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ROAD MAINTENANCE SUPPLY, INC. AND WESTERN CASUALTY & SURETY COMPANY v. DEPENDENTS OF JAMES L. MAXWELL

JULY 30, 1986

ROAD MAINTENANCE SUPPLY, INC. AND WESTERN CASUALTY & SURETY COMPANY
v.
DEPENDENTS OF JAMES L. MAXWELL, JR., DECEASED



BEFORE ROY NOBLE LEE, P.J.; ROBERTSON AND ANDERSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This workers' compensation death benefits case calls for a sensitive application of the familiar" found dead "presumption. The Mississippi Workers' Compensation Commission, adopting the opinion of the Administrative Judge,

 found that the deceased died at a place where his duties required him to be during his regular hours of work and that the cause of his death was unexplained and unknown. The Commission thus applied the presumption to award death benefits.

 In the face of the presumption, the employer and carrier failed to come forward with credible evidence that decedent's work activities did not cause or contribute to his death. In this state of the record the Commission correctly held that death arose out of and in the course and scope of the worker's employment. We affirm in part. Because the Commission ignored uncontradicted medical evidence that, for several years prior to his death, the worker suffered cardiovascular disease, we remand for apportionment.

 II.

 A.

 This matter arises out of the death of James L. Maxwell, Jr. on February 28, 1980, in Tishominao County, Mississippi. At the time Maxwell was 49 years of age. On the day of his death Maxwell was employed as a truck driver for a subcontractor on the Tennessee-Tomkigbee Waterway Project and was hauling stone material to the job site. Two co-workers, Willard T. Reno and William H. Whitaker, were in the immediate vicinity at the time of Maxwell's death. Their testimony, in substance, was that Maxwell was standing on some rocks behind Reno's truck, with one hand on the bed of the truck and the other on the tailgate. Maxwell fell for no apparent reason.

 When Reno reached him, Maxwell was lying on the ground, a gash in the back of his head. Neither Reno nor Whitaker knew what caused Maxwell to fall. Maxwell was rushed to the Tishomingo County Hospital where he was pronounced dead by Dr. Kelly Segars. Dr. Segars did not perform an autopsy, nor did anyone else. He did indicate on the death certificate that the" immediate cause "of death was" acute myocardial infarction ". Dr. Segars examined the laceration on the back of the decedent's head and gave his opinion that it was not related to the cause of death.

 Dr. Al Flannery gave testimony regarding Maxwell's medical history. Dr. Flannery is engaged in family practice in Iuka, Mississippi. He was Maxwell's personal physician from June 10, 1978 until Maxwell's death some one year, eight and a half months later. Dr. Flannery testified that Maxwell had a history of heart trouble dating back at least to 1975, that Maxwell had had a blackout spell associated with heart

 fluttering approximately a year before his death and that in the ensuing year Maxwell was taking heart medicine Dr. Flannery had prescribed. Dr. Flannery reviewed the testimony of the fact witnesses to Maxwell's death together with the testimony of Dr. Segars. Based upon all of this prior testimony - including the description of Maxwell's work activities immediately preceding his death, coupled with his own personal knowledge of Maxwell general state of health - Dr. Flannery offered his opinion

 that this man suffered most likely a Stokes-Adams attack at the time of this, and that this was most likely precipitated either by severe cardiac arithymia or a myocardial infarction and that this was the cause of this man's death. . . . I don't think it was anything to do with the work that he was doing. This man could have had a similar spell walking down the street, or he could have had them at home. He could have had them anywhere. He just happened to be at work when he had them.

 Procedurally this workers' compensation proceeding was commenced on February 23, 1982, when Betty Jean Maxwell of Burnsville, Mississippi, on behalf of herself and her two children, filed a motion to controvert seeking death benefits. After several hearings, the Administrative Judge on August 15, 1983, relying upon the" found dead presumption "held that Maxwell had presented a compensable claim and awarded full death benefits. On February 28, 1984, the Mississippi Workers' Compensation Commission adopted the opinion of the Administrative Judge and affirmed. Thereafter ...


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