RUST
ENGINEERING COMPANY
v.
C. C. RAMSEY.
Record No. 4074.
Richmond
June 8, 1953.
Present, All the Justices.
(1) Workmen's Compensation -- Award of Commission
Unsupported by Credible Evidence.
(2) Workmen's Compensation -- Cause of Injury --
Burden of Proof.
(3) Workmen's Compensation -- Injury Resulting
from Normal Exertion of Employment -- Not Compensable.
(4) Workmen's Compensation -- Statute of
Limitations -- Alleged Mental Incompetency.
1.
Claimant Ramsey had obtained an award by the Industrial Commission
against defendant company for injuries allegedly resulting from an accidental
strain while he and certain fellow employees were carrying a steel beam. This award was set aside because unsupported
by credible evidence, claimant's testimony as to the accident being both
self-contradictory and without corroboration and his fellow employees having
been unaware of the occurrence of any accident.
2. In workmen's compensation cases claimant
must fail if it is just as probable that the injury was due to a cause for
which the employer is not responsible as to a cause for which it is responsible. In the instant case claimant failed to show that his condition
was due to accident in the course of employment rather than to preexisting
arteriosclerosis.
3. Mere exertion which is not greater than that ordinarily incident to
employment but which combines with preexisting disease to produce disability is
not compensable as accidental injury.
4. Claimant, who filed no application for
compensation until more than nineteen months after his alleged injury, was barred
from recovery by Code 1950, section 65-84.
Though he alleged mental incompetency sufficient to toll the running of
the statute, he failed to prove it.
Appeal from an award of the
Industrial Commission of Virginia.
The opinion states the case.
Gentry & Locke, for appellant.
Garnett S. Moore, for appellee.
HUDGINS, C.J., delivered the opinion of the court. This appeal
presents for review an award entered by the Industrial Commission of Virginia
against Rust Engineering Company in favor of C. C. Ramsey for injuries
resulting from an alleged accident.
C. C. Ramsey, hereinafter designated
"claimant," was an iron worker, employed during a part of February, 1949, by Rust
Engineering Company, hereinafter designated "employer," on a
construction job at Reusens, near Lynchburg, Virginia. Between 9:00 and 10:00 a.m. on Wednesday,
February 9, 1949, claimant complained of being sick. William I. Belcher, his
foreman and immediate superior, observed that he was pale and "looked
funny," and advised him to stop work and lie down in the
"shanty." Later in the day
Belcher took him to a physician's office in Lynchburg.
Claimant, in his deposition taken on
October 26, 1950, approximately twenty months after the alleged accident, said
that after he went into the doctor's office on February 9, 1949, he "just
passed out," and did not remember anything until "just a few
months" before that date (October 26, 1950).
Doctor H. B. Luttrell stated that "this
man came into my office Feb. 12, 1949.
At this time he complained of numbness in right arm. He stated that this numbness followed an
injury a few days previous (he was lifting a heavy object at the time).
Examination at this time showed weight 241 lb., chest negative, blood pressure
128/80, urine -- albumin trace, blood Wassermann negative. Two days later when
seen in his home blood pressure had gone up markedly. He was disorientated, in
fact in a semiconscious state. He
appeared to have weakness in both right arm and leg. This weakness was probably
due to Cerebral Hemorrhage. It is possible the hemorrhage was due to the
injury. I did not see this man after Feb. 14, 1949."
Doctor Charles G. Fox testified that when he
examined claimant in his home in Pulaski on February 14, 1949, he found his
blood pressure was 195/110. He was unable to speak except for a few
disconnected phrases. The doctor, basing his opinion [977] on the history of the case
as given by the patient, said claimant had "had a cerebro-vascular
accident, most likely of venous origin" and that he was paralyzed after
February 17, 1949; that after following the clinical course outlined for the
patient in his home, claimant's blood pressure declined and his condition
improved.
[1]
Employer's first contention is that claimant is not entitled to
compensation because he did not prove an accident arising out of and in the
course of his employment.
The only testimony tending to prove that there
was an accident arising out of and in the course of the employment emanates
from claimant himself. He testified he was 49 years of age and that on February
9, 1949, while he and four co-workers were lifting a conveyor or "a section
of L-beam" (weighing from 500 to 700 pounds), the hold of one of the
workers slipped and "he gave up his hold on it and I carried it on. There
was one man on my side and three on the other side.” Claimant testified further
that thereafter he was "feeling bad," his right arm hurting him, and
that on the advice of William I. Belcher, his foreman, he went to a
"shanty" and stayed about an hour, when Belcher took him to a
doctor's office in Lynchburg where he became unconscious.
