Bertrand v. Coal Operators Casualty Company

FOURNET, Chief Justice

(dissenting).

We granted a writ of certiorari in this case on the application of plaintiff ( 251 La. 867 , 206 So.2d 714 ) to review the judgment of the Court of Appeals for the Third Circuit reversing a judgment in his favor and against the Coal Operators Casualty Company, his employer’s insurer, granting him compensation on the basis of total and permanent disability for a period not to exceed 400 weeks at the rate of $35 a week, with legal interest. La.App., 204 So.2d 620 .

The Court of Appeals, as had the trial judge, found: “There is little question that the heart attack suffered by plaintiff was an accident within the meaning of our Workmen’s Compensation Law,” and that “a clear preponderance of the evidence shows that plaintiff is now permanently and totally disabled by heart disease from *1131 hard manual -labor.” The appellate court, ■nevertheless, denied plaintiff’s claim for compensation on the ground there was no casual connection between the accident and the disability for which he claims compensation.

The case primarily relied on by the majority is Nickelberry v. Ritchie Grocer Company, 196 La. 1011 , 200 So. 330 , which decision, in my opinion, is factually in-apposite, for there the court, recognizing the rule governing such cases in this state to be that “if excessive heat, or heavy lifting, or straining, although usual and customary, or both, cause or contribute to a physical breakdown, or accelerate its happening, the legal requirements necessary to constitute an accident are present and such cases are compensable,” decided against the employee for the reason that under the particular facts of the case it was “not convinced that the temperature had any connection whatever with relator’s present disability. * * * Relator continued to perform his usual manual labor for several months after experiencing the straining on which he bases the contention that he suffered an accident.” The court further observed the employer “had no notice that the plaintiff claimed he was injured while in its employ' until more than a year after the date it was claimed the injury occurred.” Finally, the court concluded the facts were such they disclosed “plaintiff’s ailments and disability * * .* ■ were not traceable to an accident." (The emphasis has been supplied.)

The other case cited as authority — Seals v. Potlatch Forests, Inc., La.App., 151 So.2d 587 — is more in point from a factual standpoint. However, this decision, from the same circuit as the instant case, while it might be persuasive, is not controlling. Moreover, it is in direct conflict with the decision of this court in Behan v. John B. Honor Company, 143 La. 348 , 78 So. 589 , L.R.A.1918F, 862, the landmark case in point in this state, where the prevailing jurisprudence was first laid down. See, also, Jackson v. Travelers’ Insurance Company, 180 La. 43 , 156 So. 159 ; and Hemphill v. Tremont Lumber Company, 209 La. 885 , 25 So.2d 625 .

In the Behan case, in an opinion written by the late Chief Justice Charles A. O’Niell, and where the identical defense was urged as in the instant case — i. e., “that the plaintiff’s disability was not caused by the accident, but is the result of a disease that was lurking in his system before the accident” — the court stated it was “not aware of a decision of this court on the subject, but it is well settled in the jurisprudence elsewhere that the fact that a person was already afflicted with a dormant disease that might some day produce physical disability is no reason why he should not be allowed damages or compensation for a personal injury that causes the disease to become-active or virulent and superin *1133 duces physical disability.” In holding the accident compensatory, the court pointed out the facts established that “until the accident, he (plaintiff) was apparently in ordinary sound health, attending to his daily occupations, unconscious of being diseased, working regularly, earning large wages, and supporting his wife and daughter. The injuries he suffered by the accident, and the immediate change in his physical condition, leave no reasonable doubt that the accident superinduced, and was the proximate cause of, the disability of which he complains.” (The emphasis and word in parentheses has been supplied.)

Paraphrasing the rationale of this holding, until the accident in the instant case Bertrand was apparently in ordinary sound health, attending to his daily laborious manual duties, unconscious of being so diseased as to be unable to carry out these duties, working regularly, earning his usual wages for this type of work, and supporting himself and family, if he had one. The injuries he suffered by reason of the accident, and the immediate change in his physical condition, leave no reasonable doubt that the accident superinduced, and was the proximate cause of, the disability of which he complains.

The jurisprudence laid down in the Behan case was reaffirmed in Jackson v. Travelers’ Insurance Company, 180 La. 43 , 156 So. 169 . In that case the appellate court, as in the case at bar, reversed a judgment of the district court favorable to the plaintiffs, such reversal by the appellate court being predicated on that court’s conclusion that although the workman’s death “did occur while he was at work,” it was not “caused, activated, or materially accelerated by any accident arising out of his employment,” but, instead, “was directly due to active, progressive syphilis.” In disposing of this contention and reversing the holding of the appellate court, this court pointed out that the facts disclosed the decedent had, for 6 years, been employed in loading cross-ties weighing between 200 and 300 pounds. This precipitated a stomach hemorrhage from which he died some 5 or 6 days later. Under these facts, the court, in a unanimous decision, concluded that “the death of the deceased was caused by an accident arising out of his employment,” and that “the injury, added to the disease, superinduced the physical disability that ended” in his death. (The emphasis has been supplied.)

