Borden Company v. Fuerlinger
Borden Company v. Fuerlinger
Opinion of the Court
The employer and insurance carrier insist here, as they did in the superior court, that there was not sufficient competent evidence in the record to support the award in the claimant’s favor, for the reason, as they contend, that the evidence conclusively showed that the claimant had, at the time of the hearing and when the award was entered, completely recovered from eczema contracted while in the employer’s service, and was not to any extent disabled as a result of that attack of the disease. In this connection they maintain that the evidence submitted upon the hearing demanded a finding that any disease
The appellants complain that the compensation board acted “without and in excess of its authority” in making the finding of fact that the claimant’s condition had reached maximum improvement.
We shall consider the exceptions presented to us in the light of the law embodied in Code (Ann.) § 114-823 (5), which reads in part: “Said report of the Medical Board upon original examination or upon appeal, as hereinbefore provided, shall become a part of the record in the case and shall be accepted by the State Board of Workmen’s Compensation as conclusive upon the medical questions therein decided, and the award thereafter made by the State Board of Workmen’s Compensation shall conform to the findings and conclusions in said report in so far as restricted to medical questions.”
There having been no appeal from the finding of the medical board its decision became final as to the medical questions submitted to it.
The finding of that board that the claimant was twenty-five percent disabled was conclusive as to the extent of her disability. The finding that the condition of her hands was due to exposure to Lobax (Chlorine) precluded further investigation as to whether her disability arose out of and in the course of her employment. This is true because there was ample evidence in the record, and it was admitted by the parties to the record, that the claimant’s original disability was caused by using Lobax (Chlorine) while working for the employer at its dairy, and there was no evidence that she came in contact with the Lobax at any time subsequent to the termination of her employment at the dairy.
The medical board did not determine the probable duration of the claimant’s disability, that is, whether it was temporary or permanent. The question was, therefore, left open for decision
The issue as to whether the claimant refused medical treatment is made under the provision of Code § 114-503: “No compensation shall be payable for the death or disability of an employee if his death is caused by, or in so far as his disability may be aggravated, caused or continued by, an unreasonable refusal or neglect to submit to or follow any reasonable surgical treatment by a competent surgeon.”
The law is sound, but there is ample evidence in the record that the claimant conformed to the orders of the doctors furnished by the employer. Dr. Smith testified that the claimant had been a cooperative and obedient patient. He did explain that if the claimant’s hands were not exposed to soaps or detergents of any kind they would probably become entirely clear of the eczema, but that it was probably necessary for her to come in contact with soap and water in doing house work, and it might be said she did not follow his instructions. He said he did advise the claimant to avoid detergents, soaps and other alkalis. While the evidence on the subject is so voluminous that it would be impractical to recount it all in this opinion, the claimant unequivocally and positively testified that she had complied with all the direc
The final question for decision is whether the award of the compensation board should be set aside because there was no evidence to support its finding that the claimant’s condition had reached maximum improvement, or for the reason that the compensation board in making such finding acted without and in excess of its authority.
In some instances classification of the claimant’s disability as. temporary or permanent may be predicated upon evidence that improvement in the condition from which it results has progressed at the time of the hearing before the compensation board as far as it probably will, or the condition has, as frequently phrased, reached its maximum. This means, of course, “improve” as relates to the claimant’s ability to. work, not improvement in his health which does not affect his capacity to labor. In other cases where no definite conclusion is reached as to whether the condition of the claimant has reached maximum improvement there may still be sufficient evidence to authorize the finding of the board or one of its directors that the injury is not of a permanent nature.
The term “maximum improvement” is a mere phrase sometimes employed in expressing an opinion as to whether, according to the proof adduced, the claimant’s disability is temporary or permanent.
As a separate, independent finding of fact, disassociated with the primary question as to the extent and probable duration of disability, a finding that maximum improvement has been reached has no place in workmen’s compensation law. Where it is found
What is written in reference to the employer’s or insurance carrier’s right to have an award which adjudicates the claimant’s disability reviewed on application to determine if there has been a change in his condition, is not applicable to the time in which the claimant may apply for a hearing to determine a change in his condition.
Code (Ann.) § 114-709; Globe Indemnity Co. v. Lankford, 35 Ga. App. 599 (134 S. E. 357); Miller v. Independent Life & Accident Ins. Co., 86 Ga. App. 538 (71 S. E. 2d 705).
Had the board been authoz’ized by law to adjudicate as an independent issue that the forward progress of the claimant’s condition of disability had reached its peak of improvement, the evidence submitted in this case would have warranted the finding of fact that it had reached that stage.
Judgment affirmed.
Concurring Opinion
concurring specially. I concur in the judgment and in znost of what is stated in the opinion. I concur in what is said with reference to a finding on maximum iznproveznent in so far as it is consistent with my special concurrence in Travelers Insurance Co. v. Haney, 92 Ga. App. 319 (88 S. E. 2d 492). I do not concur in the ruling on the question of what is or is not a prerequisite of an award of a lump-sum settlement because there is no such question in this case, and any attempt to rule on that matter is obiter.
Reference
- Full Case Name
- The BORDEN COMPANY Et Al. v. FUERLINGER
- Cited By
- 10 cases
- Status
- Published