Opinion
36050.
DECIDED FEBRUARY 20, 1956.
Workmen's compensation. Before Judge paschall. Whitfield Superior Court. November 15, 1955.
Hardin McCamy, for plaintiff in in error.
Pittman, Kinney Pope, contra.
The superior court did not err in affirming the award of the State Board of Workmen's Compensation in favor of the plaintiff.
DECIDED FEBRUARY 20, 1956.
Mrs. Juanita Cooper Landen filed a claim with the State Board of Workmen's Compensation for benefits for herself and her minor children because of the death of her husband, James Landen, due to injury arising out of and in the course of his employment with Edgar L. Smith Construction Company. The deputy director entered an award in favor of the plaintiff. On appeal to the full board by the employer and insurance carrier, the full board sustained and affirmed the finding of facts and award of the deputy director, whereupon the insurance carrier and employer appealed the award to the Superior Court of Whitfield County where the award of the State Board of Workmen's Compensation was sustained. It is to this order that exceptions were filed, and the case is here for review.
Briefly, the facts show that on October 30th, 1954, while employed by the Edgar L. Smith Construction Company as a painter's helper, the deceased was engaged in waxing panel walls; that the work done by the deceased consisted of brushing down a wall which the painters were preparing to wax or shellac; that this work consisted of reaching up and bending over and going up and down a ladder; that after having done this work from approximately 8 a. m. until about 10:30 a. m. the deceased complained of a severe pain in his chest, whereupon he sat down upon the floor and held himself with both arms around his chest; that he was sent by ambulance to the local hospital where he was examined, and it was determined that he suffered a spontaneous pneumothorax; that he was advised that his family physician should be called; that he was rendered first aid at the local hospital and was sent direct to the hospital at Fort Oglethorpe for observation and treatment, where the diagnosis was confirmed and that he suffered the collapse of one lung; that he remained in the hospital until November 4th, 1954, at which time he was dismissed; that he left his hospital room, went to the business office of the hospital to pay his hospital bill, after which he returned to his hospital room; that upon his return to the hospital room he collapsed and died.
Doctor McGuire testified that in his opinion the death of the deceased was connected with the pneumothorax for which he was hospitalized and that the physical exertion of reaching up and down and bending over would be sufficient to cause such an injury and that such an injury was more likely to result from exertion than from no exertion. Doctor L. A. Williams testified substantially the same as Doctor McGuire, i.e.: "That in his opinion the cause of death of claimant's husband would be related to the pneumothorax for which he was admitted to the hospital, and that the exertion of performing the duties which Mr. Landen was performing of bending down and reaching up while wiping down walls was sufficient to precipitate the spontaneous pneumothorax for which he was admitted to the hospital."
Counsel for the defendants argue that the facts found by the State Board of Workmen's Compensation do not support the award and order and that there is not any competent evidence in the record to warrant and sustain the award and order of the State Board of Workmen's Compensation. It is true that in order for an injury and death to be compensable, the death must result from an accident arising out of and in the course of the employment, or must be a result thereof. It is also true that the burden of proof is on the claimant to show that the death so resulted. See Johnson v. Firemen's Fund Indemnity Co., 79 Ga. App. 187 (1) ( 53 S.E.2d 204), Liberty Mutual Ins. Co. v. Harden, 85 Ga. App. 830 (2) ( 70 S.E.2d 89) and Lockheed Aircraft Corp. v. Marx, 88 Ga. App. 167 ( 76 S.E.2d 507). Counsel for the defendants also argue that where the evidence is consistent with either of two opposing theories, the evidence proves neither of the theories and cites in support thereof the following cases: Taylor v. State, 44 Ga. App. 387, 417 ( 161 S.E. 793); Federal Reserve Bank of Atlanta v. Haynie, 46 Ga. App. 522 ( 168 S.E. 112); and American Mutual Liability Ins. Co. v. Harden, 64 Ga. App. 593, 595 ( 13 S.E.2d 685). It is our opinion that the testimony of the two physicians left no doubt as to the cause of death. It necessarily follows that there is only one theory involved. Where there is no controversy in the evidence material to the issue involved and the implications and inferences which logically and properly arise from the evidence necessarily lead to only one conclusion, a finding of fact is demanded by law. See Employer's Liability Assur. Corp. v. Woodward, 53 Ga. App. 778 (3) ( 187 S.E. 142). It is true that there is never any presumption that an injury causes a death. See Lockheed Aircraft Corp. v. Marx, supra. In the instant case there is sufficient competent evidence that sustains the award of the State Board of Workmen's Compensation and this court is without authority to set aside the award. Milam v. Ford Motor Co., 61 Ga. App. 614 ( 7 S.E.2d 37). See also Travellers Insurance Co. v. Bacon, 30 Ga. App. 728 ( 119 S.E. 458); Travelers Insurance Co. v. Reed, 54 Ga. App. 13 ( 186 S.E. 887); Maryland Casualty Co. v. Sanders, 182 Ga. 594 ( 186 S.E. 693) and Liberty Mutual Insurance Co. v. Blackshear, 197 Ga. 334 ( 28 S.E.2d 860). When the claimant made out a prima facie case then the burden shifted to the defendants to show by competent evidence that the death of the deceased was caused by some supervising cause. Thompson-Weinman Co. v. Yancey, 90 Ga. App. 213 ( 82 S.E.2d 725). Such a situation is not shown in the instant case. In Georgia Ry. c. Co. v. Clore, 34 Ga. App. 409, 410 ( 129 S.E. 799) this court said: "An injury is received in the course of the employment when it comes while the workman is doing the duty which he is employed to perform. It arises out of the employment, where there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury." See also Georgia Marble Co. v. McBee, 90 Ga. App. 406 (2) ( 83 S.E.2d 253), wherein this court said: "Where, in such a proceeding as indicated above, there is evidence from which it may be inferred that the claimant suffered a heart attack due to exertion while on the job, although the exertion was in the normal performance of his duties, and he was just as likely to have sustained the heart attack off the job as on, due to a congenital heart defect, the injury sustained is still compensable although the pre-existing heart condition was a major contributing factor in the injury. Hartford Accident Ins. Co. v. Waters, 87 Ga. App. 117 ( 73 S.E.2d 70), and citations; Hardware Mutual Casualty Co. v. Sprayberry, 195 Ga. 393 ( 24 S.E.2d 315); Georgia Power Co. v. Reid, 87 Ga. App. 621 ( 74 S.E.2d 672)."
In Bussey v. Globe Indemnity Co., 81 Ga. App. 401, 404 ( 59 S.E.2d 34), this court said: "It is immaterial that the physical exertion engaged in by an employee is not unusual or excessive."
The State Board of Workmen's Compensation did not err in the finding of facts and award in favor of the plaintiff, nor did the Superior Court of Whitfield County err in affirming this finding of facts and award.
Judgment affirmed. Townsend and Carlisle, JJ., concur.