In a still later case — Hemphill v. Tremont Lumber Company, 209 La. 885 , 25 So.2d 625 — in reliance on the jurisprudence established in the Behan and Jackson cases, the court said: “Since this case does not involve an accident causing external injuries or producing objective symptoms, we must look to the testimony of the medical experts to determine whether this is one of those cases that comes within our well-settled jurisprudence that the legal require- *1135 merits are present to constitute an accident and an injury is compensable where excessive heat, heavy lifting or other strenuous efforts, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a pre-existing condition.” In reversing the judgments of both the trial and appellate courts, which had denied the widow and minor child compensation, this court pointed out that until the afternoon on which the decedent was stricken with a pain in the region of his heart, that continued unabated until he died some 45 minutes later, he had been employed by the defendant as a carpenter for some 20 years, was never known to havé been seriously ill or to have suffered from heart trouble. After reviewing the medical testimony at length, we concluded that the heat of the day and the strenuous work in which decedent was engaged at the time of the attack had precipitated it, and that his death was, therefore, compensable. (The emphasis has been supplied.)

In the instant case the facts disclose that plaintiff was operated on by Dr. B. J. Manuel for a double hernia in 1962, at which time there was no evidence whatever of any kind of heart disease or condition. He was at that time- — and had been for many years — working for the Courville Concrete Company performing strenuous manual labor, such as mixing concrete, hauling it in wheelbarrows, and pouring it into various types of forms and in all kinds of weather. In July of 1964, after he had done this work for some 15 years with no ill effects, he suffered a heart attack while working in the hot sun in the performance of these labors, for which he recovered compensation. After following the treatment and rest prescribed by Dr. Manuel for a number of months, the doctor felt he was sufficiently recovered to return to work doing this same heavy manual work in September of 1964, and he was again so-employed by the Courville Concrete Company. He suffered another attack on June 1, 1965, while performing these duties, and, as a result, he is permanently disabled from pursuing these duties or similar work, a fact recognized by the trial court, the appellate court, and this court as having been established by a clear preponderance of the evidence.

Dr. Manuel, testifying as plaintiff’s witness, stated that his condition was one that had been aggravated while working by “getting hot, and such as that,” pointing out that, significantly, he had suffered both of these attacks during the hot summer months of June and July. When Dr. Rufus. Craig, an expert called by the defendant, was asked if the blackout incident of June 1, 1965, was brought on by trauma or overexertion, he replied: "The angina pectoriswas precipitated by — if you consider physical exertion trauma, yes * * *.” Dr. Roderick P. Perron, called as a witness by *1137 plaintiff, stated that the heat and working conditions brought on the attack. His words, in reply to the question as to whether the heat and the strenous labors brought on the attack, are as follows: “ * * * certainly * * * the type of work he was doing, great demands on his sick heart, the high temperature that * * * was obviously present in the months of June and July, in this section of the country, and the humidity * * * which actually produces more of a work load on the heart than the temperature * * * all of these factors together, zvorking in the sun, the humidity and type of work he was doing precipitated this.” (The emphasis has been supplied.)

Clearly under the jurisprudence of this court, that was established more than 50 years ago with the decision in the Behan case, if Bertrand had died within 45 minutes after the attack of June 1, 1965, as in the Hemphill case, or 5 or 6 days later, as in the Jackson case, under the conditions reflected by the facts of this case, there is no question but that his death would have been compensable. Moreover, the case cannot be differentiated from the Behan case, in which this court pointed out: “ * * * the fact that a person was already afflicted with a dormant disease that might some day produce physical disability is no reason why he should not be allowed damages or compensation for a personal injury that causes the disease to become active or virulent and superinduces physical disability.” To the same effect are the Jackson and Hemphill cases. (The emphasis is supplied.)

Furthermore, both the trial court and the appellate court found — and this is, in substance, approved by the majority — as a fact “that the heart attack suffered by plaintiff was an accident within the meaning of our Workmen’s Compensation Law,” and “a clear preponderance of the evidence shows that plaintiff is now permanently and totally disabled to heart disease from hard manual labor,” yet the appellate court and this court’s majority conclude he is not entitled to compensation. I can think of no sound reason or logic to support such a conclusion. It is, to say the least, contradictory, and it is difficult for me to rationalize why Bertrand, who had been in apparent good health and was working at this hard labor up until the time of the accident that gave rise to this suit, and which incident was admittedly triggered by the strenuous type of work he was doing and the heat of the day, is not entitled to compensation, although he has, since that date, been permanently disabled to pursue this same type of work.

For these reasons, I respectfully dissent from the majority view.