Claimant introduced as witnesses in his
behalf Walter Parrish and R. W. Bruce, two men who were helping him lift or
unload the steel beam, and J. A. Jones, a master mechanic who was working for
the same employer, and who was in close proximity to the five men who were
unloading the beam. None of these witnesses testified that he was aware of an
accident, or knew of any unusual or fortuitous circumstance resulting in injury
to claimant. Parrish said that after the beam was unloaded, claimant remarked
that he had caught all of the load. He saw claimant staggering and upon being
asked what was wrong, claimant said he was "dizzy." R. W. Bruce testified that claimant told him
that the foot of one of the workmen slipped, throwing the weight of the beam on
him. Later he heard claimant complain
of a pain in his back.
Jones testified that he knew nothing about an
accident, but that on the night of February 9, 1949, claimant asked him to rub
his arm and while doing so, claimant asked him "did you see those boys
throw the load on old Apple?" (a nickname for claimant). On the same occasion claimant told him that
the doctor had treated him for an upset stomach.
[978] These witnesses were present at the time
claimant claims to have been injured and were in position to see any unusual
occurrence that may have taken place.
All they knew of an accident was what claimant told them after the beam
had been unloaded. Claimant, in his deposition and in his testimony, gave two
accounts of how he sustained an injury. One was to the effect that while the
five men were unloading the beam the hold of one slipped and he (claimant) had
to carry the whole weight on his side. The other is that the conveyor slipped
off the truck and he "caught hold of it and went on down with it and it
was too much for me.” Neither of these two accounts is in accord with the
self-serving declarations that he made to three of his co-workers. The result
is that we have various different accounts of how the alleged accident
occurred, all emanating from claimant himself and uncorroborated by any other
evidence.
It is incredible that an accident could have
occurred in any of the ways described by claimant without the knowledge of any
of the four men who had hold of the same beam at the time.
Section 65-94 of the Code provides "that
an award of the Commission shall be conclusive and binding as to all questions
of fact.” In applying this section, we have repeatedly held that the Industrial
Commission's finding of fact which is sustained by credible evidence is binding
upon this court. A. N. Campbell & Co. v. Messenger, 171 Va. 374, 199
S.E. 511; Stump v. Norfolk Shipbuilding Corp., 187 Va. 932, 48 S.E.2d
209; Lynchburg Foundry Co. v. Irvin, 178 Va. 265, 16 S.E.2d 646.
In Byrd v. Stonega Coke, etc. Co.,
182 Va. 212, 220, 28 S.E.2d 725, after stating the foregoing rule, we
said: "The converse of this
proposition is equally true; namely, if there is no credible evidence on which
the Commission's finding of fact is based, then such finding is not binding upon
this court. The question then becomes a question of law."
Mr. Justice Eggleston, speaking for the
Court in 179 Va. 625 , 629, 20 S.E.2d 498, said: "* * * an award which is unsupported by the evidence is
illegal and should be set aside."
[2] Employer’s second contention is that
the evidence does not prove that the alleged accident was a proximate or
producing cause of claimant's disability.
Doctors Fox and Luttrell testified that
claimant's malady developed into a cerebral hemorrhage, which might have been
[979] produced by lifting a heavy object; and in view of the history of the case as
related by claimant to them, they attributed his condition to such cause.
The evidence is that claimant was
suffering from hypertension prior to February 9, 1949. Doctor Luttrell testified that he examined
claimant on December 26, 1947, at which time his blood pressure was 170/100 and
that this high diastolic pressure indicated arteriosclerosis. Before claimant
attempted to unload the steel beam, his foreman, Belcher, noticed that he was
pale, was unable to weld, and advised him to go up to the "shanty"
and lie down. Belcher visited him that
night and advised him to "go home and get straightened out," but
claimant did not take his advice, returned to work on Friday and told the
foreman that he was "feeling very well." Claimant at no time informed Belcher that he had been hurt or had
suffered an injury while at work.
Other than claimant's self-serving
declarations, there is no evidence of exertion beyond that usually required in
performing the duties for which claimant had been employed, and to which he was
accustomed. It may be that his
continued work lifting beam, which was a part of his regular duties, had a
tendency to augment the existing arteriosclerosis. It is well known that hemorrhages may occur at any time and for
various causes mentioned in the different medical text books. In this case it seems that the most probable
cause of claimant's malady was a progressive development of arteriosclerosis, augmented
by his normal activities. But even if
claimant's disability occurred in the course of his employment, this fact is no
indication that it arose from the hazard of such employment.
Doctor Fox also testified that
claimant's condition could have been caused by sneezing, coughing or other
similar events. His final statement is "It is known that straining causes
an increase in venous pressure, and it is conceivable that the strain of an
extremely heavy lift such as was performed by this patient, might cause a
rupture of a cerebral vein or cerebral venus sinus." (Italics supplied.) Doctor Luttrell, in his
letter of September 22, 1950, said "It is possible the hemorrhage was due
to the injury."
