This is an action to recover workmen's compensation on account of the death of Howard Wallace Brian. The beneficiaries are the surviving widow and two minor children. The defendants are Brian's employer, Retsal Drilling Company, Inc., and its compensation insurance carrier, Employers Casualty Company. The deceased was an oil field worker. He died about 3:00 o'clock p. m. June 23, 1957, of a coronary occlusion about one hour following his performance of strenuous manual labor at one of the employer's oil wells located near Belcher, Caddo Parish, Louisiana.
The position of plaintiffs is that the strenuous exertion and exposure to excess heat from the sun's rays aggravated and worsened a pre-existing heart condition and brought on, produced and/or precipitated
The primary issue for determination is, therefore, one of causal connection between the work performed by the deceased in the course of his employment and his death. In stating the issue, defendants submit for answer the question, did the work allegedly performed by the deceased earlier on the day of his death cause, precipitate or bring about the heart attack which resulted in his death at a time when he was not engaged in the performance of his work and was not in the course or scope of hie employment.
The facts as established by the record may be briefly summarized. The deceased, who was 42 years of age, resided near Henderson, Texas. His employment was that of a pumper in the oil fields, in addition to which he was given certain other responsibilities, particularly of a supervisory nature. His work could not be said to be ordinarily strenuous.
A statement as to decedent's previous health appears appropriate. On the afternoon of April 29, 1955, after using a power lawn mower, Brian experienced an attack of coronary artery disease, angina pectoris, immediately following which he was seen by Dr. Paul E. Suehs, a general practitioner and cardiologist of Henderson, Texas. On that occasion Brian complained of precordial pain radiating upward into his jaw and outward into his left arm. On arriving at the doctor's office he had quieted down but was pale. The attack, as stated, followed exertion, but the Doctor was not of the opinion there was an occlusion at that time. Bed rest was prescribed, as were certain sedatives and nitroglycerin tablets for chest pains. Other episodes or attacks followed, some of which were preceded by effort. A more serious attack, however, occurred July 11, 1956, when his condition was shown to have become generally worse, leading the Doctor to suspect on that occasion an occlusion or clot had occurred. History of exertion preceding the attack was given the Doctor. Similar treatment was administered, with instructions as to rest, avoidance of strenuous labor and the summer heat. After several days Brian again resumed his work, although frequently experiencing pains in his chest, which he relieved by taking a nitroglycerin tablet prescribed by the Doctor for that purpose.
The events transpiring on the Sunday of Brian's death may likewise be briefly stated. On that day it was his purpose and mission to inspect an oil well of his employer located near Belcher, Louisiana, particularly as to whether it was pumping oil. Accordingly, accompanied by his wife, Brian left their home in a pick-up truck owned by his employer about 9:00 or 9:30 a. m. and drove to the oil well, arriving near noon, after having stopped for about 20 minutes for a picnic lunch, consisting principally of fried chicken and eggs. On completion of the approximately 100 mile trip, Brian appeared in good spirits and was apparently normal. On arriving at the well, he first climbed a ladder 10 or 12 feet high to the top of a storage tank and ascertained that, although the machinery was in motion, the pump was not functioning.
His work, which was very strenuous in nature, consisted of an adjustment on the machinery and the spacing of the pump, at which Brian worked for about two hours. The temperature was 90 degrees or above. Much of the work was overhead with a 36-inch Stillson wrench weighing approximately 19 pounds. He was required to extend his hands and arms over his head and do this work with this heavy tool, necessitating at times the expenditure of his every effort and strength in alternately loosening and tightening the large nuts which hold the pump and entire string of rods to the end of the beam, in order that the pump might be alternately raised and lowered in an effort to dislodge any obstruction which may have accumulated in the pump. The operation required cutting
Brian's work was witnessed by his wife. She testified that during the course of her husband's labor he became wet with perspiration and pale and experienced shortness of breath. She noticed he grasped his chest in the area of his heart with his hand. Although his efforts were unsuccessful in getting the pump to properly function, they got in the truck to return home.
On the return trip Brian appeared unusually quiet and pale. On reaching Little Cypress Creek, about a mile distant from Jefferson, Texas, they stopped to fish as planned before leaving home. The wife proceeded a short distance ahead of her husband. After catching one or two smaller fish and then a much larger one, he called his wife to come to his location. Immediately thereafter and before she could do so, he crumpled up and fell to the ground. He struggled for breath, first turned pale and then blue, and died within approximately 15 minutes after arriving at the scene. Dr. William S. Terry, a general practitioner of Jefferson, Texas, was called. Brian was dead on his arrival. After making an examination and interrogating those witnessing the tragedy, the Doctor concluded death resulted from an acute coronary occlusion within about three minutes of the onset of the attack. The death certificate so stated. No autopsy was performed.
