A & P Transportation v. Warren , 213 Ga. App. 60 ( 1994 )

Beasley, Presiding Judge.

Warren’s claim for workers’ compensation benefits based on a disabling heart attack was granted by the ALJ, and the board affirmed. Employer A & P Transportation and its insurer applied for a discretionary appeal from the superior court’s judgment affirming the board. We granted that application.

As found by the ALJ, claimant, who was 51 years old at the time of the events in question in October 1991, had been employed as a long-haul truck driver for approximately 20 to 25 years. For the last five years, he drove 18-wheel trucks for A & P Transportation. He would make trips primarily from Calhoun, Georgia, to Los Angeles, California. His normal schedule was that he would pick up a tractor and trailer on Friday afternoon or evening and drive to California, taking breaks of an hour or two every five to six hours. The trips would take 40 to 48 hours. After arriving in California, he would sleep two or three hours and then repeat the trip, usually with a return haul, to various cities in Florida, Georgia, and North Carolina.

Generally, he would get back to Calhoun on Thursday night or Friday morning and then leave again on Friday afternoon. Although there was some evidence of logbook violations in 1989 and 1990, any failure of Warren to keep accurate logbooks, which he was criticized for, or any violations in those years did not cause his 1991 heart attack. In addition, according to Warren, his schedule necessitated violation of ICC regulation. The employer knew his schedule, was charged with knowing the ICC regulations, and may reasonably be inferred to know the distance traveled. It could calculate the time involved in these assignments. Warren also testified that the employer did not require him to stop these violations.

He would normally eat greasy and “junk” food at truck stops. He testified that there is no such thing as low-calorie and low-fat food around truck stops. He was 5'8" and weighed 212 pounds. He also smoked about two or three packs of cigarettes each day for 40 years, sometimes at home but mostly at work to relieve tension and boredom. He was already on medication for high blood pressure and a hiatal hernia when he began employment with A & P Transportation. He testified that driving was physically demanding and mentally stressful. Family history included the fact that his mother had had a heart attack.

On this particular trip, he was returning to North Carolina. On Tuesday his chest began hurting when he got to Gordon, Texas, and he thought it was his hernia. His brother-in-law was with him and asked if he wanted to go to the doctor. He said no and kept taking the hernia medication. He called A & P dispatcher Jones from Texas and Alabama and advised of persistent pains in his chest and stomach. He arrived in Rome, Georgia, where he resides, at approximately 9:00 p.m. on Thursday. At Jones’ instruction he took the rig to Calhoun and turned it over to another driver to complete the delivery to North Carolina. He then returned to Rome and went to bed.

The next day, he was seen by his family physician who erroneously diagnosed the pain as attributable to the hernia and prescribed medication accordingly. Claimant returned home, slept for a short period, arose at noon, and collapsed. He was taken to the hospital emergency room and admitted with a massive heart, attack, resulting in his total disability.

Dr. Young, claimant’s cardiologist, testified that the risk factors for heart disease and heart attack include high-fat/high-cholesterol diet, cigarette smoking, and lack of exercise. Dr. Young also testified that when he initially saw claimant in 1982, he would have explained to him the significance of his risk-factor profile and would have warned him against continuing to smoke. Dr. Young’s opinion was that if claimant smoked, ate the wrong foods, and got no exercise due to his job, the job would have contributed to his heart attack.

The ALJ found that the medical evidence reveals that Warren was “virtually destined” to have a heart attack because of certain factors, i.e., cigarette smoking, lack of exercise, and an unhealthy diet of high-cholesterol food, which put him at great risk. He further found that the preponderance of evidence was that the existence of two of these factors was at least in part attributable to the lifestyle he led as a long-haul truck driver, which made it difficult for him to exercise on any regular basis or to obtain healthy, low-cholesterol food. He concluded that claimant established the necessary causal nexus between his employment and heart attack to render the claim compensable. The board adopted the ALJ’s award, by a vote of two to one, concluding that the employee’s proof comported with OCGA § 34-9-1 (4).

The superior court affirmed the award under the “any evidence” rule, to which we are also bound. Regardless of what our findings would be if we were the factfinders, “ ‘[u]pon appeal, the evidence will be construed in a light most favorable to the party prevailing before the board, and every reasonable factual inference and presumption of validity of award should be indulged in by the reviewing court. (Cits.) Neither the superior court nor this court has any authority to substitute itself as a fact-finding body in lieu of the board; an appellate body is bound by the “any evidence” standard of review, and is not authorized to substitute its judgment as to weight and credibility of witnesses. (Cits.)’ [Cit.]” Impress Communications v. Stanley, 202 Ga. App. 226, 229 (1) (414 SE2d 238) (1991). See also Ero Indus. v. Phillips, 207 Ga. App. 432, 433 (1) (428 SE2d 396) (1993).

