
    Charlie L. LEWIS v. The 4-E CORPORATION, an Alabama Corporation.
    Civ. 4008.
    Court of Civil Appeals of Alabama.
    March 28, 1984.
    Rehearing Denied May 2, 1984.
    
      Harold Howell of Howell, Sarto & Howell, Prattville, for appellant.
    James H. Anderson of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
   PER CURIAM.

This is a workmen’s compensation case.

Lewis, the employee, was lifting ninety-four pound sacks of cement at work when he began having chest pains. He left work and went to the hospital, where he was admitted for treatment of an apparent myocardial infarction. Lewis stayed in the hospital some sixteen days.

Thereafter, Lewis filed a complaint seeking workmen’s compensation benefits. After hearing the evidence, the court entered a decree finding that Lewis had suffered an anterior myocardial infarction which arose out of and in the course of his employment with 4-E, resulting in a ten percent permanent loss of ability to earn. The court awarded him $148 per week for thirty-four weeks, totalling $5,032, as temporary total disability; $17.08 per week for eighty-eight weeks, totalling $1,503.04, for permanent partial disability already incurred; and $17.08 per week for one hundred seventy-eight weeks, payable monthly, for future permanent partial disability. In addition, the court ordered the employer to pay all hospital, medical, and doctors’ expenses incurred in treatment of the infarction. Medical expenses for further medical diagnostic procedures to determine extent of blockage of coronary arteries or possible heart bypass surgery to prevent or lessen heart pain were denied on the grounds that these expenses were not related to the injury received in the course of employment.

After his motion for new trial was denied, Lewis appealed here, asserting that the trial court erred in (1) failing to give him medical benefits for his heart attack, (2) failing to grant him an additional ten percent compensated benefit (presumably as a penalty for nonpayment of benefits pursuant to § 25-5-59, Code 1975), and (3) in finding only a ten percent loss of earnings capacity.

In workmen’s compensation cases the trial court’s findings are conclusive if there is any evidence to support them. We may not consider the weight of the evidence nor the propriety of the trial court’s findings of fact. Our review is limited to a determination of whether there is any evidence to support the trial court’s findings and whether the law was correctly applied to the facts. Craig v. Decatur Petroleum Haulers, Inc., 340 So.2d 1127 (Ala.Civ.App. 1976), cert. denied, 340 So.2d 1130 (Ala.1977).

In the case at bar, we find that there is legal evidence to support the trial court’s findings in regard to the determination of disability and the award of medical benefits. We also uphold the trial court’s decision to not assess the employer with a ten percent penalty for failure to pay benefits.

First we will address Lewis’s contention that the trial court erred in denying certain medical benefits.

Viewing the record with the appropriate standard of review in mind, the following is pertinent. After Lewis’s myocardial infarction it was determined that Lewis had coronary artery disease caused by a narrowing or clogging of the arteries. This condition was most likely a result of various factors, including heredity, high blood pressure, and extreme obesity, among other things; this condition generally takes a long time to reach the trouble state. There was evidence that reduced oxygen flow to the heart, caused by the coronary artery disease, combined with the physical exertion of Lewis’s job to provoke his myocardial infarction.

There was also evidence that the heart disease was not due primarily to the myocardial infarction and that Lewis’s job could not cause the type of heart disease afflicting Lewis.

There was scarring on Lewis’s heart caused by the myocardial infarction, but there was testimony that even without the scarring Lewis would still need medical attention such as catheterization of the coronary arteries, or possible surgery, because of their clogged condition as a result of heart disease.

There is evidence from which the trial court could determine that Lewis’s coronary artery disease was a preexisting condition not caused by the injury at work. Therefore, the trial court was correct in finding that any medical expenses incurred in connection with treatment of this preexisting condition would not be the responsibility of the employer. § 25-5-58, Code 1975.

In regard to Lewis's contention that the trial court erred in finding a ten percent loss of ability to earn, we conclude that there is evidence to support the trial court’s decision.