Six physicians gave expert medical testimony in the case. On behalf of plaintiff these included Dr. Paul E. Seuhs, a cardiologist of Henderson, Texas, the deceased's personal physician, and Drs. Frank T. Dienst, Jr., of Shreveport and Rufus Hale Craig of Alexandria, specialists in internal medicine as well as cardiology. On behalf of defendants appeared Dr. Terry and Drs. H. D. Tucker, a cardiologist, and William Mims Allums, a specialist in internal medicine and cardiology, both of Shreveport. Only Drs. Dienst and Allums appeared personally in court; the others testified by deposition.
Dr. Seuhs first testified as to Brian's previous medical history. His findings were the result of consultation and examination following two previous serious heart attacks and in the course of his treatment as the deceased's personal physician. Following each of said attacks and during the course of treatment thereafter Brian was instructed against over-working or strenuous work and avoidance of exposure to excessive heat. The Doctor testified that effort and exertion had a deleterious effect upon one with coronary artery disease in that it increased the work load of the heart. That the character of work done by Brian prior to but on the day of his death was contrary to his instructions and that "it could precipitate the attack" and stated that attacks of that character more frequently follow strenuous exertion.
But, without an autopsy, Dr. Seuhs was skeptical of the proof necessary to establish the fact of the exertion bringing on the fatal attack. From the history and information furnished the Doctor, his diagnosis, as was that of Dr. Terry, was that Brian died of a coronary thrombosis or a sudden occlusion. The Doctor further expressed the opinion that deceased could have sustained damage to his heart while working, the symptoms subsiding and later reoccurring. We are informed by his testimony that this remission of pain and other symptoms may have been induced by the taking of a nitroglycerin tablet, but not necessarily so, and that the lapse of an hour following the cessation of labor to the fatal attack was not unusual or of any particular significance as concerns a causal relationship between the effort expended and the fatal heart attack.
Dr. Dienst, from the facts as presented to him in the nature of hypothetical questions,
the Doctor answered:
and continuing in elaboration thereof further stated:
In describing the mechanism through which a coronary occlusion may be brought about, the Doctor gave this explanation:
He was then asked:
and his reply was:
He explained that exertion created an increased demand on the heart for blood ranging between 3 and 20 percent during times of strenuous exertion and the pressure, as the result thereof, on the blood vessels, would cause a breakdown of the small capillaries within the walls of the arteries themselves, with the effects as heretofore stated.
In answer to the hypothetical question presenting the facts as aforesaid to Dr. Craig, he expressed an agreement with the diagnosis as made by Dr. Terry as to the cause of Brian's death, and further that his opinion was that the fatal attack was caused and precipitated by the exertion of Brian in connection with the work done by him at the oil well.
In describing the mechanism which in his opinion caused the coronary occlusion
Dr. Craig made it clear there was a causal relationship between Brian's work and the condition producing or causing his death. He was asked:
And, with reference to the lapse of approximately an hour from the last performance of labor to the fatal attack, the Doctor found nothing unusual in a remission of symptoms for such a period of time. Although Dr. Craig was in agreement with Dr. Terry as to the cause of Brian's death, he points out if it were not a coronary occlusion, it was most certainly a form of heart attack and that the exertion was the precipitating factor. In this connection he gave this testimony:
As opposed to the aforesaid opinions, defendants contend that Brian's heart attack was but the natural, inexorable and unavoidable culmination of a diseased process occurring irrespective of the work performed by him under the direct rays of the sun on a hot day.
