American Mutual Liability Insurance v. Gunter
American Mutual Liability Insurance v. Gunter
Opinion of the Court
We have not set forth in detail the findings of fact by the director. A good many of them we deem unnecessary to a determination of the issue before us. The material question is whether there is any evidence to sustain the award of the director, and if so, this court must reverse the judgment of the superior court. On the other hand, if the evidence demands a finding in favor of the claimant, then it is the duty of this court to affirm the judgment of the superior court. In the outset we might state that the finding of the director, to the effect that the evidence does not sustain a finding that the injury resulted in a hernia on the right side and that the pre-existing hernia on the left side did not entitle the claimant to compensation under the Code, § 114-412, is correct. This section deals exclusively with the principle of law regarding compensation for hernia or for death therefrom. Therefore it necessarily follows that, unless the evidence shows that the claimant is entitled to compensation for total or partial disability under some other principle of law under the Workmen’s Compensation Act, the claimant is not entitled to prevail in this case. Able counsel for the employer and carrier cite a number of decisions to sustain their contention that this court—in the discharge of its duty to construe the award most favorably to the employer and insurance carrier so as to sustain it, and by applying the principle that, if there is any competent evidence to sustain the award, it must be upheld—should uphold it. Let us examine these decisions. In Sullivan v. Social Circle Cotton Mills, 41 Ga. App. 714 (154 S. E. 467), a hernia case, this court said: “Accordingly, since the evidence in the instant case authorized the finding of the Industrial Commission that the only disability suffered by the claimant by reason of an accident arising out of and in the course of his employment consisted in pain and suffering from a hernia which existed prior to the accident, the award of the commission denying compensation was authorized and can not be set aside. Especially would such a rule
“Q. Dr. Randolph, you don’t know whether this boy suffered more intensely from this injury after he had the blow or not, do you ? From the blow he had whether it affected him and hurt him internally there or not, do you ? A. The. second time I saw him he was not complaining any more—as much as he was the first time. No, sir.' Q. But you don’t know how much he was suffering with it, do you? A. No, sir. Q. And you don’t know whether he is still suffering with it or,not, do you? A. No, sir. Q. And you don’t know whether it really affected his ability up to now, do you ? A. I couldn’t testify as to that.”
In connection with this testimony of Dr. Randolph, we might call attention to a conclusion of the director in his findings of fact:
“It will be further noted that Dr. Randolph testified that from the condition of the injury he found March 30, 1944, claimant should have fully recovered from the effects thereof within a period of two weeks.” This is an erroneous conclusion of the director, which the testimony of Dr. Randolph does not sustain. On this point we quote the testimony of the doctor:
Another case called to our attention is Keel v. American Employers Insurance Co., 44 Ga. App. 773 (162 S. E. 847), to the effect that the finding of the director should be sustained because there was competent evidence to support the award, on the ground that the claimant had refused employment as contemplated by the Code, § 114-407. This section provides that, if an injured employee refuses employment procured for him, suitable to his capacity, he shall not be entitled to any compensation at any time during the continuance of such refusal unless in the opinion of the department such refusal was justified. There is no competent evidence to the effect that the work offered was suitable to the capacity of the claimant to perform it. On the contrary, the uncontradicted competent evidence demanded a finding that the work offered was not suitable to the capacity of the claimant to perform it. This is borne out by the testimony of the claimant, of Dr.' Pharr, and of the foreman of the employer, Delay. We will not discuss this evidence in detail, but merely refer to the evidence of these.
The next case called to our attention is Bradberry v. Lumbermen’s Mutual Casualty Co., 60 Ga. App. 576 (4 S. E. 2d, 486). That case rested on the proposition that the evidence was based only on opinion testimony on both sides, that it was conflicting, and that it was for the board to decide which view it would accept. In the instant case, there is no contradictory evidence that the claimant was not partially incapacitated for work. Counsel for the employer and carrier contend that the present facts fall squarely within the rulings of the Supreme Court in Liberty Mutual Ins. Co. v. Blachshear, 197 Ga. 334, 336 (28 S. E. 2d, 860). That case dealt with compensation for hernia under the Code, § 114-412, and as we have heretofore stated, the claimant in the instant case is not entitled to compensation under the provisions of that section. In that case, however, the Supreme Court, citing Cooper v. Lumbermen’s Mutual Casualty Co., 179 Ga. 256, 261 (175 S. E. 577), held as follows: “In order to render any finding of fact demanded as a matter of law, not only must there be no controversy in the evidence material to the issue involved, but the implications and inferences which logically and properly arise from the evidence must necessarily lead to only one conclusion.” It is our opinion that, applying this rule to the facts of the instant case, there was no controversy in the evidence material to the issue involved—that is, that the claimant was partially disabled—and there are no implications or inferences that can be drawn from the evidence which lead to any contrary conclusion. We are not unmindful that the board in arriving at the truth may apply all the rules of law with reference to the credibility of the witnesses testifying, their intelligence, their means and op-' portunity of knowing facts to which they testify, the nature of the facts to which they testify, and the probability or improbability of
As we have heretofore stated, the claimant in the instant ease was not entitled to recover under the Code, § 114-412, for
Therefore, from what we have said, it follows that the judge of the superior court did not err in reversing the award of the single director, and the judgment is affirmed.
Judgment affirmed.
Dissenting Opinion
dissenting. Upon an appeal to the superior court from any final award or other final decision of the Industrial Board, the findings of fact made by the board within its powers are, in the absence of fraud, conclusive if they are supported by any competent evidence. Code, § 114-110; Maryland Casualty Co. v. England, 160 Ga. 810, 812 (129 S. E. 15); Ga. Power &c. Co. v. Patterson, 46 Ga. App. 1, 8 (166 S. E. 255), and citations. Furthermore, it is well settled that in a compensation case, the hearing director has the opportunity and the right to consider the witnesses’ manner of testifying, their intelligence, their means and opportunity for knowing the facts to which they testified, the nature of such
Moreover, when the award is against the claimant, the judge of the superior court, as well as this court, in reviewing the award must accept the evidence most favorable to the defendant. Glens Falls Indemnity Co. v. Sockwell, 58 Ga. App. 111, 114 (supra); Merry Bros. Brick Co. v. Holmes, 57 Ga. App. 281 (supra). Furthermore, “Under the provisions of the Workmen’s Compensation Act, the judge of the superior court, upon appeal, has not that discretion to set aside an order or decree of the Industrial Commission which he exercises in passing upon motions for new trial and petitions for certiorari in eases where the evidence would authorize a finding or judgment for either party.” United States &c. Co. v. Hall, 34 Ga. App. 307 (4) (129 S. E. 305), and citations. In the case just cited, where the judge of the superior court set aside the award and ordered a new trial (just as the judge did in the'instant case), this court, in reversing that judgment, said: “The findings of fact made by the commission, if supported by any evidence, will in the absence of fraud be conclusive.”
In my opinion the findings of fact made by the hearing director were authorized by some evidence; and, there being no question of fraud in the case, the judge of the superior court erred in setting aside the award and ordering a new trial.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.