Replacement. See, United States Steel Corporation v. Dykes (1958), 148 N.E.2d 844, for opinion of the Appellate Court.
This is an appeal from an award of the Industrial Board (one member dissenting) awarding appellee full death benefits under the Indiana Workmen's Compensation
Appellee's deceased husband was employed as a "grinder" in appellant's steel mill in Gary, Indiana. During working hours, on September 7, 1954, he suffered a fatal heart attack.
The Board, among other things, found that on the 7th day of September, 1954, one John Dykes, plaintiff's decedent, was in the employ of the defendant, at an average weekly wage of $86.50; that on said date he sustained personal injury, by reason of an accident, arising out of and in the course of his employment with the defendant; that the said accidental injury consisted of exertion, which precipitated a coronary occlusion, resulting in his death on said date.
The sole error assigned is that the award of the Industrial Board is contrary to law.
An examination of the record to ascertain whether the evidence is sufficient to sustain the award discloses the following: The decedent had been employed on the same job as a "grinder" for "eight or nine" years. He was about fifty-five years of age, was well developed physically, and weighed 160 pounds at the time of his death.
The work of a grinder consists of taking defects such as slivers, seams, cracks and faults out of steel. This is done by a machine known as a grinder and shaped like a rolling pin. It is approximately 22 1/2 inches long with an emery wheel, 6 to 6 1/2 inches in diameter. The weight of the grinder was estimated by various witnesses at 12 to 35 pounds, and it is powered by electric motors.
The operator is required to stand while performing his duties. The steel bars upon which he works are placed on a supporting rack about waist high to the
On the morning of the decedent's fatal heart attack he appeared jolly and gave no indication of any mental or physical disturbance.
He worked until about 10:45, when he left his job and went to the "stock shearer shanty." About five or ten minutes later another worker came over to the inspector who had relieved the decedent and told him that Dykes (the decedent) was sick and lying on the floor in Bay 2. Another worker who was stationed about 35 or 40 feet from the decedent testified, as a witness for the petitioner-appellee, that he observed the decedent returning from the water fountain and when he got about halfway across Bay 2 he was staggering and "had both hands up against his chest." Seeing that he was "going to fall" the worker ran to him and eased him down to the floor. He then called for the ambulance but Dykes was dead when it arrived. The place where decedent fell in Bay 2 was about 75 feet from his station where he worked.
On the morning when decedent suffered the fatal heart attack he was on his regular job doing the same type of work in the same manner as he had been doing for more than eight years. However, the undisputed evidence is that the work he was doing on that particular day was "slowed" and less than usual.
On cross-examination Dr. Korn testified, in pertinent part, as follows:
Based upon a set of facts, as stated in a hypothetical question, and propounded by the attorney for appellee (most of this question was withdrawn) Dr. George Lewis, a witness for plaintiff-appellee, testified on direct examination, in part, as follows:
On cross-examination Dr. Lewis testified, in pertinent part, as follows:
Dr. Peter Stecy, also a witness for the plaintiff-appellee, testified, on direct examination, substantially as did Dr. Lewis, and in answer to the same hypothetical question, said:
We recognize the well-established rule that the Industrial Board is the trier of the facts and its decision thereon is binding upon this court if it is sustained by competent evidence. Clark v. Hughey (1954), 233 Ind. 134, 138, 117 N.E.2d 360.
The question which we must then determine is whether or not the evidence in the record here is sufficient to sustain the finding of the Board, i.e., Is the evidence competent to show that decedent died as the result of an accident arising out of and in the course of his employment or that there was a causal connection between his heart attack and his employment?
The causal question here is: Was the inability of decedent's heart to meet the demands, i.e., the "coronary insufficiency," caused by a change, i.e., an increase in the work load beyond the heart's ability to function, or by a decrease in the
The uncontradicted evidence here is that decedent's heart was steadily and surely losing its functional ability, but there is no evidence whatever of any increase in the work load or of any extra exertion. In fact, the unchallenged evidence is that the work load was lighter on the morning of the fatal attack.
The autopsy herein disclosed no rupture or detached plaques or clots in the coronary blood vessels. The myocardium was dark in color which indicates that the heart failed because of unoxygenated blood due to a long-standing coronary disease. The autopsy revealed no evidence of the sudden worsening or aggravation of that disease.
The only evidence that there was an aggravation of a pre-existing disease is the opinion of Dr. Lewis and Dr. Stecy expressed in answer to a hypothetical question, heretofore mentioned, the greater part of which was withdrawn from their consideration and not restated.