Dr. Terry, on behalf of the defendants, gave this testimony:
It is noted that Dr. Terry's opinion was predicated, at least, in part, on the assumption that Brian was doing the kind and character of work he had been doing for several years. The record establishes that the work done was of a very strenous nature and character in contrast to the non-strenuous work usually performed by him. On the character of the work being explained to the Doctor, he gave this testimony:
The gist of Dr. Allum's opinion there was lack of causal connection between Brian's exertion and the cause of his death was given in this testimony:
A similar opinion was expressed by Dr. Tucker, who expressed the further opinion that Brian had a coronary artery disease, a progressive type, finally taking its toll of death by an occlusion or thrombosis in the great majority of cases, the occurrence of which could not be associated with effort as a causal effect. He was of the opinion, however, that in a very small percentage of cases severe effort may precipitate death by virtue of an ischemic area of muscles of the heart, which would produce an arrythmias, either a cardiac standstill, cardiac arrest or ventricular fibrillation, from either of which death might result. Rather than a precipitating factor, his opinion was that the exertion and attack were merely coincidental. The Doctor stated, however,
The record makes it clear that Brian had a pre-existing heart condition; that the work performed on the date and immediately prior to his death required the expenditure of strenuous physical effort for about two hours, while he was exposed to the direct rays of an early afternoon sun. Neither do we find any reason, as counsel obviously did not, to question the veracity of Mrs. Brian, who was present with her husband during the whole of the day and witnessed the performance of his labor and the tragedy of his death, or the truthfulness of her testimony as to his efforts to adjust the pumping equipment and space the oil pump and get it in operation and that he perspired most freely, became pale and clutched with his hand his breast in the area of his heart, or that thereafter they drove 35 or 40 miles, consuming approximately 45 minutes time, during which he was unusually quiet and continued pale.
While the opinions of the medical experts are not in complete accord as to whether there may, or does exist, a causal relationship between strenuous effort and coronary occlusion or coronary artery disease, or specifically as to whether or not Brian's heart condition became aggravated or worsened by his strenuous effort and that thereby the fatal attack was brought on resulting in his death. However, from a careful study of the whole of the testimony, the conclusion is inescapable that the work Brian did and the effort expended in an unsuccessful attempt to get the oil well pump operating was sufficient to aggravate his pre-existing heart condition and to bring about and precipitate the fatal attack. Some of the experts had definite opinions that the labor performed, particularly in the manner and under the conditions it was performed, precipitated the attack, causing his death. Others were of the opinion there existed ample cause for such precipitation, that is, there was sufficient basis for a causal relationship between the work done and the cause of death. Still others were of the opinion that in a vast majority of cases there was no causal connection between strenuous labor or exertion and an attack of coronary occlusion. These, however, conceded the possibility that Brian's labor may have induced
In situations of this character, the most positive statements of the medical experts are but expressions of their best opinions. In accepting this character of testimony we are only giving effect to the rule as to the requirement in civil cases that the proof must be supported by a preponderance of the evidence. In so doing we are not resorting to the realm of conjecture or speculation or indulging in possibilities or probabilities. We find this discussion in Larson's Workmen's Compensation Law, Vol. 2, § 80.32, p. 322:
Our brethren of the First Circuit Court in Sharp v. Esso Standard Oil Co., 72 So.2d 601, 609-610, commented on the subject and stated:
In the language of the medical profession, the qualifications necessarily inherent in the expression of the expert's opinion do not necessarily detract significantly from the meaning of the terms employed. The general rule as to the sufficiency of the proof of causal relationship between strenuous employment and disability or death is contained in the following quotation from Malone's Louisiana Workmen's Compensation, § 256, p. 314-315:
100 C.J.S. Workmen's Compensation § 555(12), p. 706 states the rule thusly:
In the comparatively recent case of Sepulvado v. Mansfield Hardwood Lumber Co., La.App., 75 So.2d 529, a case similar in character to the instant case, the evidence established that the employee's death from coronary thrombosis had been caused by physical exertion attending his cutting logs with a cross-cut saw in the hot sun. There this court quoted, approved and followed the general rule as quoted from Professor Malone's Louisiana Workmen's Compensation Law as to the sufficiency of the evidence in such cases justifying an award of compensation. The rule was likewise followed in the latter case of Roberson v. Michigan Mutual Liability Co., La.App., 90 So.2d 465. In these two cases, the jurisprudence was generally reviewed pertaining to the required proof as to causal relationship between exertion and strain and heart disease and/or heart failure. The inconsequential difference between the instant case and the Sepulvado case is that here the fatal seizure occurred an hour after decedent's strenuous work, whereas in the Sepulvado case the fatal onset occurred while the employee was actually performing duties of his employment. Brian, however, did not suffer the fatal seizure on the job but an hour later. Sepulvado experienced a remission of symptoms, however, after his first attack. It was while on the job, however, Brian suffered almost every conceivable clinical manifestation of a person with heart distress. That the fatal attack occurred an hour later is unimportant and inconsequential.
