Maryland Casualty Co. v. Johnson
Maryland Casualty Co. v. Johnson
Dissenting Opinion
dissenting. I dissent from Division 1 of the opinion which controls the case. The notice of award recites that certain witnesses testified as to certain facts, then follows what is termed "Findings of Facts”: "From all the evidence in the record the majority of the full board finds as a matter of fact that claimant did in fact suffer multiple injuries on March 25, 1969, from an accident which arose out of and in the course of his employment. The majority of the full board further finds that claimant has been totally disabled since the date of the accident and that he is entitled to compensation in the amount of $50 per week since that date.” This court has consistently held that a mere recitation of testimony is not findings of fact and that the findings of fact here shown are not sufficient. See Southeastern Express Co. v. Edmondson, 30 Ga. App. 697 (1) (119 SE 39); American Mut. Liab. Ins. Co. v. Hardy, 36 Ga. App. 487, 490 (137 SE 113); Metropolitan Cas. Ins. Co. of New York v. Dallas, 39 Ga. App. 38 (146 SE 37); Bituminous Cas. Corp. v. Chambers, 84 Ga. App. 295 (66 SE2d 196); Atlanta Transit System v. Harcourt, 94 Ga. App. 503 (95 SE2d 41); Fireman’s Fund Indem. Co. v. Peeples, 97 Ga. App. 896 (104 SE2d 664); Hodges v. Fidelity & Cas. Co., 105 Ga. App. 273, 274 (124 SE2d 435); Noles v. Aragon Mills, 110 Ga. App. 374, 375 (138 SE2d 598); Dudley v. Sears, Roebuck & Co., 111 Ga. App. 214 (141 SE2d 179).
The case of Southeastern Express Co. v. Edmondson, 30 Ga. App. 697 (1), in no way supports the statement in the majority opinion that "The award, which contains only a selection from all the testimony, can be construed to be a statement of findings consistent with that testimony, thereby making the award valid.” On the contrary, in that case (p. 701), the notice of award contained a recitation of facts then a statement of questions and answers incorporated in that part: "In order to clear the record as far as rules are concerned. . . .” and immediately after quoting
Opinion of the Court
The employer and insurer appeal from the judgment of the superior court affirming an award of the State Board of Workmen’s Compensation.
Following the injury, an agreement was made and approved by the board compensating claimant for a broken arm. Over a year later, the claimant requested a hearing to determine disability. After a hearing, the deputy director entered an award assessing 10% disability to the right arm. Claimant appealed to the full board which set aside the award of the deputy director and found that claimant was totally disabled.
1. Appellants contend that the award of the full board, which is written as a recital of testimony, contains no findings of fact as required by Code § 114-707. The award, which contains only a selection from all the testimony, can be construed to be a statement of findings consistent with that testimony, thereby making the award valid. See Southeastern Express Co. v. Edmondson, 30 Ga. App. 697 (119 SE 39).
2. Appellants also contend that the board acted without authority in entering this award modifying a duly approved agreement as the hearing was not for review upon a change of condition. While Code Ann. § 114-709 authorizes review of an approved agreement only for change of condition, this court has held that the board may, on its own motion, enter an award stating that a change of condition has occurred, regardless of the stated purpose of the hearing. Fulton Cotton Mills v. Lashley, 123 Ga. App. 528 (182 SE2d 180).
Judgment affirmed.
Reference
- Full Case Name
- MARYLAND CASUALTY COMPANY Et Al. v. JOHNSON
- Cited By
- 5 cases
- Status
- Published