It appears from the testimony of Dr. Lewis and Dr. Stecy that the theory upon which appellee has based her case is that decedent's heart was gradually deteriorating to the point where it could not meet the demand made upon it by his normal and usual activities; and since the activity in which he was engaged on the morning of his fatal attack was his usual and customary work, then the work caused the coronary insufficiency.
This theory is further supported by a statement of appellee which appears in the argument section of her brief, as follows:
The cases of Slaubaugh v. Vore (1953), 123 Ind.App. 497, 110 N.E.2d 299; and U.S. Steel Corp. v. Douglas et al. (1955), 125 Ind.App. 212, 123 N.E.2d 899, and cases therein cited are relied upon to support appellee's theory.
While this court denied transfer in the Slaubaugh Case it does not necessarily follow that we approved either the result or the reasoning by which the result was reached.
The Slaubaugh Case is not controlling here. Neither is it persuasive because it is clearly distinguishable from the case at bar. In that case the Industrial Board found that the accident (attack) was caused by extreme exertion, and such finding is supported by competent evidence.
There is neither contention nor evidence here that the decedent Dykes, on the morning of his death, was engaged in anything except his usual work, which he was performing in the usual and customary manner. However, there is evidence, to which reference has already been made, that the decedent's work was, on
There was no petition to transfer filed in the case of U.S. Steel Corp. v. Douglas et al., supra (1955), 125 Ind.App. 212, 123 N.E.2d 899. While this court is not bound by the ruling and reasoning of the Appellate Court in that case, that court there pointed out that there was evidence from which the Board could draw the reasonable inference that the decedent, on that occasion, was, in fact, moving faster and with more sustained continuity than usual, "that decedent's exertion in the doing of his work on that final morning of his earthly life was, in fact, greater than usual" and that the Board could reasonably "conclude that the plaques which broke loose and floated, as a foreign body, in the blood stream, clogging the passage of the blood to the heart, would occasion a lesion in the arterial vessels."
From this statement it appears that in the Douglas Case there was evidence that the decedent's pre-existing heart trouble was aggravated by an unusual exertion occasioned by an increased work load on the morning of his fatal heart attack. Even if the Douglas Case were controlling here, it is clearly distinguishable from the case at bar because there is no evidence in this record such as is present in that case.
In each of the above instances the fatal heart attack was preceded by some type of untoward or unexpected incident, or there was evidence of the aggravation of a previously deteriorated heart or blood vessel.
We recognize the well-established rule that this court will not disturb a finding of fact made by the Industrial Board unless the evidence, with all inferences reasonably deducible therefrom, is of such conclusive nature as to force a contrary conclusion. Heflin v. Red Front Cash & Carry Stores, Inc. (1948), 225 Ind. 517, 521, 75 N.E.2d 662.
Under the evidence in this case decedent's fatal heart attack might have happened while he was working, driving his car, sitting or even sleeping. It happened while he was working at his usual occupation; and in such event it could be said that his heart failed because it could not handle the load then demanded of it. In our opinion it was not the intention of the Legislature that such happening be considered a "death by accident arising out of and in the course of the employment." Acts 1929, ch. 172, as amended, being § 40-1202, Burns' 1952 Replacement.
The court of appeals of New York in considering a similar situation as that presented by the record here, in Burris v. Lewis (1957), 2 N.Y.2d 323, 160 N.Y.S.2d 853, 141 N.E.2d 424, at page 426, succinctly stated as follows:
The mere showing that he was performing his usual routine everyday task when he suffered a heart attack does not establish a right to workmen's compensation because there was no event or happening beyond the mere employment itself.
For the foregoing reasons the award of the Industrial Board is contrary to law and must be reversed.
The judgment of the Industrial Board is reversed with instructions to set aside its award and proceed further in accordance with the views herein expressed.
Achor, Arterburn and Emmert, JJ., concur.
Landis, J., concurs in result.
NOTE. — Reported in 154 N.E.2d 111.
"Frequently it is difficult or impossible to evaluate the significance of the particular episode of stress or injury that the disabled person stipulates (claims) as the precipitating cause of his disability. If the event stipulated is clearly unusual and if it was followed immediately by heart (cardiac) failure, the relationship may be reasonably clear. Often the event stipulated is not sufficiently unusual to distinguish it from other nonoccupational stresses that may have occurred about the same time. Thus, it may be alleged that coronary insufficiency or heart failure was precipitated by lifting a 40 lb. box from an overhead shelf. Such an exertion may have been no greater than that of sneezing or straining at stool, either or both events may have had the same relationship to the onset of heart (cardiac) disability as did the stress of lifting the box. In circumstances of this type no one can assert with propriety that any one of these episodes of stress was more likely than any other to have provided the excess work load that caused the diseased heart to fail."