A repetition of the review of the jurisprudence contained in the Sepulvado and Roberson cases is deemed unnecessary. However, it may be pointed out that in Hemphill v. Tremont Lumber Co., 209 La. 885, 25 So.2d 625, the employee was shown to have died about 30 minutes after he carried two 95-pound rolls of roofing material up a 12 or 13 foot ladder on a warm day in April. On coming down, the employee, wet with perspiration, took a drink of ice water and sat down in the shade, holding his hand over his heart, declaring to his co-workers he had a pain in that region. The trial court rejected claimant's demands for compensation and this court affirmed that ruling. 24 So.2d 635. On certiorari the Supreme Court stated:
In Lampkin v. Kent Piling Co., Inc., La.App., 34 So.2d 76, 77, Frank Lampkin, the employee, 42 years, who enjoyed apparently good health, with no indication of an existing heart ailment or high blood pressure, was stricken and died of coronary sclerosis, a narrowing or closing of blood vessels supplying the heart, while employed as a fireman. On reporting for duty, Lampkin first cleaned out the fire boxes, requiring five or six minutes time, after which he walked upstairs six or seven feet to a platform where he fed shavings into the furnace by means of a shovel. He was near the open door of the furnace when stricken. In commenting upon and evaluating the testimony, the court stated:
The conclusion is, it is now well settled in medical science, that exertion and heat characteristic of heavy physical duties can cause severe injury to a weakened heart or blood vessel and that the issue of causal relation is now usually resolved into the sufficiency of the alleged exertion and overheating to injure the heart or blood vessel in the specific case. Here no conclusion would be compatible with the testimony except that the strenuous labor and exertion of Brian on the day of his death and immediately prior thereto was sufficient to aggravate his pre-existing heart condition and to precipitate the fatal attack.
The conclusion is likewise irresistible that causal relationship has been established between the deceased's strenuous labor and his death. That the deceased was afflicted with a pre-existing heart condition is undisputed, and, by the great preponderance of the medical testimony, it is conceded that the deceased, on the day of his death, engaged, for about two hours in midday, in the performance of unusually strenuous labor, not ordinarily or customarily done; that such exertion was sufficient and adequate to aggravate the aforesaid heart condition and to precipitate and bring on the attack or occlusion of which he died within approximately an hour after cessation of his work, such being sufficient to produce the condition causing decedent's death and death following shortly thereafter. In view of the medical testimony, the conclusion is inescapable that the employee's death was precipitated or brought about by his strenuous labor in the hot sun and is, therefore, compensable. Accordingly, plaintiffs should recover compensation as prescribed in the statute, LSA-R.S. 23:1021 et seq., and their attorney's fees fixed accordingly.
In the event of plaintiffs' recovery, no contest was raised as to the amount of compensation payable nor as to its apportionment among the claimants. While the marriage of the daughter terminated the compensation payable to her, where the percentage of wages otherwise due the widow and remaining child or children entitle them to the maximum compensation, they shall be paid at the maximum rate, even though one of the claimants was disqualified from receiving additional compensation. Litton v. Natchitoches Oil Mill, 201 La. 37, 9 So.2d 445; Id., La.App., 8 So.2d 751; Gillis v. New Orleans Public Service, Inc., La.App., 14 So.2d 112; Lajaunie v. Rex Ice Cream Co., La.App., 62 So.2d 203.
For the reasons thus assigned, and finding that the claimants are entitled to compensation as claimed, the judgment appealed is annulled, avoided, reversed and set aside, and,
It is now Ordered, Adjudged and Decreed there be judgment herein in favor of the plaintiff, Mrs. Lorraine B. Brian, individually and as natural tutrix of the minor, Roxanne Dinkens, against the defendants, Retsal Drilling Co., Inc., and Employers Casualty Company, in solido, for the full sum and weekly compensation of $26.25 per week from June 23, 1957, to December 25, 1957, and for the full sum and weekly compensation at the rate of $35 per week from December 25, 1957, for the period of their dependency, not, however, exceeding 400 weeks, together with five percent per annum interest on each of said installments from its maturity until paid.
It is further Ordered, Adjudged and Decreed there be judgment herein in favor of plaintiff, Mrs. Effie Louise Brian Duke,
It is further Ordered, Adjudged and Decreed that the defendants pay all costs, including the expert witnesses' fees, hereby fixed and taxed as costs in the sum of $50 each, as well as the cost of this appeal.
It is further Ordered, Adjudged and Decreed that plaintiffs' attorney's fees be fixed in accordance with the provisions of the statute effective as of the date of the employee's death at 20 percent of the amount which may be collected and/or recovered herein, the fee, however, not to exceed $1,000.
Reversed and rendered.
HARDY, J., absent.