Possibility is not enough. We said in
A. N. Campbell & Co. v.
Messenger, 171 Va. 374, 379, 199 S.E. 511: "When damages are claimed [980] in Workmen's Compensation cases
for injuries which may have resulted from one of two causes, for one of which
the defendant is responsible, and for the other of which it is not responsible,
the plaintiff must fail if his evidence does not show that the damage was
produced by the former cause. And he must also fail if it is just as probable
that the damages were caused by the one as by the other, since the plaintiff is
bound to make out his case by the preponderance of evidence."
[3] Mere exertion, which is not greater
than that ordinarily incident to employment but which combines with
pre-existing disease to produce disability is not compensable as an
"accidental injury." In Good
v. Pennsylvania Department of Property and Supplies et al., 346 Pa. 151, 30
A.2d 434, it is said: "* * * the
employee's death was caused by a strain upon his already sclerotic arteries,
and that strain was the result of a normal amount of exertion necessary for the
performance of his duties in the ordinary course of the work in which he was
employed. There was no accident, and, therefore, there can be no recovery,
because the Compensation Act is what it purports to be -- an act to compensate
for accidental injuries and not one to insure the life and health of the
employee."
We have repeatedly said that the
Workmen's Compensation Act was adopted for the benefit of the employees and
their dependents; that it should be liberally construed in order to accomplish
this humane purpose. But liberal
construction does not mean that the Act should be converted into a form of
health insurance.
In Feitig v. Chalkley, 185 Va.
96, 38 S.E.2d 73, we said: "The
fundamental purpose of the act is to give compensation for accidental injuries
within the hazards of the employment. The Act does not apply to accidents
outside of the field of industrial hazard.” Nor does the Act include
compensation for diseases gradually caused or accelerated by employment, unless
such acceleration is caused by accidental injury.
[4] Employer's next contention is that claimant
is not entitled to recover because he did not file his application for
compensation with the Industrial Commission within one year [981] from the date of
the alleged accident as provided by Code, section 65-84. No application was
filed for compensation until September 11, 1950, more than nineteen months
after the date of the alleged accident.
However, claimant contends that he was mentally incompetent during this
period and this incompetency brings his case within the influence of section
65-76, which provides: "No
limitation of time provided in this Act for the giving of notice or making
claim under this Act shall run against any person who is mentally incompetent
or a minor dependent, so long as he has no guardian, trustee or
committee."
Claimant stated in his deposition that he became
unconscious in the doctor's office on the day of the alleged accident, and
continued in such condition until a month or two before he filed the
application, but this statement is incredible when weighed with other
uncontradicted testimony.
Belcher testified that he visited claimant in his rooming
house on the night of February 9, 1949, and that notwithstanding claimant told
him he was feeling better, he told him to go to his home in Pulaski and
"get straightened out" before returning to work. He did not return to work on Thursday, the
next day, but did return on February 11, and worked eight full hours.
J. A. Jones testified that he saw plaintiff in his room on
the night of February 9 and on February 11 he saw him at work and he said that
he felt fine; on that night they sat together on a bus from Lynchburg to
Pulaski; that during these three days he noticed nothing strange about
claimant; that he was acting in his usual manner. Later the witness heard that claimant had been paralyzed and he
sat up with him one night. Doctor
Luttrell said that claimant's mind was "clear" on February 12,1949.
Doctors Luttrell and Fox testified that when they saw
claimant on February 14 he was semi-conscious. He was paralyzed on or after
February 17, 1949.
Doctor Fox testified that claimant had improved so much that
on April 7, 1949, he was able to come to his office, accompanied by his wife,
at which time his blood pressure was practically normal -- 140/120. His chief
complaint on this visit was bilateral conjunctivitis which was treated. "He was still somewhat aphasic, but was
mentally alert and seemed to understand clearly."
There is no other
evidence tending to show claimant's mental [982] condition between April 7, 1949, and
the time his application was filed on September 11, 1950.
The burden of proving mental incompetency so as to toll the
running of the statute, is upon the injured employee. It is not necessary that it be proven that he is a lunatic or
that he has been confined in a mental institution, but it must be proven by
credible evidence that the injured employee did not have sufficient mind or
reasoning powers to comprehend the ordinary affairs of life, or that he had
lost control of his mental power to such a degree as to deprive him of sane and
normal action. The proof in this case does not measure up to this test.
For the reasons stated the order of the Industrial
Commission is set aside and the case dismissed.
WHITTLE, J., concurs in the result.
Dismissed.