Document 70JKqkmpMv952eQD03Xa07nVB

W. WRAY ECKL CLAYTON H.FARNHAM s Aiu e l P. PIERCE, IR. ARTHUR H. GLASER JAMES M. POE JOHN A. FERGUSON, JR. THEODORE FREEMAN JOHN P. REALE CLIFFORD E. HARDWICK IV STEVAN A. MILLER RICHARD C. KI5SIAH H. MICHAEL BAGLEY HALL F. MCKINLEY III ANN BISHOP CONN THEODORE E.G. POUND G. RANDALL MOODY RICHARD T. CIERYN, JR. RICHARD K. O'DONNELL B. HOLLAND PRITCHARD DAVID A. SMITH KENNETH A. HINDMAN PAUL W. BURKE GEORGIA L. SCHLEY DANIEL C. KNIFFEN JAMES F. COOK, JR. JOHN C. BRUFFEY, JR. STEVEN D. BARNHART STEPHEN R. KANE MICHAEL A. O'QJJINN ROBERT J. HUNTER DEBRA L. MIXON BENNY C. PRIEST JULIA B. ANDERSON TERRY R, HOWELL JOHN G. BLACKMON, JR. W. BRADFORD SEARSON DREW, ECKL 8 FARNHAM ATTORNEYS AT LAW 1400 WEST PEACHTREE STREET P. O. BOX 7600 ATLANTA, GEORGIA 30357 (404.) 885-WOO RECEIVE DEC 19 I98f CofPvtflisftMgiijjL December 12, 1986 Mr. Tony Colangelo Contract Transportation/ The Sherwin Williams Company 101 Prospect Avenue, N.W. Cleveland, Ohio 44115-1075 RE: REDACTED Sherwin Williams Claim No. D/A: 12/06/85 v. Contract Transportation/ and INA/Aetna Insurance Company Dear Tony: Thank you for your recent phone call regarding an appeal in the above-styled matter. We have filed an appeal with the q Superior Court of Clayton County. W H A review of the file indicates that the claimant maintains that he began to have "an aching sensation" all over ^ his body while enroute from Texas to Chicago. While in Chicago, ^ < testified that the anching sensation and weakness became 22 progressively worse until he "thought he was dying." He continued to drive all the way back to Jonesboro and was admitted to Newnan Hospital early the following morning. A diagnosis of left hemis pheric cerebral thrombosis with right hemiparesis was made upon admission. Under O.C.G.A. 34-9-1(4), "injury" does not include thrombosis unless it is shown by a preponderance of competent and credible evidence that the condition was attributable to the performance of the usual work of the employee. It was our position at both the Administrative Law Judge and Pull Board levels that the claimant did not produce evidence to demonstrate that the cerebral thrombosis was attributable to his employment. The deposition of Dr. McNabb was taken to try to clear up some of the medical questions. Dr. McNaabb testified that the claimant's stroke was a "stroke in evolution," which means that there had already been an impairment of his blood flow by the time he noticed an onset of the aching sensation and weakness. N40432 0007-SWP-005805820 Dr e w , Ec k l & Fa r n h a m Mr. Tony Colangelo; RE: ___ December 12, 1986 Page Two REDACTED REDACTED Dr. McNabb also attributes the problem to long history of arterial sclerosis, hypertension, the claimant's smoking history, and the fact that his mother had also had a stroke. At the hearing, the claimant placed great emphasis on the fact that he had to move paint cans in Chicago in very cold weather. It was our position that the medical evidence demonstrated that the claimant had already begun having the "stroke" long before he ever reached Chicago. While Dr. McNabb did testify that the exertion in Chicago could have worsened the situation, he also testified that the exertion itself did not cause the stroke. There are two Court of Appeals decisions which will help us in our appeal to the Superior Court. In Johnson v. Boston Old Colony Insurance Co., the Court of Appeals held that there must be evidence to show that the claimed exertion caused the disease. The Court went on to say that pain suffered by an employee because he engages in physical exertion is not an accidental injury. In Carter v. Kansas City Fire & Marine Insurance Co., the Court of Appeals held that pain experienced by a claimant during exertion was merely a symptom of coronary disease. In Garter, the claimant's physician testified that the exertion at work dould have aggravated the condition. However, the Court of Appeals ruled that the exertion on the job must cause the disability. Q Ex3 In his Award, Administrative Law Judge Speed found that H exertion on the job probably aggravated his pre-existing *5 condition bringing about the actual thrombosis. This is not q consistent with the testimony of Dr. McNabb. Dr. McNabb testified g that the clotting had already begun before the alleged exertion. It is traditionally very difficult to prevail in an appeal to the Superior Court. As David indicated in his letter to you of November 13, 1986, the Superior Courts in Georgia are bound by the "any evidence" rule. Under this long-standing, often quoted principle, if there is any evidence at all to support an Award of the State Board, the Superior Court must affirm it. I will keep you apprised of all developments with our appeal to the Superior Court. If I can answer any questions r please do not hesitate to call me. y yours, JAF:pmw John A. Ferguson,Jr. 0007-SWP-00580582I CONFIDENTIAL