Opinion
35257.
DECIDED SEPTEMBER 27, 1954.
Workmen's compensation. Before Judge Shaw. Fulton Superior Court. April 16, 1954.
Moise, Post Gardner, for plaintiff in error.
Len B. Guillebeau, contra.
The State Board of Workmen's Compensation, under all the evidence both lay and expert, must decide the ultimate issues before the board, as we have set forth in the body of the opinion.
DECIDED SEPTEMBER 27, 1954.
This case arose under the Workmen's Compensation Act, and as disclosed by the record was heard by a single director, the purpose of the hearing being to determine "Liability, disability, compensation, and medical." Counsel for the employer stipulated that the claimant, Charles W. Speaks, was an employee of Fulton Bag Cotton Mills, that he was injured within the meaning of the act on August 17, 1953, that he was making over $48 per week, and that the claimant had been paid no Workmen's Compensation benefits at all, although he had been furnished medical treatment. In view of the argument for both parties, we deem it expedient in this case to set forth the evidence as revealed by the record.
The claimant testified as follows: "That on August 17, he was running a weaving job and the loom had slammed off on an empty quill. He put his hand under the battery to free the shuttle of the empty quill and the loom was still on and when he pulled that quill out, the shuttle freed the loom and it turned over, catching his hand and twisting his arm; that his employer sent him to Dr. York about two hours after the accident happened and he saw Dr. York again on Wednesday and again on Friday; that on Friday, Dr. York told him that some bone was split and he put him a splint; that the injury was to his right arm and that he stayed in that splint long enough for it to get monotonous; that there was a hole cut in his right [arm] above his hand in the arm about an inch above the wrist joint; that he did not know if the tendon was severed, but it was pretty badly bruised because about two-hundred pounds of pressure hit his arm twice; that he had suffered very much pain and that he could not get a job to make a living; that weaving was his regular occupation and that he could not do this type of work with his right arm because he did not have enough strength to do it; that he had lost about 75% use of that right arm on account of this injury; that he could dress himself with it, but he could not do any work; that since he was injured, he had not been able to obtain employment that he could make any money out of; that there had not been any improvement in his condition in quite some time; that he had worked since the injury, but he could not keep up the job and he had to quit; that he worked for the same company for four or five days blowing off the loom with his left arm; that they sent him back home every day because they said they did not have anything for him to do, and he didn't go back any more.
"On cross-examination, witness testified that he did not tell them he was going to quit work and go back to Alabama; that he had to go back to Alabama because he wasn't working and he had to go to live with his mother; that he could have done the work at Fulton Bag that he was doing after the injury, if they would have let him work, that he also tried to work at the Howard Johnson Restaurant learning to be manager, but the job required physical labor such as plumbing and things like that and he could not do it in the condition his arm was in, so he had to quit; that his salary at Howard Johnson Restaurant was $140.00 a month. After he quit that job, he went back to Alabama, where he tried to do some carpenter work, but could not do it.
"On redirect examination witness testified that after the injury he went back on his regular job as a weaver and tried to work, but after about an hour and a half he had to give it up."
Dr. Thomas P. Goodwin testified in behalf of the defendant as follows: "That he was an orthopedic surgeon and that he examined Mr. Speaks, at the request of Dr. York, on November 19, 1953, which was the first time he had seen him; that he examined his wrist and right hand and made X-rays and the only thing that showed up on the X-rays to be abnormal was the tip end of the styloid process, the knob end of the small bone of the forearm, the tip end was cracked off and it had not reunited; that he checked to see if the ligament was pulled loose and found that it was good and strong and functioning as it should; that Mr. Speaks did not have full strength, but that he could see no reason why he could not have full strength when he gets back to using it and exercising it; that he found nothing broken or out of place; that he did not think he had as good a hand and arm as he will have; that he did not believe Mr. Speaks would have over 5% disability, if that much; that he thought Mr. Speaks had a total disability following the injury, but for a couple of months or more; that Mr. Speaks is able to do some work now, but not heavy manual labor; that he may have as high as 25 or 35 per cent temporary disability, but there was no evidence of any permanent disability.
