Opinion
35221.
DECIDED JULY 15, 1954.
Workmen's compensation. Before Judge Shaw. Fulton Superior Court. March 23, 1954.
Saul Blau, for plaintiff in error.
Bryan, Carter, Ansley Smith, M. D. McLendon, contra.
The evidence under this record does not demand a finding in favor of the claimant.
DECIDED JULY 15, 1954.
This is a case arising under the Workmen's Compensation Act brought by Troy C. Williams, claimant, against Nickels Petroleum Company, the employer, and U.S. Fidelity Guaranty Company, insurance carrier. The hearing director found against the claimant. The claimant appealed the award to the full board, which approved the award of the hearing director. The claimant assigns error here on the judgment of the superior court affirming the award of the full board.
The evidence is set out very ably in the evidence statement of the hearing director, which we quote as follows: "Troy C. Williams, claimant, being duly sworn, testified in substance as follows: On or about September 16, 1953 he was employed at the Nickels Petroleum Company as porter and helper with duties of waiting on customers and `curbing' customers, which means putting gas in cars, changing tires, washing and greasing them, just general duties necessary around a service station; with wages of $40.00 a week.
"The boss, on September 16, 1953, told him to get a case of oil out of the office and put it in his car. When he picked up the case of oil, which weighed about 24 pounds, he felt a stinging pain — a sharp pain, same as it did in 1944, when he was lifting and had a hernia. He had an operation and spent some time in the hospital. The hernia was completely healed. When he picked up the case of oil he recognized the type of pain and the protrusion. He reported it to Mr. Reese the same afternoon but he doesn't know whether he remembers it or not. His boss was not in the office. The second day after the accident he went over to the station to get his money and he told the secretary he would have to go to the doctor because he hurt himself a couple of days before. He went to the Veteran's Hospital and the doctor there examined him and said he had a hernia on the right side; he went back the following Monday for another examination and he then told him he would have to go to the hospital for an operation. He can't do the same type of work now that he did before the operation — he can't do `no straining.' He hasn't worked for the Nickels Petroleum Company since the 16th of September of this year — he finished working that day after the injury which was about twelve-thirty or one o'clock; in fact he worked on until eleven o'clock that night.
"The night supervisor told him he could use the car to go get some whisky but instead of getting the whisky he went home in the car; the car he used belonged to two colored men who had no connection with the station — it was parked and he used it. When Mr. Hannal and Mr. Reece came to his house they bawled him out about the car and he didn't have a chance to tell them about the accident then. (Claimant was confused as to when he went to work for the Nickels Petroleum Company and the actual date he was hurt.)
" Dr. Rufus Askew, being duly sworn, testified in substance as follows: That he examined the claimant, Mr. Williams, on November 3rd and he had a right recurrent inguinal hernia; that it is possible to obtain an inguinal hernia any way; that it can recur without any known accident because it is a hernia which has reappeared in the center of a scar where a previous hernia was repaired in 1949, and a certain percentage recurs without coma [trauma?] of any sort; that the hernia could have appeared from nothing but walking; that the weight of his intestinal contents could cause it to recur. That he had examined the claimant previously on several occasions; the last time prior to this last mentioned examination was in 1950, at which time he did not have a hernia but had at some previous time and it had been repaired; that the claimant had a hernia scar but did not have a hernia; that on the last examination, November 3rd, the claimant did have a hernia.
"At this examination the claimant gave a history, that while he was working with Nickels Petroleum Company he lifted a case of oil and as a result had a hernia; in case the claimant has an operation there would be no permanent results and he would have to remain in the hospital for about six days; the total cost of which would be $220.00 for the operation and hospital.
" Troy C. Williams, claimant, was recalled to the stand; he stated that he didn't see the car in front of the house on the morning that Mr. Grant and Mr. Hannel came to his house.
" Sidney Grant, being duly sworn, testified in substance for the defendant, as follows: He is employed in the service department of the Nickels Petroleum Company and claimant, Troy Williams, started working for the same company on the 17th of September and finished on the 23rd of the same month. He reported to him after he stopped working there that he had had an accident; that was the day after he took the car and after he had been fired; he did not receive any information from anyone that Williams had sustained a hernia before he was fired — he had not told anyone before he was fired that he had hurt himself. Williams' salary was $37.50 a week for twelve hours a day — six-day week.
"He was around the station in the afternoon that claimant claims to have been hurt and saw Mr. Williams and he could have mentioned hurting himself but he didn't; he seemed to be all right. It was customary for him to lift cases of oil and he never seemed to suffer any discomfort. He was paid $37.50 a week.
