Appellant's husband, Gordon Thornton, was employed as a painter by appellee, Brown & Root, Inc. In the course of such employment he climbed a tower approximately 170 feet high and then used a guy line to pull a 100 pound block and tackle about 160 feet up the tower. At this point Thornton died of a heart attack which was diagnosed by Dr. Kennard, who performed an autopsy, as "multiple coronary artery occlusions with extensive destruction and damage to the heart muscle (infarction)."
The Alaska Workmen's Compensation Board denied appellant's claim for compensation on account of her husband's death, stating as follows:
Appellant brought this action in the superior court to set aside the Board's order denying compensation. The court granted summary judgment in favor of appellees, thus affirming the decision of the Board. Appellant has now appealed to this court contending that the Board's decision and the court's affirmance of the Board's decision were erroneous.
In essence the Board found that Thornton's death was not work-connected — that it was not connected with any of the incidents of his employment.
It is a well established rule in workmen's compensation law that a pre-existing disease or infirmity does not disqualify a claim under the work-connection requirement if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought.
In this case there were two medical witnesses, Dr. Marrow, a specialist in internal medicine, and Dr. Kennard, who performed an autopsy on the body of appellant's husband. Dr. Kennard testified in substance that the heart attack — the process of infarction or destruction of the heart muscle — had begun to take place approximately 8 hours before Thornton's death. But Dr. Kennard also gave his opinion that people have lived for many years with infarctions if they do not get involved in extremely heavy exertion, that the amount of exertion would have to be taken into consideration as accelerating the process of heart muscle destruction and eventual death, and that the chances of Thornton's survival without the added exertion of climbing a 170 foot tower and lifting after him the block and tackle probably would have been good if Thornton had had proper care. Dr. Marrow testified that under the circumstances relating to Thornton's climbing the tower and pulling the block and tackle up after him, and to his pre-existing heart disease, that the exertion that Thornton had undergone just prior to his death accelerated his death, that sudden exertion is notoriously detrimental to heart disease, and that it would
The workmen's compensation statute creates a presumption that in the absence of substantial evidence to the contrary a claim for compensation comes within the provisions of the statute.
In these circumstances we find that there is lacking the kind of evidence which a reasonable mind might find adequate to support the Board's determination that the climbing of the tower was not a crucial precipitating factor in Thornton's death. Whether "crucial" or not the evidence shows that the exertion of climbing the tower was a precipitating factor in Thornton's death, and this bolsters the statutory presumption that the death arose out of and in the course of Thornton's employment.
Appellees contend that this appeal was not timely because notice of appeal was not filed until 33 days after entry of the judgment of the court below.
The time within which an appeal may be taken to this court is 30 days from the entry of the judgment appealed from, "except that in any action in which the state or an officer or agency thereof is a party, the time as to all parties shall be sixty (60) days * * *."
Appellee also contends that we should not consider the second of appellant's two specifications of error because it contains two separate allegations of error stated alternatively.
We have held in this case that the finding of the Workmen's Compensation Board was not supported by substantial evidence, which was what appellant urged in her first specification of error. This disposes of the appeal, so we need not decide whether the second specification of error was or was not properly stated.
The judgment of the superior court is reversed. The case is remanded to the superior court with directions for a further remand to the Alaska Workmen's Compensation Board for the awarding of compensation to appellant because of her husband's death.
This provision was amended by SLA 1965, ch. 32 by providing that the injunction proceedings should be brought not only against the board but also against "all other parties to the proceedings before the board."