"On cross-examination witness testified that he could see no reason for a man of his type to lie down on $24.00 a week compensation instead of working; that the best thing he could do for the hand would be to use it actively; that he needs active exercise to get full use of his hand."
Dr. Jeffery York testified in behalf of the defendant as follows: "That he was the physician who attended injured employees at Fulton Bag; that he examined Mr. Speaks and found that he had several injuries, but all of them were of minor nature, he had a contusion and abrasion and laceration wound of his right wrist, medial side, palmar aspect. He had a little contusion and abrasion above the right wrist on the medical side, dorsal aspect. Also a small lacerated puncture wound of the lateral side, palmar aspect of the right wrist and a small chip fracture of the right ulna. It was a small chip fracture of the styloid process of the ulna bone. Nothing in the shaft, just a little protrusion on the end of the bone, called the styloid process. The injury to the ligaments to which this ball is attached, which goes over that side of the wrist, would give him some discomfort on use. The shuttle carrier hitting that gave some contusions of his entire wrist. We stabilized the wrist with splints temporarily, not because it was necessary for union of the bone, but simply for his comfort protection while he proceeded with some other job; that when Mr. Speaks went to him, he was disabled as far as using that hand was concerned; that ordinarily a man using his hand as he does, it would probably take from two or three months until he has no discomfort at all in the hand; that the last time he saw Mr. Speaks was the 18th of November and he found that he was practically well except for some discomfort for which he feared he had in using his hand and wrist and of course that small chip fracture had no bony union; that he would say that he was totally disabled for weaving work six or eight weeks; that in his opinion he is able to work with that hand now, and that exercising the hand would be of help and would cause the strength to come back more quickly; that he should be able to do weaving work; that from the standpoint of the fracture of the wrist, he has reached maximum improvement, but he did not think he had reached his full recovery yet because of the things he complained of, weakness of the wrist; that he should not have any permanent partial disability at all because the more he used his hand, the better it would get."
Ernest W. Howard testified in behalf of the defendant as follows: "That he was Director of Industrial Relations at Fulton Bag Cotton Mills; that he had general jurisdiction of Workmen's Compensation matters out there; that a report was made up on August 18, 1953, in their clinic to the State Board of Workmen's Compensation; that they sent Mr. Speaks to Dr. York right away; that they waited two days before sending in the report in order to try to get a settlement from the employee [Speaks]; that they had no intention of hiding this injury from the State Board of Workmen's Compensation; that Mr. Speaks went to work at the mill on the 10th day of August; that he did not work on the 18th of August, but he returned to work on the 19th, and worked until the 27th blowing off looms with a compressed air hose; that for the week ending the 22nd of August, he worked 32 hours and received $33.45. Then on the week ending the 29th of August he worked 32 hours and received $33.44. That he laid out on Friday of the week of the 29th; that there would still be work at the mill for him if he would take it; that Mr. Speaks told him he was quitting and going back to Alabama to live."
Charles W. Speaks recalled to the stand, testified further as follows: "That he reported to Fulton Bag Cotton Mills as long as they would give him anything to do; that during the last four days he reported out there they did not give him anything to do; that he reported to Mr. Jesse Gavet; that he did not make any money the last four days he went out there; that they told him they did not need him, to come back tomorrow; that Mr. Gavet is the second hand and he is the one who puts them to work or sends them back home."
The report of Dr. McClung was admitted in evidence by agreement, and reads as follows: "Referred by: Mr. Len B. Guillebeau, 1650 Wm. Oliver Building, Atlanta, Georgia.
"History: The above captioned patient reported to my office for examination of right upper extremity and, particularly, of right wrist. Following is a report of my findings: The history, as given by the patient, is that he was injured on August 17, 1953, while employed by Fulton Bag Cotton Mills. At this time, his hand was caught in a machine, and he received a severe twist of right wrist.
"Chief Complaints: At the present time, they are severe weakness of right forearm, and impairment in grip of right hand.
