Home JOHN P. RAMOS'S (dependent's) CASE.

330 Mass. 686

October 28, 1953 - December 30, 1953

Bristol County


Evidence in a workmen's compensation case that an employee who died of a heart attack while at work had a heart disease such that "there . . . [was] no way of telling when" it might cause death and that he "was liable to pass away at any time," and that his conduct on the day of his death was normal was "substantial evidence" that his death was attributable solely to the disease and not to his employment and made inapplicable the presumption under G. L. (Ter. Ed.) c. 152, Section 7A, inserted by St. 1947, c. 380, that his death resulted from an injury arising out of his employment. [689] An erroneous ruling by the Industrial Accident Board that the presumption under G. L. (Ter. Ed.) c. 152, Section 7A, inserted by St. 1947, c. 380, was applicable in a workmen's compensation case following an employee's death from a heart attack while at work did not preclude affirmance of a decree awarding compensation where the evidence warranted findings made by the board to the effect that by reason of a preexisting heart disease of the employee and the exertion involved in the performance of his work the heart attack was an injury arising out of his employment, and the erroneous ruling was merely supplementary to the board's findings and not a necessary part of its decision and might be disregarded. [689]

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CERTIFICATION to the Superior Court of a decision by the Industrial Accident Board under the workmen's compensation act.

The case was heard by Sullivan, J.

In this court the case was submitted on briefs.

Gerald P. Walsh, for the insurer.

David Entin, for the claimant.

WILLIAMS, J. The insurer appeals from a decree of the Superior Court awarding compensation to the widow of the employee who died on December 9, 1950, from an alleged fatal injury received while in the employ of Fall River Gas Works Company. G. L. (Ter. Ed.) c. 152. The decedent, a man fifty-three years of age, had worked for the company about thirty-two years. On the morning of December 9 he began work at 7 A.M. and worked until 12 noon cleaning out the furnace by breaking up and removing heavy clinkers. It was work of a kind he was accustomed to perform. He had lunch and then worked at the purifier removing oxide until about 2 P.M., when he went out in the yard to smoke. Shortly thereafter he was found in the yard dead, his body face down upon the ground with a cut extending across the nose. Blood was coming from the nose and mouth. According to the death certificate the cause of death was "Coronary Occlusion. Coronary Sclerosis. Chronic Myocarditis." The only medical evidence other than the death certificate was from the decedent's physician who testified that he had examined the decedent on November 2, 1950, and then "reached the conclusion that this man was suffering from a heart condition, more specifically, the beginning of a coronary heart disease," that "once that coronary disease progresses, there is no way of telling when the blood vessels will become stopped or occluded, causing death," and that the nature of the coronary disease from which the employee was suffering was such "that he was liable to pass away at any time. People with this coronary disease pass away frequently when in bed asleep or when they are walking around the house or on the street." Although the doctor prescribed rest and advised the employee to stay away from

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work, the latter continued with his usual employment. On the night before his death, he complained to his wife of pain in his upper left chest. On the following morning he made no complaints but laughed and joked with his fellow employees and was "jolly" when he left for the smoke.

The single member who heard the case stated in his decision that "I cannot escape the conclusion that since the employee's heart condition was so advanced on December 9, 1950, it was not necessary to place any strain or stress on his heart to cause death, that it necessarily follows, and it is fair to assume, that the least exertion required in this particular work was sufficient on this day to hasten his death sooner than it ordinarily would occur. I am of the opinion that these facts warrant a finding that the death arose out of and in the course of his employment and claimant is entitled to the benefit of the presumption under Section 7A of the act. I find that the employee's death was hastened by the exertion from the work he was doing on December 9, 1950. On all of the evidence, I rule and find that the deceased employee's death arose out of and in the course of his employment." On review it was stated by the reviewing board in its decision: "The reviewing board, on consideration of all the evidence, affirm and adopt the findings and decision of the single member and find further that on the day of the employee's death he was required in the course of his work to perform work which involved considerable strain and stress and that in all probability affected his heart, inducing the injury which resulted in his death and that accordingly, his death was causally related to such work. (Brzozowski's Case, 328 Mass. 113 .) The reviewing board find further that the provisions of G. L. c. 152, Section 7A, have application to this claim and the reviewing board find the insurer has failed by substantial evidence to overcome the presumption in favor of the claimant in the latter section." Section 7A of c. 152, inserted by St. 1947, c. 380, to which reference was made, provides in part that "where the employee has been killed . . . it shall be presumed, in the absence of substantial evidence to the contrary, that the claim comes

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within the provisions of this chapter . . .." This presumption "applies to every element of the claim to compensation, to the requirement that the injury arise out of the employment as well as the requirement that it arise in the course of the employment" (Woloshchuck's Case, 325 Mass. 10 , 12), and the words "substantial evidence to the contrary" mean evidence "such `as a reasonable mind might accept as adequate to support a conclusion.'" Goddu's Case, 323 Mass. 397 , 401. In our opinion the reviewing board erred in ruling that the presumption was applicable to the present claim. The evidence as to the likelihood of the decedent's death from a coronary attack independent of any physical exertion and of his apparently normal conduct on the morning of December 9 until practically up to the time of his death was substantial evidence that the death was caused solely by his coronary heart disease and was not attributable to his employment. See Stepner's Case, 328 Mass. 230 ; Lysaght's Case, 328 Mass. 281 . Compare Lapinsky's Case, 325 Mass. 13 , 16. Apart from the presumption there was sufficient evidence to warrant the decision of the board. Brzozowski's Case, 328 Mass. 113 . The ruling as to the applicability of Section 7A appears to be supplementary to the findings on which the conclusion of the board was based and not a necessary part of the decision. See O'Flaherty's Case, 325 Mass. 303 ; Brzozowski's Case, supra. It may be disregarded.

Costs under G. L. (Ter. Ed.) c. 152, Section 11A, inserted by St. 1945, c. 444, shall be allowed by the single justice.

Decree affirmed.