Hartford Acc. & Indem. Co. v. Camp

• Decision Date: 13 July 1943
• Docket Number: 30010.
• Citation: 26 S.E.2d 679,69 Ga.App. 758
• Court: Georgia Court of Appeals
• Parties: HARTFORD ACCIDENT & INDEMNITY CO. et al. v. CAMP.

26 S.E.2d 679

69 Ga.App. 758

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

No. 30010.

Court of Appeals of Georgia, Division No. 2.

July 13, 1943

Rehearing Denied July 27, 1943.

Syllabus by the Court.

J Elton Drake and Wm. E. Ball, both of Atlanta, for plaintiff in error.

Cecil D. Franklin, of Rockmart, for defendant in error.

STEPHENS Presiding Judge.

A. N Camp was injured on December 8, 1939 as the result of an accident sustained while in the employment of L. B Gallimore. On January 15, 1940, an agreement to pay compensation at the rate of $7.70 per week based on a weekly wage of $15.40 was entered into between the employee and the employer and Hartford Accident & Indemnity Company, the insurance carrier. This agreement was approved and made an award of the Industrial Board on January 31, 1940, and compensation was ordered paid to the claimant beginning December 15, 1939, at $7.70 per week during disability. On April 2, 1941 the claimant notified the Industrial Board that the insurance carrier "contends that applicant is able to return to work and therefore refuses to continue payments", and that "we also disagree as to percentage of disability." On June 12, 1941, a hearing was had before Director Monroe of the Industrial Board. A number of physicians and other witnesses testified relatively to the claimant's injury, the manner in which it was sustained, and the extent thereof. The director found that the insurance carrier and employer, having agreed to pay compensation to the claimant, which agreement was approved, the insurance carrier was not justified in refusing to continue payment, but was bound by the agreement "until such time as the claimant has returned to work or until they have made application with the Industrial Board either for a hearing or permission to stop the compensation" in accordance with the Code, § 114-706, and that the request for a hearing was not made by the insurance carrier but by the attorney for the claimant. The director held that "the only way a claim can come before the Industrial board after an agreement has been executed and approved by the board to pay compensation is on the ground of a change in condition." The director thereupon concluded, "as a matter of law, that it is the duty of the insurance carrier to resume the payment of compensation to the claimant in accordance with the agreements executed by the parties and approved by the Industrial Board and bring the payment up to date." The director further found "from the preponderance of the testimony adduced at said hearing that the claimant is totally incapitated to pursue manual labor and it is the opinion and he so finds from the preponderance of the medical testimony that his present disability is due to his accidental injury suffered on December 8, 1939", and that "the claimant is suffering from his original injury and the preponderance of all the testimony demands that the director find that the claimant is suffering total disability as the result of the accidental injury." This award was rendered on October 13, 1941. The award was supported by the evidence before the director and no appeal therefrom was taken by the employer and the insurance carrier. Thereafter the employer and insurance carrier applied to the Industrial Board for a hearing on the ground of a "change in condition" of the claimant. On March 11, 1942, a hearing was had before Director C. J. Bruce. At this hearing the insurance carrier and employer introduced the testimony of a physician to the effect that he kept the claimant in the hospital for ten days, giving him every possible kind of examination and test, that he went into the history of the claimant's case very thoroughly, that he made a positive diagnosis that the man had Parkinsonian disease; which by no means is traumatic in origin but is purely systemic, that the claimant's accident by no means precipitated his condition; that the claimant suffered somewhat from hysteria, and that in his opinion the claimant had a 25 per cent. disability traceable to his accidental injury. This doctor was not a witness at the hearing in 1941 when the first award was rendered. He testified that he made his first examination of the claimant on December 16, 1941 which was sometime after the first award. This physician testified in part as follows: "the diagnosis was Parkinsonian syndrome involving the right half of the body; hysteria, mild myositis involving muscles of the right lower lumbro-sacral region. This shaking is not produced by injury. That sort of thing, as far as I know, is never produced by injury. *** Parkinsonian syndrome is what laymen call palsy. Usually through flu or some disease affecting the brain cause it and is the usual cause of it." This testimony was objected to by the claimant on the ground that it had been adjudicated as to what caused the claimant's disability. The doctor further testified that "hysteria was the second part of the diagnosis, and that is based on findings, things rather characteristic of it, evidenced by complete anesthesia over the right half of the body." This testimony was likewise objected to by the claimant on the same...