"Physical Examination: This patient is a well developed and nourished white man who gives his age as 28, height 5 feet 11 inches, weight 150 pounds. Examination of this patient is of no particular importance except to right forearm and hand. First of all, it is noted this patient has about one inch atrophy of right arm and forearm. Motions of forearm and hand are impaired 50%. The grip in right hand is at least 50% impaired. The elbow and shoulder show no signs of injury.
"X-Ray Examination: AP Lateral Views of Right Arm Wrist Findings: There is an old fracture of right styloid process of ulna with poor apposition of fragments, and excessive callous formation. There is no evidence of disease or infection of the bones of forearm, wrist or hand.
"Diagnosis: (1) Old fracture of right styloid process of ulna with poor apposition of fragments. (2) One inch atrophy of right arm and forearm, with 50% impairment in motions of hand and forearm. (3) 50% loss of grip, right hand.
"Comment: I think this patient has made the usual progress for patients who have received injuries of this kind. I believe, in the end, he will make an uneventful recovery, but it may take three or four months before he reaches that point. Due to the severe atrophy this man presents in right arm, he, unquestionably, should have treatment for this condition. I would strongly suggest that, after three or four months, I re-examine this patient to determine whether maximum improvement has been reached, and if he carries any permanent disability. At the present time, he has 50% disability of right arm."
The State Board of Workmen's Compensation made the following findings of fact and award: "Findings of Fact: This case was heard by the late R. O. Jackson, Deputy Director, and was not decided by him during his lifetime and it becomes my duty to write this award.
"The purpose of this hearing was to determine liability, disability compensation and medical and the defendants stipulated that Mr. Speaks, the claimant, was employed by Fulton Bag Cotton Mills and that he was injured within the meaning of the Act on August 17, 1953, and was earning in excess of $48.00 per week and he had been paid no compensation, though he had been furnished medical treatment.
"After thorough consideration of all the evidence in the case, I find as a matter of fact that claimant sustained an accident and injury on August 17, 1953, while employed by the Fulton Bag Cotton Mills, which arose out of and in the course of his employment, the injury being to his right hand and arm, but that he stayed on the payroll of the said employer through August 29, 1953. The loss of earnings during these few days is not definite enough on which to base a partial loss of earnings during this period, but from all evidence, I find as a matter of fact that claimant suffered temporary total disability as a result of said injury for a period of eight weeks commencing August 29, 1953, and that at the time of the hearing, he had a partial loss of use of his right hand of 30%, which from all the evidence, I find as a matter of fact, to be a permanent partial injury or loss of use of claimant's right hand and that he is entitled to compensation at the rate of $24.00 per week commencing the 5th day of September, 1953, and continuing for a period of eight weeks covering temporary total and the end of which time, claimant is entitled to compensation at the rate of $7.20 per week covering 30% permanent partial loss of use of his right hand and continuing for a period of 150 weeks and is entitled to all necessary and reasonable medical expenses, not to be in excess of the maximum provided in the Act.
"There was a variation in the evidence of the claimant, who appeared and testified in his own behalf and the three eminent physicians who testified, or rather, two of them testified and one furnished a written report which was admitted in evidence by agreement, but I am convinced that the above findings of fact is viewed from the record and not from one who heard the case and prepared a conclusion.
"Award: Wherefore, based on the above findings of fact, Fulton Bag Cotton Mills, employer and self-insurer, are directed to pay Charles W. Speaks, claimant, compensation at the rate of $24.00 per week commencing September 5, 1953, being seven days from the date he last worked under the evidence of his employer, and continuing for a period of eight weeks covering temporary total as a result of said injury at the end of which period, they will continue to pay claimant compensation at the rate of $7.20 per week covering 30% permanent partial loss of use of his right hand as a result of said injury for a period of 150 weeks and are further directed to pay any and all necessary and reasonable medical expenses incurred or to be incurred as a result of said injury, not to exceed in the aggregate the sum of $750.00, the maximum provided in the Act. All accrued compensation is directed to be paid immediately. And it is so ordered this the 4th day of January, 1954.
