Opinion
33402.
DECIDED MARCH 15, 1951. REHEARING DENIED MARCH 29, 1951.
Appeal; from DeKalb Superior Court — Judge Guess. October 30, 1950.
Neely, Marshall Greene, for plaintiff in error.
T. Elton Drake, Harry E. Monroe, John M. Williams, contra.
There are three essential elements under the law embraced within the Workmen's Compensation Act which must be proven by the claimant by some competent evidence before he is entitled to compensation thereunder: (1) employment; (2) an accident arising out of and in the course of employment; (3) disability as a result of the accident.
The evidence in this case is sufficient to establish these three elements, and to entitle the claimant to compensation even though there are some conflicts in the evidence and perhaps some incompetent testimony injected into the case during its progress.
DECIDED MARCH 15, 1951. REHEARING DENIED MARCH 29, 1951.
This is a compensation case. After the hearing before D.C. Chalker, deputy director, he made the following findings of facts: "The evidence is indefinite as to the date of the accident, but I find as a matter of fact that A. W. Pruitt, claimant, was employed by General Motors Corporation, Doraville, Georgia, and that sometime about May, 1949, he was a millwright worker, which work included construction of steel and welding, setting up and moving machinery and lining it up. That his average weekly wage was $90, and around about said date he lifted bearings weighing from 75 to 100 pounds, and bearing caps weighing from 250 to 300 pounds, all day, and on Monday morning he could hardly bend his back. He further testified that he went to the plant and told the company doctor, Dr. Kelley, that he had strained his back. Dr. Kelley taped his back and told him he had strained a muscle and he would be all right in a few days. After three or four days he removed the tape and his back was still weak and it hurt to bend his back. Then on or about June 10, 1949, while building ovens, on the outside where cars were heated to paint and dry, the structure being about seven feet high with a six foot ladder under it, and two fellow workers named Joe and John were working beneath the structure and a bolt had been removed from the section on top of the structure and when he was asked to hand another employee some insulating tape, he stepped on the section which was unbolted, causing it to fly up like a trap door and causing him to fall through it. He hit the stepladder just below his belt line and with his shoulder, which knocked his breath out. Both injuries grew out of and in the course of his employment.
"Dr. Kelley examined him for the second injury and said that he did not have any broken bones and could go back to work. However, he did not x-ray him at the time. Two or three days later his lower back and side were hurting so badly that he told his general foreman, George Marzoney, that he could hardly bend over. Mr. Marzoney sent him back to Dr. Kelley, who examined his upper back and ribs, and again said that he did not have any broken bones and that he would be all right. He worked on but lost some time and his last work was on July 30, 1949. He entered Oliver General Hospital August 4, 1949, where he remained for about a week; then went to Lawson General, but was unable to get entrance and went back to Oliver General. He was operated on by Dr. Dahne and remained in the hospital until November 4, 1949, and stated that he had not been able to work since that time. He testified that he did not lose any time from work as a result of his first injury and that he has not been paid any compensation.
"The evidence of his injury was corroborated by fellow employees. The deposition of Dr. Calvin Sandison was taken on March 31, 1950 in which he testified in substance that he saw claimant only one time on January 9, 1950 and he gave a history of having had a back injury in May of 1949 and June of 1949 when he sustained a fall and was complaining of pain in the back and numbness and pain down the left leg. Physical examination showed that there was in the small of the back, a vertical incision about 4" long in the midline from the sacrum to the third lumbar vertebra, and it was his opinion that claimant had a 50% permanent disability from manual labor and he recommended the removal of the disc and a fusion of the joints.
"From all the testimony in the case I find as a matter of fact that the second injury referred to above resulted in disability to claimant and that from July 30, 1949, he suffered a disability as a result of the injury, disabling him from the labor which he was accustomed to follow [in the amount] of 50%, and conclude as a matter of law that he is entitled to compensation as a result of the second injury for 50% permanent partial disability to his back, and that he is entitled to compensation of $12 per week not to exceed 300 weeks, and that he is further entitled to all necessary and reasonable medical, surgical, and hospital charges, not to exceed the maximum provided under the act."
Based on such findings of fact the deputy director made the following award: "Wherefore, based on the above findings of fact, General Motors Corporation, employer, is directed to pay A. W. Pruitt, claimant, compensation of $12 per week, commencing the 6th day of August, 1949, and continuing not to exceed 300 weeks.
"General Motors Corporation, employer, is further directed to pay any and all necessary and reasonable medical, surgical and hospital bills in connection with this injury. They are further directed to pay all accrued compensation immediately." Before the expiration of the time for appeal to the full board, the hearing director, Chalker, amended his award as follows: "It having been brought to the attention of the undersigned deputy director by counsel for claimant before the time for appeal having expired, and on his own motion amends the conclusions of law in the findings of fact by striking `compensation of $12 per week' and inserting in lieu thereof, `compensation of $15 per week' as provided in § 114-405 as amended, and amending the award in said case by striking, `compensation of $12 per week' and inserting in lieu thereof, `compensation of $15 per week' so that the award will read as follows: Award, wherefore based on the above findings of fact, General Motors Corporation, employer, is directed to pay A. W. Pruitt, claimant, compensation of $15 per week, commencing the 6th day of August, 1949, and continuing not to exceed 300 weeks. General Motors Corporation, employer, is further directed to pay any and all necessary and reasonable medical, surgical and hospital bills in connection with this injury. They are further directed to pay all accrued with this injury. They are further directed to pay all accrued compensation immediately. . . This 21st day of April 1950. . . D.C. Chalker, deputy director."