As seen from the above, Lewis has a coronary heart disease preexisting the injury sustained at work. There was evidence that, although Lewis could not return to heavy physical labor, the reason he should not return to work was because of the coronary artery disease which reduced the flow of oxygen to the heart and caused pain. However, there was also testimony that the pain could not be divorced entirely from the myocardial infarction, although the myocardial infarction was not the reason Lewis could not return to work.

The above evidence supports the trial court’s finding that Lewis’s injury at work resulted in only a ten percent loss of ability to earn. In other words, although Lewis is almost totally disabled, there is evidence to support a finding that only a small portion, i.e. ten percent, of loss of ability to earn is attributable to the myocardial infarction brought on by work and heart disease.

Concerning Lewis’s final contention, we find no error in the trial court’s failure to assess the employer with a ten percent penalty for failure to pay benefits prior to the entry of the judgment. The statute that imposes such penalty, § 25-5-59, Code 1975, provides in pertinent part:

“If any installment of compensation payable is not paid without good cause within 30 days after it becomes -due, there shall be added to such unpaid installment an amount equal to 10 percent thereof, which shall be paid at the same time as, but in addition to, such installment.”

We find the phrase “without good cause” to be controlling. There was reasonable cause for delay of payment until the amount and duration of the installments due were ascertained by the trial court's judgment. Read News Agency, Inc. v. Mo- man, 383 So.2d 840 (Ala.Civ.App.), cert. denied, 383 So.2d 847 (Ala.1980).

In view of the foregoing, this case is due to be and is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

WRIGHT, P.J., dissents.

WRIGHT, Presiding Judge,

dissenting.

I must respectfully dissent from the opinion of the majority affirming the judgment of the trial court that claimant suffered only a ten percent permanent partial disability to earn and that he was not entitled to any further medical benefits.

I recognize the proposition that it is the duty of the trial judge to determine the extent of a claimant’s loss of ability to earn in a case of permanent partial disability. The trial judge must consider all the evidence including his own observation. He is not bound by the opinion of experts. However, he is bound by the evidence, or the lack of it, in formulating his judgment. This court has said many times that we look only to determine if there is any legal evidence to support the judgment of the trial court. Albertville Nursing Home v. Upton, 383 So.2d 544 (Ala.Civ.App.1980). I believe the trial court improperly denied Lewis the medical benefits to which he is entitled. The evidence indicates that, prior to his heart attack, Lewis suffered from arteriosclerosis, a narrowing or blockage of the arteries possibly resulting from heredity, obesity and hypertension. This condition reduces the amount of blood and in turn the amount of oxygen reaching the heart muscle. The majority finds that, because the arteriosclerosis was present prior to the attack, and because no evidence indicates any connection between that condition and Lewis' occupation, it is a noncom-pensable pre-existing condition. Thus, employer should not be required to pay the cost of catheterization to determine the degree of arterial blockage or the cost of surgery which expert testimony shows may be necessary to bypass the existing arterial blockage.

It is undisputed in the testimony of three treating physicians, one of them a heart specialist, that the strain of the job acting upon the existing physical condition of the employee, Lewis, precipitated his heart attack. The trial court found that the heart attack arose out of and in the course of his employment. It is further undisputed that Lewis continues to suffer chest pain which he had never experienced before the heart attack; that his physical activity is limited because of the early onset of severe pain or angina; that the pain does not come from the scar on the heart resulting from the attack, but the threshold at which the pain occurs is hastened by the preceding heart attack; that the scar on the heart exacerbates the pain. Thus it must be concluded from the evidence that the job acting upon the, at that time, benign condition of arteriosclerosis, precipitated the heart attack. The result, according to the undisputed evidence, is that Lewis is now ninety-two percent permanently physically disabled, with total loss of earning capacity. He can never again perform his job nor any work for which he has experience or qualification. It is nothing more than pure speculation to say that only ten percent of that disability is because of his heart attack or that he would be ninety percent disabled if he had never had a heart attack. I find no legal basis in the evidence for such finding.