State Board of Workmen's Compensation, D.C. Chalker, Deputy Director." The award was appealed by the employer to the full board. In due course the board affirmed the award of the single director. The case was then appealed to a judge of the superior court, who affirmed the award of the State Board of Workmen's Compensation. On this judgment the employer assigns error.The gravamen of the contention of the employer is: (a) that there was no medical evidence of any permanent disability, and (b) that there was no evidence that the claimant had reached his maximum improvement. The hearing took place three months and three days after the admitted injury. Since we have set forth the evidence of all the witnesses, we will not reiterate any evidence here. It is contended by counsel for the employer that a permanent partial disability gives rise to various obligations which are considerably more than obligations for temporary disability. This contention is true as a matter of law under Code §§ 114-417, 114-714, and 114-709. Our attention is first called by counsel for the employer to Cone v. Davis, 66 Ga. App. 229, 236 (6) ( 17 S.E.2d 849), wherein this court said: "The plaintiff was asked: `From all of the past experience and suffering that you have had, an inability to get well and walk on that leg, do you think it is permanent?' Defendant's counsel interposed an objection that the question was leading and an answer thereto would be in effect a medical opinion which she could not give. The objection was overruled. The plaintiff was then asked: `Just go ahead; what was it you said as to whether in your opinion your injuries are permanent?' She answered: `I will not ever be well; ever since I got hurt I get worse instead of better.' The defendant contends that the plaintiff being a lay witness the question and answer should have been excluded for the reasons stated in the objection. `The opinions of experts, on any question of science, skill, trade, or like questions, shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.' Code § 38-1710. `Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor, but if the issue shall be as to the existence of a fact, the opinions of witnesses, generally, shall be inadmissible.' Code, § 38-1708. `The class of questions here referred to must be such as lie within the range of common opinion.' Atlanta Street R. Co. v. Walker, 93 Ga. 462, 465 ( 21 S.E. 48). That is, an opinion which is supposed to be within the common knowledge, experience, and education of men. 20 Am.Jur. 651, section 781 (5). The injury here was substantive and of such a nature that a witness of only common knowledge could not with reasonable certainty know whether or not the injury would be permanent. Id. 649, § 778 (19). It was error to allow a party who was a witness to testify that in her opinion her injury was permanent."
Our attention is called also to Keel v. American Employers Insurance Co., 44 Ga. App. 773 ( 162 S.E. 847), and we quote therefrom as follows: "Before an award can be made, under section 32 of the compensation act, for the permanent partial loss of a member, it is necessary to ascertain definitely such permanent partial disability, and it is obvious that this can not be done until the maximum improvement in the condition of the member has been reached. See American Mutual Liability Ins. Co. v. Braden, 43 Ga. App. 74 ( 157 S.E. 904). In the instant case the award of the commissioner, made under section 32 of the compensation act, fails to show that he passed upon the question of fact whether the claimant's injured arm had reached its maximum improvement."
Our attention is called to Royal Indemnity Co. v. Babb, 66 Ga. App. 51 ( 16 S.E.2d 907). While counsel did not quote from this case, we quote as follows: "1. While it is not competent for a claimant testifying as to the change in condition of an injured member, for the purpose of showing an increase in permanent partial industrial handicap, to state that in her opinion such changed condition of injury is permanent ( Atlanta Street Railroad Co. v. Walker, 93 Ga. 462 (2), 21 S.E. 48), nevertheless she may state the facts relatively to such condition, and from such facts, together with the remaining evidence, the director or board may determine the question of permanency.
"2. Notwithstanding the testimony of a witness in a subsequent hearing is the same as to maximum percentage of industrial handicap as that given on a former hearing, when the director based the award on other testimony, showing a lower percentage, such testimony is not incompetent, when taken in proper relation to all evidence in the case, to establish a greater percentage on the subsequent hearing on a claim of change of condition."