The claimant, being dissatisfied with the award of the deputy director, duly filed his application for review to the full board on the grounds: (1) that the action of the deputy director was without and in excess of his powers; (2) that the facts found by the hearing director did not support the order or the decree; (3) that there was not sufficient competent evidence in the record to warrant the director in making the award; (4) that the award is contrary to law. After due notice the full board amended the award of the hearing director and its statement concerning this hearing is as follows: "The above stated case came on for hearing before the full board on May 22, 1950, upon application of the claimant objecting to the award of deputy director, D.C. Chalker, dated April 20, 1950.
"After a careful review of the evidence and the entire record in this case, the board is of the opinion that the award of the deputy director should be amended in that it appears from the record and the board finds that the claimant was temporarily totally disabled for a period beginning August 6, 1949 and continuing to January 9, 1950, and the claimant should draw compensation for temporary total disability for that period, and for 50% partial incapacity thereafter.
"Award: Wherefore, the award of deputy director, D.C. Chalker, dated April 20, 1950, as amended by his award of April 21, 1950, is hereby set aside and the following award of the full board is substituted in lieu thereof.
"General Motors Corporation, employer, self-insurer, is hereby authorized and directed to pay A. W. Pruitt, claimant, compensation at the rate of $24 per week beginning August 6, 1949, and continuing to January 9, 1950, or a period of 22 weeks in the total amount of $528 for temporary total disability.
"The employer, self-insurer, is further directed to pay compensation beginning January 9, 1950 at the rate of $15 per week and continuing for a period not to exceed 300 weeks from May 18, 1949, for 50% incapacity. The employer, self-insurer, is further directed to pay all reasonable medical, surgical and hospital bills incurred as the result of this injury, the total not to exceed the statutory limit. All accrued compensation shall be paid immediately. . . This 30th day of May, 1950." (All the members concur in this finding of facts and award).
The employer appealed the award of the full board to the Superior Court of DeKalb County on the grounds: (1) that there is no competent evidence to support the award; (2) that the facts found in the award do not support the award; (3) that the board acted in excess of its powers; (4) that the award is contrary to law; (a) on the ground that the undisputed evidence in the case shows that the claimant's disability did not result from an accident which arose out of and in the course of his employment; (b) because the evidence shows and demands the findings that the claimant's disability resulted from an occurrence which took place at his home with the result that his injury did not occur during the course of his employment; (c) because the evidence demanded the finding that the claimant's disability was due to disease and not the injury.
Upon hearing, the judge of the superior court affirmed the award of the full board. On this judgment of the superior court the employer assigns error here.
It is contended here by distinguished counsel for the employer that the burden of proof was on the claimant to establish that he had sustained an accident at a definite time on a specific date and that his injuries were the result of such accident. In support of this contention our attention is called to Harper v. National Traffic Guard Co., 73 Ga. App. 385 ( 36 S.E.2d 842), and Code §§ 114-303, 114-304, and 114-305. In this connection it is contended that since the claimant did not remember the exact date when he was injured and from other evidence in the case, that the hearing director in the first instance found himself in such a serious state of doubt that he tried to compromise the matter; that in the award of the hearing director he found that the evidence was indefinite as to the date of the alleged accident and concluded that the claimant was hurt in May and in June, and that he ought to be paid something. While it is true that the claimant testified that he did not remember the exact date, upon examining the whole record, we think that the employer supplied the exact dates of the two injuries which the claimant received by introducing the records which included the dates when the claimant was injured and sent to the office of the doctor of the employer for treatment. The first injury which the claimant received while in the course of his employment and arising out of his employment was during the month of May, 1949. He was treated for this injury by Dr. Kelley, the employer's doctor, who strapped his back. For this injury he was seen by Dr. Kelley several times, and after the employer's doctor removed the bandages, the record reveals that the claimant, although his back was weak, continued with his work. The claimant testified that he received a second injury and that he believed the date was June 10, but he was unable to testify as to the exact date. The employer's record showed the date of this second injury to be May 18, 1949. On this date the claimant sustained a fall while building an oven, at the time he was working atop an oven about seven feet from the floor. He stepped on a metal section which was unbolted, causing it to fly up like a trap door. The claimant fell through the opening thus caused, striking his shoulder and side just below the belt line, on a stepladder. The fall caused claimant to lose consciousness after striking the stepladder in the fall. Companion employees working with the claimant at the time he fell, sustained the evidence of the claimant as to the fall, the manner in which it occurred, and the result of a short period of unconsciousness therefrom. For the injury received by the fall the claimant was again treated by Dr. Kelley. A few days later his lower back and side hurt him so much, he testified, that he told his general foreman that he could hardly bend his back. His foreman sent him back to Dr. Kelley, who x-rayed his upper back and ribs, and Dr. Kelley again said that the claimant did not have any broken bones and that he would be all right. The evidence reveals that the claimant continued to work for the employer from that time until July 30, 1949, on which day he told his foreman that he could not make it, and that he was going home. During the time from his last injury until July 30, the claimant was absent on several occasions.
