Opinion
36950.
DECIDED JANUARY 28, 1958.
Workmen's compensation. Fulton Superior Court. Before Judge Alverson. September 25, 1957.
Harry E. Monroe, for plaintiffs in error.
William W. Daniel, Ward, Brooks, Parker Daniel, contra.
1. While under Code § 114-412 there may not be a recovery of compensation for disability due to a pre-existing hernia, there may be a recovery of compensation due to an aggravation of a pre-existing hernia. Boswell v. Liberty Mutual Ins. Co., 77 Ga. App. 556 (2) ( 49 S.E.2d 117); American Mutual Liability Ins. Co. v. Gunter, 74 Ga. App. 500 ( 40 S.E.2d 394). Any indication to the contrary in Liberty Mutual Ins. Co. v. Blackshear, 197 Ga. 334 (2) ( 28 S.E.2d 860) was obiter because the question here involved was not raised in the petition for certiorari to the Supreme Court.
2. The compensation board's finding which based a denial of compensation on the fact that the claimant's claim was not based on the aggravation of a pre-existing hernia was erroneous because the request for a hearing was broad enough to include aggravation. The request for a hearing was for the reasons of "disability, liability and medical expense." Nor did the fact that the claimant was testified that the hernia did not pre-exist the accident bar a recovery in the absence of conclusive evidence that the claimant was wilfully testifying falsely, assuming but not deciding that such conduct would be a bar. The claimant's physician testified that the hernia was pre-existing but that it was giving no trouble.
The judge of the superior court did not err in reversing the award denying compensation with direction that the case be recommitted to the board to hear evidence as to whether the claimant has suffered an injury in the course of his employment which aggravated a pre-existing hernia which incapacitated the claimant for work and hear evidence as to the period of time during which the claimant was totally disabled and to make an award accordingly.
Judgment affirmed. Quillian and Nichols, JJ., concur.