We also review this case in the context of the Workers’ Compensation Act. Its purpose is “to protect a worker against unexpected personal injuries arising out of, and in the course of, his employment. [Cits.] . . . The claimant has the burden of demonstrating that his claim falls within the Act’s coverage. [Cits.] He must prove that the injury for which he seeks workers’ compensation benefits arose out of, and in the course of, his employment; an injury that occurred in the course of his employment but did not also arise out of the employment does not come within the Act. [Cit.]” Universal &c. Ins. Co. v. Ga. Auto. &c. Fund, 182 Ga. App. 595, 596-597 (1) (356 SE2d 686) (1987).

“An accident ‘arises out of’ employment when 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. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises ‘out of’ the employment. But it excludes an injury which can not fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work. It must be incidental to the character of the business, and not independent of the relation of master and servant. [Cit.]” Davis v. Houston Gen. Ins. Co., 141 Ga. App. 385, 386 (233 SE2d 479) (1977).

“[OCGA § 34-9-1 (4)] . . . provides that ‘injury’ and ‘personal injury’ under the [Workers’] Compensation Act shall not include ‘heart disease, heart attack . . ., unless it is shown by preponderance of competent and creditable evidence that it was attributable to the performance of the usual work of employment.’ ” Guye v. Home Indem. Co., 241 Ga. 213, 214 (244 SE2d 864) (1978); see Southwire Co. v. Eason, 181 Ga. App. 708, 709 (353 SE2d 567) (1987). Where the ALJ and board find that the performance of claimant’s work activities precipitated or contributed to his heart injury, the award will not be set aside on appeal if there is any evidence to support the finding. The question of what evidence preponderates rests with the factfinders. Guye, supra at 218. See Zippy Mart v. Fender, 170 Ga. App. 617 (317 SE2d 575) (1984).

The rule is that where a previously diseased condition of a claimant for compensation is aggravated by an injury or accident arising out of and in the course of the employment, and this results in disability, there is a compensable injury. Griggs v. Lumbermen’s Mut. Cas. Co., 61 Ga. App. 448, 450 (6 SE2d 180) (1939). Consequently, in Guye, supra, where the employee suffered a heart attack while performing strenuous manual labor which his job required, it was held that the heart injury was compensable even though the employee was a smoker with heart disease and there was no medical evidence as to causation. The natural inference from human experience was enough to satisfy the preponderance of evidence statutory requirement. Similarly in Southwire Co., supra, the employee’s heart attack was held compensable, where her work was physically and emotionally stressful and there was medical evidence that this could have been a precipitating factor in the heart attack, even though the employee was obese, smoked, and had a family history of heart disease. In Zippy Mart, supra, bypass surgery for coronary heart disease was held to constitute a compensable injury, where there was medical evidence that occupational stress suffered by the employee after being promoted to a supervisory job position could have been the precipitating cause of his developing the condition which necessitated the surgery. As stated in Ga. Elec. Co. v. Rycroft, 259 Ga. 155, 159 (378 SE2d 111) (1989), “there is a presumption that an employer takes an employee as he finds him . . .,” that is, with his existing health conditions.

In this case, a heart attack has been adjudged compensable by the administrative agency because of a causal nexus between the claimant’s employment and risk factors relating to nutrition and exercise. These factors fall into the realm of personal habits arrived at by personal choice and are not normally occupational hazards. Cultivating a routine of lack of exercise, poor nutrition, smoking, and being overweight constitutes a hazard to which people are exposed apart from employment. However, the nature of the employment may, as in this case of long-haul truck driving, require long periods of stress without physical exercise, and without the availability of a healthy diet, all exacerbated by time constraints. “It is well recognized in ‘heart attack’ cases that it is often difficult for the trier of fact to find the line between a noncompensable heart injury that is a symptom of an existing disease merely manifested during job exertion, and a compensable heart injury to which the job exertion was a contributing precipitating factor. [Cit.]” Guye, supra at 215.

Applying the test set out in Davis, supra, there is evidence that these were “conditions” of the work, and they were causally connected to the heart attack which had its onset when claimant was driving and which fully matured after he got the truck to someone who could complete the delivery on time.

Judgment affirmed.

Birdsong, P. J., und Cooper, J., concur. Pope, C. J., concurs and also concurs specially. Blackburn, J., concurs specially. McMurray, P. J., Andrews, Johnson and Smith, JJ., dissent.