We will discuss in reverse order the three cases to which reference has been made hereinabove. Royal Indemnity Company v. Babb holds that a claimant might state the facts, and from such facts and all other evidence in the case the State Board of Workmen's Compensation may determine the question of permanency of the injury. Counsel for the employer, interpreting that decision, say: "This means that the holding was supported by other evidence, and such is not true in the case at bar." We disagree with eminent counsel as to this conclusion. In determining permanency of an injury, the board is authorized to take into consideration the nature of the injury, the date of the injury in relation to the date of the trial, and the progress of the healing throughout the time from the infliction of the injury. This whole record before us is replete with such evidence which the board did consider. With reference to Keel v. American Employer's Insurance Co., supra, we call attention to Liberty Mutual Insurance Co. v. Clay, 180 Ga. 294 ( 178 S.E. 736), wherein the Supreme Court, among other critical statements regarding the Keel case, said: "We disapprove the decisions in American Ins. Co. v. Braden, and Keel v. American Ins. Co., supra, and Stone v. American Ins. Co., 42 Ga. App. 271 ( 175 S.E. 795), so far as they may conflict with the views herein expressed." We revert now to Cone v. Davis, supra, and the quotation therefrom. In examining the testimony of the claimant in the instant case, we find no reference by the claimant regarding the permanency of the injury. He only gave in his evidence his condition from the time of the injury to the time of the trial, over three months. The authority — and we think the duty — then devolved upon the State Board of Workmen's Compensation to determine both the maximum recovery and the permanency of the disability. We are quite sure that the full board, as well as the superior court, considered both questions. We say this because the brief of counsel here is to all intents and purposes the brief they filed with the State Board of Workmen's Compensation and with the judge of the superior court. Moreover, in interpreting the award in the instant case, the proper construction is that the award was based upon maximum recovery and permanency.
Counsel for the employers further call our attention to the principle of law that, where the facts in the case are equally consistent with either of two theories, they prove neither. Our conclusion is that this principle is not applicable under the record and facts of the instant case, and so we will not discuss it further.
2. We think it proper in this connection to call attention to certain other cases bearing on the issues before us, called to our attention by counsel for the claimant. In Atlantic Steel Co. v. McLarty, 74 Ga. App. 300, 304 ( 39 S.E.2d 733), we find the following: "It has been held that the testimony of an injured person as to the extent of his injuries may be believed in preference to the opinions of `a whole college of physicians' testifying to the contrary. See City of Atlanta v. Champe, 66 Ga. 659, 663, Southern Ry. Co. v. Tankersley, 3 Ga. App. 548 (1) ( 60 S.E. 297), Southern Ry. Co. v. Petway, 7 Ga. App. 659 (1) ( 67 S.E. 886), and Great Atlantic Pacific Tea Co. v. Dupee, 71 Ga. App. 148, 153 ( 30 S.E.2d 365). In the final analysis, the testimony of the doctors as to the cause of the claimant's blindness was in the nature of opinions based on their observation and experience, while the claimant's testimony as to the cause, nature and extent of his injuries was based on personal facts and experience better known to him than to anyone else. See Hall v. General Accident Assurance Corp., 16 Ga. App. 66 (2), 80 ( 85 S.E. 600), Bituminous Casualty Corp. v. Jackson, 68 Ga. App. 447 ( 23 S.E.2d 191), and Maryland Casualty Co. v. Hopkins, 71 Ga. App. 175 ( 30 S.E.2d 357.)" Autry v. General Motors BOP Association Plant, 85 Ga. App. 500 (1) ( 69 S.E.2d 697) states: "A medical expert witness may give his opinion as to the cause of an injury; but where the cause of the injury constitutes the ultimate issue of fact to be determined by the fact-finding tribunal, this opinion is not absolutely binding on such tribunal. To hold otherwise would preclude such tribunal from exercising its proper function. The fact-finding body must take the evidence of the medical expert along with all the other facts and circumstances of the case, and thus determine the ultimate issue."
It is our opinion that the superior court did not err in affirming the award of the State Board of Workmen's Compensation.
Judgment affirmed. Townsend and Carlisle, JJ., concur.