"On the 24th of September he went to the address originally given to them by Troy Williams and he wasn't there; they gave him another address and that is where he found Troy in bed. The reason they went to his house was that when they got to the station that morning they were told that Troy had taken the car belonging to two colored men; the car was stolen. The two colored men were with him and they drove their car back to the station and on reaching there himself the men told him the car had been damaged; the front bumper was torn loose from the frame of the car; he had the damage repaired for the men at Hix-Green Company at a cost of $60.00.
" Moore C. Hannel, being duly sworn, testified in substance as follows: That he is partner of the Nickels Petroleum Company and Troy Williams never, at any time, mentioned having an accident while at work; that he did put a case of oil in the car on September 23rd, and he left but returned later at which time Troy had an opportunity to advise him that he had had an accident.
" W. E. Reece, being duly sworn, testified in substance as follows: That he works for the Nickels Petroleum Company and knows the claimant, Troy Williams; that he was supervisor and the claimant was porter who never reported having an accident and hurting himself; he never complained of anything; that he is not working for the Nickels Petroleum Company now but was there between the 20th of September and 30th; that he quit the employment of Nickels Petroleum Company because he checked short; that he drank a little off the job but not on the job; that Williams, to the best of his knowledge, never said anything about feeling bad.
" Sidney Grant, being duly sworn, testified in substance as follows: He has never seen Mr. Reece drinking on the job nor has he ever seen him with any liquor or take a drink."
The findings of facts are as follows: "This case was heard before the late Judge R. O. Jackson on November 6, 1953, and it becomes necessary for the undersigned to write the findings of fact and the award therein.
"This is the case which the claimant alleges he sustained an accident and injury resulting in a hernia. In hernia cases it is necessary for the claimant to definitely prove to the satisfaction of the board, (1) that there was an injury resulting in a hernia; (2) that the hernia appeared suddenly; (3) that it was accompanied by pain; (4) that the hernia immediately followed an accident; (5) that the hernia did not exist prior to the accident for which compensation is claimed. (Code 114-412). The claimant testified that he was employed by Nickels Petroleum Company as a janitor, helper, or porter with duties of waiting on customers and `curbing' customers, which means putting gas in cars, changing tires, washing and greasing them, just general duties necessary around a service station. That his wages were $40.00 a week and that on September 16, he was handling a case of oil and he testified that he picked up the case of oil and recognized the type of pain as being the same type as when he was lifting something in 1944 and had a hernia and had to have an operation and spend some time in the hospital. That this hernia was completely healed. That he reported it to Mr. Reece the same afternoon, but he didn't know whether he remembers it or not and he continued to work. He testified that he had not worked for the Nickels Petroleum since the 16th of September of this year. That on that night the supervisor told [him] he could use the car to go get some whisky, but instead of getting the whisky, he went home in the car; the car he used belonged to two colored men who had no connection with the station — it was parked and he used it. Mr. Hannal and Mr. Reece came to his house and bawled him out about the car and he didn't have a chance to tell them about the accident then. After considering the claimant's evidence and all the other evidence adduced at the hearing in the case, and giving it thorough consideration, I am reminded that the hearing director occupies the position similar to the jury in our superior court and they are governed by the following rules of evidence:
"` Determination of where preponderance of evidence lies. — In determining where the preponderance of evidence lies, the jury may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity for knowing the facts to which they testified, the nature of the facts to which they testified, and the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear from the trial. The jury may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.' ( 80 Ga. 232, 5 S.E. 26; 62 Ga. 411; 67 Ga. 236; 68 Ga. 91). (Code 38-107).
"After considering all the evidence in this case, I find as a matter of fact that Troy C. Williams, claimant, has failed to carry the burden of showing definitely [by] the preponderance of the evidence that he has a claim for which he is entitled to compensation and that his claim must be denied."
The award reads as follows: "Wherefore, based on the above findings of fact, the claim of Troy C. Williams against Nickels Petroleum Company, employer, and/or U.S. Fidelity and Guaranty Company, insurance carrier, for compensation and medical is denied."
The findings of fact and the award were signed by D.C. Chalker, deputy director due to the death of Mr. R. O. Jackson.