The employer's evidence reveals that the claimant gave various reasons for being absent during that period of time, including colds, absence of his wife who was in Florida, and that the claimant was addicted to the excessive use of alcohol; that the employer assisted him by inducing the claimant to take the Alcoholics Anonymous treatment. The claimant was never discharged, however. The reasons the employer gave for retaining the claimant after knowing of such addiction was that the claimant was an expert welder and an authority on that subject and that the employer wanted to try to help the claimant and that they thus retained him.
The State Board of Workmen's Compensation was authorized from the evidence to find that after July 30, 1949, the claimant testified he told his foreman he could not "make it." He again reported to Dr. Kelley, the employer's doctor, for treatment. Dr. Kelley refused any further treatment. The claimant reported to his family physician, Dr. Burns of Gainesville, Georgia. After an examination Dr. Burns recommended hospitalization for the claimant, and the claimant was sent to Oliver General Hospital in Augusta. The evidence further revealed that the next morning after July 30, he was arising from bed, and as he was doing so the claimant felt a sharp pain in the lower part of his back. There was medical authority to the effect that a certain movement such as getting out of bed suddenly could cause a displaced disc and the board was authorized to find that the injury received from the fall which the claimant suffered could cause it. The claimant remained in Oliver General Hospital in Augusta, Georgia, from August 1, 1949, to August 21, 1949. At that time he asked permission to try to see if he could enter Lawson General Hospital, which was nearer his home. Due to the crowded conditions at Lawson General Hospital the claimant could not enter. He returned to Oliver General Hospital on September 8, and remained there until November 4, 1949. During the latter period of hospitalization, the claimant underwent an operation for an injury on his lower vertebra. After the claimant returned to his home in Gainesville, Georgia he was examined by Dr. Sandison on January 8, 1950, and his permanent disability was rated at that time at 50%. The claimant testified as to an operation on his back but he did not know just what kind of an operation it was. Dr. Sandison testified as to an incision or scar on the claimant's back which indicated an operation, and by x-ray it was revealed that there was an injury to the claimant's vertebra and that there was no fusion. Over objection of the employer's counsel, Dr. Sandison was permitted to testify, in giving the history of the case which he received from the claimant, that the injury for which he was given the operation was a displaced disc. It is contended by counsel for the employer that there is no competent evidence to sustain the claimant's contentions or the findings made by the board. It is contended by the employer that the testimony that since the claimant was injured in May of 1949 and worked regularly, making a great deal of overtime between May and July, 1949, and that on the morning of July 31, the claimant, after he quit work, when he started to get out of bed, felt a catch in his back, was insufficient to sustain the findings of Dr. Sandison made in January, 1950. It is contended that Dr. Sandison's testimony is not legal and is nothing more than theory or speculation, or a guess based upon assumed facts not supported by testimony. It is further contended that the findings of the board are based upon speculation, theory and conjecture and it is contended further by the employer that if the conversation between the claimant and Dr. Sandison is stricken out of the record there is no evidence in the record to support the award.
We have read very carefully all the evidence in the case by each witness. We have reached the conclusion that there is sufficient competent evidence to sustain the award of the full board of the State Board of Workmen's Compensation.
It is contended by counsel for the claimant that the matters of colds, intoxication and the wages which the claimant received subsequently to the accident but prior to the beginning of the disability have no bearing on the case before the court; that the dates of the injuries were supplied by the evidence of the employer. It is further contended, and we think correctly, that the employment of the claimant by the employer is undisputed; that the fall from the oven and the injuries resulting therefrom were established beyond peradventure; that employees of the employer, Mr. Stroud and Mr. Dutton were eye-witnesses to the fall from the oven and another employee of the employer, Mr. Lee, testified on behalf of the employee, and stated that the claimant reported an accident and injury to him on May 18, 1949; that Dr. Kelley, in testifying for the employer, testified that he had treated the claimant on April 21 for injury to the claimant's back; that he saw the claimant on several occasions after that time; that he also treated the claimant for a second injury on May 18, 1949 (that is the date claimant fell from the oven), and subsequently. As to disability, the claimant testified that he worked as long as he could after the injuries which he received at the plant of the employer and that on July 30 he was unable to continue his work and so informed his foreman. A Mr. Stroud, a companion employee, testified that after the claimant's fall from the top of the oven he heard the claimant complain several times about hurting his side.
From the other evidence in the record, and including the above evidence, we have concluded that the award is supported by some competent evidence, and established the three essential elements to entitle the claimant to compensation as prescribed by the principles of law under the Workmen's Compensation Act. Those three elements are (1) employment; (2) accident arising out of and within the course of his employment; (3) disability as a result of the accident. The record reveals that the weekly wage of the claimant was $90 per week.
The judge of the Superior Court of DeKalb County did not err, under this record, in sustaining the award.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.