Hartford Acc. & Indem. Co. v. Carroll

• Citation: 43 S.E.2d 722,75 Ga.App. 437
• Decision Date: 18 June 1947
• Docket Number: 31585.
• Court: United States Court of Appeals (Georgia)
• Parties: HARTFORD ACCIDENT & INDEMNITY CO. et al. v. CARROLL.

43 S.E.2d 722

75 Ga.App. 437

HARTFORD ACCIDENT & INDEMNITY CO. et al. v. CARROLL.

No. 31585.

Court of Appeals of Georgia, Division No. 1.

June 18, 1947

Rehearing Denied July 16, 1947.

Syllabus by the Court.

1. Where the parties agree upon compensation to be paid an injured employee, and the State Board of Workmen's Compensation approves the agreement, the board has authority within the time prescribed by law, to hear and determine an application by the employee for additional compensation on the ground of a change in condition notwithstanding an earlier award finding that an aggravation of a pre-existing osteo-arthritis by the injury had ceased, such an award merely adjudicated the claimant's condition at the time of that hearing and was not res judicata as to the condition at the later hearing.

2. There was no evidence which would authorize the single director in finding that there had been a change in the claimant's condition as a result of the original injury.

M. M. Carroll was injured at the Bell Aircraft Corporation in Marietta, Georgia, May 13, 1944, when he was struck in the back by a motor scooter and knocked down. The insurance carrier, Hartford Accident & Indemnity Company the employer, and the claimant entered into an agreement for the payment of compensation to the claimant on May 31, 1944 which agreement was approved by the State Workmen's Compensation Board. The agreement stipulated that compensation should be paid at the rate of $20 per week based on an average weekly wage of $47.32, until terminated in accordance with the provisions of the Workmen's Compensation Law of the State of Georgia. On April 24, 1945, after a hearing had at the instance of the instance of the insurance carrier, a single director made the following material findings of fact: 'From the admissions made by the employer and/or insurer and the evidence adduced at the hearing I find as a matter of fact and conclude as a matter of law that Marshall M. Carroll was an employee of Bell Aircraft Corporation, Marietta, Georgia, on or about the 13th day of May, 1944, at a regular weekly wage in excess of $40 and that on said date he met with an accident and injury that arose out of and in the course of his employment. * * * From a preponderance of the testimony I am of the opinion that the accident and injury being slight did aggravate the severe osteo-arthritis which had existed from seven to ten years provisious to the injury, and from the medical testimony it is my conscientious opinion that the aggravation, giving the claimant the benefit of the doubt, had entirely cleared up at the expiration of ten months from the date of the accident and injury on May 13, 1944, and that after the period of ten months from the date of the accident and injury the claimant's disability is due solely and entirely to the osteo-arthritis condition and other chronic conditions of disease not the result of traumatic injury and he is, therefore, not entitled to additional compensation after said period.' On appeal this finding of the single director was affirmed by the full board, the Superior Court of Cobb County, and by this court, Carroll v. Hartford Accident & Indemnity Co., 73 Ga.App. 799, 38 S.E.2d 185.

While the appeal was pending in this court, the claimant, on December 19, 1945, filed an application with the State Board of Workmen's Compensation for review on the ground of a change in condition. After a hearing was had, another single director found that there had been a change in condition. On appeal to the full board this finding was affirmed, with the original hearing director dissenting. The Superior Court of Cobb County affirmed the award, and the employer and insurer appealed to this court on the ground that the first award was conclusive on the claimant and res adjudicata that the aggravation to his osteo-arthritis caused by the accident and injury had ceased and that his disability resulted solely from his osteo-arthritis and not from the injury, and that there was not sufficient evidence to authorize the finding on the last hearing that there had been a change in condition.