Learned counsel contends that the evidence which we have set out in considerable detail and which we consider an accurate survey of what each witness testified, is insufficient. We have set out the evidence for the reason that the claimant contends that an award was demanded in his favor against the defendants, while on the other hand, counsel for the defendants contend that the evidence was conflicting and, therefore, the State Board of Workmen's Compensation as a factfinding body were authorized to find that there was competent evidence to sustain the award against the claimant. It will thus be seen that the question to be decided so far as this court is concerned is whether or not there is competent evidence to sustain the award. Counsel for both parties cite many decisions in support of their respective contentions. As we see it, the controlling question is whether the evidence supports the contentions of the claimant rather than the contentions of the defendants, under this record. There seems to be very little contention as to the law applicable on the one side or the other. It is purely a question on either side as to what the evidence reveals. If this claimant is right in his contentions that the facts demand an award in his favor, then the law is that the judgment of the superior court should be reversed and on the other hand, if the contentions of the defendants are right as to the facts, it is equally clear that the law is with them. Therefore, under this situation there is little more for this court to do than to determine what is the status of the facts. So, we will not discuss the decisions cited or the statutory law very much in detail. In a hernia case the claimant must meet the requirements set out in Code § 114-412. That section reads: "Compensation for hernia or for death therefrom. — In all claims for compensation for hernia resulting from injury by accident arising out of and in the course of the employee's employment it must be definitely proved to the satisfaction of the Department of Industrial Relations: First, that there was an injury resulting in hernia; second, that the hernia appeared suddenly; third, that it was accompanied by pain; fourth, that the hernia immediately followed an accident; fifth, that the hernia did not exist prior to the accident for which compensation is claimed . . ."
It is apparent from the award that the board was not satisfied that the claimant had carried the burden required by him under that Code Section. In Liberty Mutual Ins. Co. v. Blackshear, 197 Ga. 334, 337 ( 28 S.E.2d 860), the Supreme Court said: "The rule under our workmen's compensation law as to hernia is somewhat different from that applying to other injuries, in that not only must the hernia have resulted from injury by accident arising out of and in the course of the employee's employment, but it must be definitely proved to the satisfaction of the Industrial Board that such resulting hernia `did not exist prior to the accident,' and `was accompanied by pain,' and `appeared suddenly' and `immediately following [the] accident.'"
There seems to be no evidence save that of the plaintiff that he had an accident arising out of and in the course of his employment and that he suffered an injury resulting in hernia and that the hernia appeared suddenly, that it was accompanied by pain, etc.
There is no sufficient evidence in the record from which the board could find that the plaintiff made any complaint or said anything to his employer about an accident or an injury at the proper time. He had ample opportunity to notify his employer immediately after the injury. The employer was available later in the afternoon (from about 3:30 or 4:30 p. m. until between 11 and 12 that same date). After the injury the claimant remained on his job until about 10 or 11 on the same date, without evidencing any pain. It is true that the claimant testified that he went to the hospital the afternoon following the alleged injury, but this testimony, like a great deal more of his testimony, is not corroborated. The only competent evidence other than the evidence of the claimant is to the effect that the claimant had a hernia at the time of the alleged injury which was on November 3, 1953, approximately five weeks after the claimant had been fired. The board was authorized to find that the claimant left his employment at 11 or 12 on the date of the alleged injury; he carried with him a car which had been left at the place of business of the employer for repairs. The board was authorized to find that the claimant took the car without permission, allegedly for the purpose of going for liquor; that he did not return on the morning following the alleged injury and that his employer had to go for the car which the claimant had taken without authority and that the claimant was not in or about the house where he was staying. The defendants discharged the claimant and he never worked any more with them after the date of the alleged injury.
The claimant claimed that he mentioned the injury to some company employees. This the company employees denied. So it seems that under all the facts and circumstances of the case the evidence reveals that the testimony of the claimant was unworthy of credit. The court held in Boswell v. Liberty Mutual Ins. Co., 77 Ga. App. 556 ( 49 S.E.2d 117): "The State Board of Workmen's Compensation is not bound in every case to accept the literal statement of the witnesses before it merely because such statements are not contradicted by direct evidence; but it may reject the same when inconsistent with reason or in conflict with facts which in the opinion of the board have been satisfactorily established or with implications and inferences which logically and properly arise from the evidence."
In this connection we might also call attention to Paschal v. Foremost Dairies, 56 Ga. App. 397, 399 ( 192 S.E. 634), where this court said: "It is not necessary to cite authorities for the proposition that the finding of fact by the department, in the absence of fraud and if supported by any evidence, is conclusive and binding upon the courts. The question here presented is not whether an award in the claimant's favor might have been authorized, but whether such an award was demanded under the evidence. `Nor is the Department of Industrial Relations bound in every case to accept the literal statements of a witness before it merely because such statements are not contradicted by direct evidence. Implications inconsistent with the testimony may arise from the proved facts; and in still other ways the question of what is the truth may remain as an issue of fact despite uncontradicted evidence in regard thereto.'"
The superior court was amply authorized to affirm the award of the State Board of Workmen's Compensation.
Judgment affirmed. Townsend and Carlisle, JJ., concur.