Travelers Insurance Co. v. Boyer
Travelers Insurance Co. v. Boyer
Dissenting Opinion
dissenting. The findings of the deputy director disclose that an agreement was entered into between the parties and approved by the board on August 27, 1957, which provided for compensation on the basis of total disability arising out of and in the course of employment. Such an approved agreement is conclusive both as to the compensability of the injury and the extent of disability of the employee as of the date of such award. Travelers Ins. Co. v. Hammond, 90 Ga. App. 595(2) (83 S. E. 2d 576) and cit; Hartford Accident &c. Co. v. Camp, 69 Ga. App. 758 (26 S. E. 2d 679); Home Accident Ins. Co. v. McNair, 173 Ga. 566 (1b) (161 S. E. 131); Manus v. Liberty Mut. Ins. Co., 100 Ga. App. 289 (1) (111 S. E. 2d 103). Accordingly, in our opinion, the testimony of Dr. Roy H. Ledbetter, Jr., as to the claimant’s condition on August 5, 1957, and prior thereto and his further opinion that the assumed clinical picture of December 17, 1957, could not be present as a result of claimant’s injury is totally irrelevant and should not be considered.
We believe that the testimony of Dr. Funk is sufficient to create an issue for determination by the board as to whether or not the claimant was totally incapacitated for work. The fact that a physician who had not seen a patient previously so that he could not give an opinion as to change in condition does not mean that he cannot testify to facts or opinions concerning the employee’s condition which would tend to or show a change in condition, or show that there had been no change in condition.
Opinion of the Court
1. In order for the deputy director’s award to have been authorized in this case, there must have been some competent evidence in the record of a change in the claimant’s physical condition between the timé when the approved agreement was entered into between the parties, whereby the claimant was paid the maximum amount based on a total incapacity to work, and the time of the hearing before the deputy director. This record discloses that the claimant, at the time of his injury, was a boy sixteen years of age employed and working as a manual laborer. The claimant and his father testified that he had been totally unable to work since sustaining his injury of June 17, 1957. Dr. Martin T. Myers and Dr. Frederick R. Lovell, witnesses for the claimant, each testified that he was permanently injured and unable to return to work. Dr. James Funk, one of the employer’s medical experts, testified that he could not arrive at a completely adequate opinion from a single examination, but that he did find that the claimant had a limited motion
2. At the time of the claimant’s injury all parties agreed that the claimant had suffered an injury that rendered him totally incapacitated to work, and was entitled to be paid under Code Ann. § 114-404, maximum disability payments as long as he continued so incapacitated, or until a change in his condition be shown by competent evidence on a hearing called for that purpose. There is no competent evidence in the case sub judice showing any change in the claimant’s condition. In the case of Fletcher v. Aetna Cas. &c. Co., 95 Ga. App. 23 (96 S. E. 2d 650), the decision in the case of Phinese v. Ocean Accident &c. Corp., 81 Ga. App. 394 (58 S. E. 2d 921), was reaffirmed, as it has been in many other cases, and it was again announced that in
Neither is there any competent evidence in this record that the claimant was capable, able or qualified to do any work other than physical manual labor, and the claimant is entitled to be paid under the provisions of Code Ann. § 114-404, supra; “not only so long as the injured employee is unable to do any work of any character, but also while he remains unable, as a result of his injury, either to resume his former occupation or to procure remunerative employment at a different occupation suitable to his impaired capacity.” U. S. Fidelity &c. Co. v. Brazier, 96 Ga. App. 743, 745 (101 S. E. 2d 625), and citations.
Accordingly, the judge of the superior court did not err in reversing the State Board of Workmen’s Compensation, and the judgment of that court is hereby' affirmed.
Judgment affirmed.
070rehearing
On Motion for Rehearing.
The insurer and employer contend in this motion for rehearing that this court has overlooked and failed to apply the law as found in the decision of Wilson v. Swift & Co., 68 Ga. App. 701 (23 S. E. 2d 261) which they contend would require a different decision.
The case of Phinese v. Ocean Accident &c. Corp., 81 Ga. App.
Rehearing denied.
Reference
- Full Case Name
- TRAVELERS INSURANCE COMPANY Et Al. v. BOYER
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- 11 cases
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- Published