The evidence adduced at the two hearings which is material to a determination of the case is as follows: On the first hearing the report of Dr. Rufus A. Askew, was admitted in evidence by agreement. Dr. Askew reported: 'He [the claimant] simply complained of pain throughout the entire back. X-ray examination of the spine was made revealing advanced osteo-arthritis which in my opinion is much more advanced than is ordinarily seen in one of his age. There was no evidence of fracture, or dislocation. The arthritis was of such a nature as to indicate that it was of several years duration. * * * It is my opinion that due to the fact that he did have this arthritis he probably did receive some slight aggravation of it at the time of his injury on May 13, 1944. However, any aggravation which might have occurred following the injury on May 13th would not have been sufficient to have caused total disability at the time of my examination, unless the injuries were very, very severe. * * * Therefore, in my opinion he has completely recovered from any aggravation of his pre-existing arthritis resulting from the injury received on May 13, 1944.'

Dr. Askew testified at the hearing: '* * * It was my opinion after examination that he had more osteo-arthritis than is usually seen in a person sixty-four years of age. My impression was that he was definitely disabled, but I thought his disability was due to the osteo-arthritis. He had a large beak-like formation on some of his vertebrae and these indicated, of course, that the osteo-arthritis was of several years duration. Therefore, it was my opinion to the company that he had had an aggravation of his osteo-arthritis at the time of his injury, but an aggravation as slight as he had should have disappeared by the time of my examination, and I felt that his disability was due to his blood pressure, his heart and chronic osteo-arthritis and his period of aggravation ceased--ceased to exist.

'Q. In other words, at the time you didn't find any disability as a result of accident that he sustained on May 13, 1944? A. No, sir. * * * He is totally disabled for heavy manual work. * * * A person who has advanced osteo-arthritis, who receives an accident would certainly have an aggravation as a result of the injury which they received. The aggravation would depend upon the extent of the osteo-arthritis and the extent of the injury. This man had advanced osteo-arthritis, but with a what is supposed to have been, and I am sure it is true--he admits it was a slight injury, therefore the aggravation would of course be more than it would have been to a person who had only a slight osteo-arthritis.

'Q. Now, I want you to tell this director, granting that this man having not worked a day since, still totally disabled that he is wearing a brace ordered by the company doctors, and using a stick, I want you to tell the director when the aggravation ceased, please, sir? A. I would think that an injury of the severity he had, the arthritis that he had, would cause a very long period of aggravation, much, much longer than it would in an ordinary person, probably six to eight months, maybe ten months. That would be the very maximum; I think that there to four months, possibly six to eight months maximum.

'Q. Now, doctor, he has never gotten well, has he? A. He would not have gotten well if he had never had an accident; he was already a sick man; no, sir, you can't expect him to get well because he was already a sick man.

'Q. Then this accident caused it to flare up, didn't it? A. Yes.

'Q. It caused it to flare up and that flare up has not ceased until this date? A. Well, I think with--I think that what aggravation he had would have ceased by this time * * * and therefore, I don't think and don't believe any one else thinks that the arthritis condition he now has is the result of the original stimulant or rather, the accident he had. Now, I will grant that the accident naturally would aggravate the condition, but I am also absolutely conscientious in saying that I think the aggravation would certainly not be more than seven to eight months. * * * I can in my own mind and conscientiously think that from the degree of the injury which he had, he should not have had an aggravation more than six to eight months.

'Q. He should not, but he has? A. I think he has. * * *

'Q. Doctor, * * * if this man had that arthritis, and he had this injury and you admit this injury did cause that arthritis to flare up, and he has still got arthritis, how are you going to say when the aggravation ceased? A. It would be purely a medical opinion.'

Dr. M. B. Copeloff testified in behalf of the claimant; on cross-examination the following answers were given by him:

'Q. Now, you're not saying that that arthritis is traumatic are you? A. No, sir.

'Q. There is a type that is not traumatic? A. There is a type that is not traumatic.

'Q. Well, is this the type? A. From the looks of the arthritis and the length of time that it has existed, I would say no, it is not due to trauma. * * *

'Q. Now did you find anything that would indicate any evidence of injury? A. No, I found no evidence of injury.

'Q. Absolutely none? A. No, sir.

'Q. So it simmers itself down to this, Dr. Copeloff, all you found is a man 64 years old with a systemic arthrities. A. Yes, sir.

'Q. That in your opinion had been existing from seven to ten years? A. That is right.'

On redirect examination Dr. Copeloff testified: 'Q. What do you find was motivating it? A. The only thing I have is the history he gave me, a history of having had an injury, and naturally I would say this injury is what aggravated this...