The Workmen’s Compensation Act is remedial and is to be liberally construed to accomplish its beneficent purpose. All reasonable doubts presented by the evidence, or lack of it, should be resolved in favor of the employee. Tiger Motor Co. v. Winslett, 278 Ala. 108, 176 So.2d 39 (1965); Orkin Exterminating Co. v. Williams, 389 So.2d 935 (Ala.Civ.App.1980). Our case law spoke to the facts of the present case when it was held that preexisting conditions and diseases do not affect an award of compensation if the job-related injury combined with the pre-existing condition to produce death or disability. Allen v. Metro Contract Services, Inc., 421 So.2d 1289 (Ala.Civ.App.1982); Newman Brothers, Inc. v. McDowell, 354 So.2d 1138 (Ala.Civ. App.1977), cert. denied, 354 So.2d 1142 (Ala.1978).

The finding of the trial court of only a ten percent permanent partial disability after a heart attack could have been determined only by application of an apportionment because of a pre-existing infirmity— in this case the presence of arteriosclerosis. Though it has not been raised in either brief on appeal nor noted in the judgment, nor by the opinion of the majority here, § 25-5-58 of the Code provides for apportionment as follows: “If the degree or duration of disability resulting from an accident is increased or prolonged because of a preexisting injury or infirmity, the employer shall be liable only for the disability that would have resulted from the accident had the earlier injury or infirmity not existed.”

Section 25-5-58 has been in our Code since enacted in 1919. 1919 Ala.Acts 245 at 206. It was held in the case of Southern Cement Co. v. Walthall, 217 Ala. 645, 117 So. 17 (1928), not to apply to injuries resulting in death. The court in that case said:

“Where an injury, acting upon a prior diseased condition, materially hastens the death of the injured person from that disease, the injury is regarded in a legal sense, the proximate cause of death.... The apportionment of liability then provided for is by the very term of the statute referable to a state of disability and not to a state of death.”

Clearly, if it were not for the statute, the principle stated in the case would be applicable to “disability.”

However, the statute has been liberally applied to disability cases. After stating the fundamental principle that the employer takes the employee subject to his physical condition when he enters his employment, our supreme court said in the case of Ingalls Shipbuilding Corporation v. Cahela, 251 Ala. 163, 173, 36 So.2d 513, 521 (1948):

“We think the term ... infirmity in Sec. 288, supra, refer[s] to a condition which affects his ability to work as a normal man at the time of and prior to the accident, or which would probably so affect him within the compensable period.”

The court, citing Ingalls, again said in Kroger Co. v. Millsap, 280 Ala. 531, 537, 196 So.2d 380, 386 (1967):

“According to substantial evidence of plaintiff, the congenital defect in her back did not demonstrate itself prior to her injury on March 9, 1962. According to medical evidence, ... this defect might not have demonstrated itself during a compensable period except for the alleged injury.”

I discern from the enunciations of these cited cases that we correctly stated the proposition in our case of Thompson and Co. v. Cole, 391 So.2d 1042, 1045 (Ala.Civ. App.1980), when we said: “The key words in these two code sections are ‘disability’ and ‘infirmity.’ These terms refer to a condition which affects the ability to work as a normal man at the time of and prior to the accident.”

The evidence in this case is clear that Lewis had been working on the day of his attack as usual, performing the heavy manual labor of lifting sacks of cement, mixing them with sand and transporting the mixture by wheelbarrow where needed on the job. He had never before experienced any of the symptoms of arteriosclerosis nor had it affected his ability to work. Whether or when the latent disease would have manifested itself without the injury does not appear in the evidence. It appears from the testimony of the heart specialist that the procedure of catheterization of the heart, denied by the trial court, would be necessary to accurately determine the state of the disease or to predict when it might have otherwise become disabling without the heart attack.

It is my opinion that there is a lack of evidence to support an apportionment of the disability of Lewis and to deny him the medical expenses necessary to diminish his pain and restore him to employability so far as medically possible under the construction of the statute by the cases cited.

I would at least reverse the judgment in its finding of a ten percent loss of ability to earn and remand for taking of testimony relating to apportionment under § 25-5-58. If the diagnostic procedure of heart cathet-erization is necessary, to determine the extent of disability referable to a pre-existing infirmity, it should be ordered.

I consider that finding one only ten percent disabled to earn after suffering a heart attack from his employment, especially one who cannot earn but by hard labor, is on its face unjust.  