Opinion
35977.
DECIDED FEBRUARY 23, 1956.
Workmen's compensation. Before Judge Manning. Cobb Superior Court. September 19, 1955.
William P. Kennedy, Charlie Franco, for plaintiff in error.
Frank M. Swift, Jr., Woodruff, Swift Stephens, contra.
The judge of the superior court did not err in affirming the award of the State Board of Workmen's Compensation.
DECIDED FEBRUARY 23, 1956.
Mrs. Dorothy M. O. Roberts filed a claim for workmen's compensation against the Lockheed Aircraft Corporation for an injury alleged to have arisen out of and in the course of her employment. Employers Mutual Liability Insurance Company is the insurer. On the hearing the defendants stipulated that the claimant was injured on July 29, 1954, when she fell and struck her sacrum against a piece of metal in the wing of an airplane, and that she was paid compensation for this injury from November 2, 1954, through December 6, 1954.
The contention of the defendants was that the present disability of the claimant did not result from the accidental injury occasioned on July 29, 1954, whereas the claimant contended that her present disability did result from this injury.
On the hearing the claimant testified in substance that she continued work after the injury until October 25, and was operated on the following day by Dr. E. D. Reisman. Dr. Reisman, in this operation, removed her coccyx. Two days later her left leg began to swell and the trouble was diagnosed as phlebitis. She further testified that she had been unable to work since the operation and that she had never had phlebitis prior to the operation.
Dr. E. D. Reisman was the only other witness for the claimant and his testimony was taken by deposition. On direct examination he was asked the following question. "If she (the claimant) did have an accident and injured her leg at the time she alleges, could that have possibly brought on this condition?" His reply was, "Yes it could." The remainder of his testimony merely affirmed the claimant's testimony as to the date, and type of operation performed on the claimant, as well as the diagnosis of thrombo-phlebitis. He also dealt with the causes of thrombo-phlebitis.
Dr. Alfred A. Weinstein, a witness for the defendants testified in substance that he had examined the claimant and diagnosed the cause of the swelling in her left leg as thrombo-phlebitis. In addition to the above this witness's testimony was very positive that the thrombo-phlebitis was not the result of the injury to the claimant's coccyx on July 29, 1954.
In his findings of fact the single director who heard the case found that the claimant had not carried the burden of proof and his award was adverse to her, as was the award of the full board on appeal. The Superior Court of Cobb County affirmed the award of the full board, and it is to this judgment that the claimant excepts.
1. The contention of the employer and insurer is that the claimant's present disability was not caused by the injury of July 29, 1954, to her coccyx for which compensation was paid through December 6, 1954. The fact that compensation was paid on the original injury does not preclude the employer and insurer from contending that the present disability did not stem from the original injury. Pepperell Manufacturing Co. v. Mathis, 92 Ga. App. 85 ( 88 S.E.2d 201).
2. "The burden is on the claimant to prove that the injuries for which compensation is sought arose out of and in the course of the employment, before compensation can be legally awarded to the claimant." Hughes v. Hartford Accident c. Co., 76 Ga. App. 785 (1) (a) ( 47 S.E.2d 143). See also Fulton Bag Cotton Mills v. Haynie, 43 Ga. App. 579 ( 159 S.E. 781); Travelers Insurance Co. v. Faulkner, 63 Ga. App. 438 ( 11 S.E.2d 367); and Ralph v. Great American Indemnity Co., 70 Ga. App. 115 ( 27 S.E.2d 756).
There was no evidence adduced that the injury to the claimant's sacrum which required her coccyx to be removed had any connection whatever with her present disability (thrombo-phlebitis). Her personal physician testified in substance that if she had received an injury to her leg at the time she received the injury to her back that it could have caused the thrombo-phlebitis. He did not testify that there was any connection between the injury, or the operation which resulted therefrom, and the thrombo-phlebitis. Nor was there any evidence that the claimant injured her leg at the time she fell and struck her sacrum. Accordingly, the judge of the superior court did not err in affirming the award of the State Board of Workmen's Compensation denying compensation to the claimant.
Judgment affirmed. Quillian, J., concurs, and Felton, C. J., concurs in the judgment.