Argonaut Ins. Co. v. Allen
| Decision Date | 14 April 1971 |
| Docket Number | No. 3,No. 45864,45864,3 |
| Citation | 182 S.E.2d 508,123 Ga.App. 741 |
| Parties | ARGONAUT INSURANCE COMPANY et al. v. John V. ALLEN |
| Court | Georgia Court of Appeals |
Syllabus by the Court
When there has been personal consultation with the patient, a psychiatrist's expert opinion concerning the cause of his mental condition is not subject to the objection that the opinion is based on hearsay.
The employer and insurer appeal from the judgment of the superior court reversing an award of the Deputy Director of the State Board of Workmen's Compensation and remanding the matter for further hearings.
The claimant severely injured his right hand in November 1968 working in a carpet mill. He received weekly benefits under an agreement that he had a 100% loss of use of the hand. In September 1969, his attending physician reported that he had shown improvement and that the loss of use was then 62%. The employer and insurer requested a change of condition hearing. Almost simultaneously, the claimant requested a similar hearing, contending that he was entitled to total disability benefits.
At the hearing, the attending physician's deposition repeated his opinion that claimant's present disability rating was 62%. An agent of the employer testified that the company had offered claimant a job pushing a handcart loaded with carpeting at $1.70 per hour, but after a trial period claimant said he couldn't do the work. He was 'sent home' since there were no other suitable jobs available. Upon questioning by the director, the employer again tendered claimant the handcart job and it appears from the transcript that both sides stipulated that the wages would be the same as those claimant was earning prior to his injury. Claimant testified that since the injury he had been nervous, jittery, annoyed by loud noises and unable to work. He stated that he had consulted a Doctor MacNaughton in Chattanooga for his nerves. Claimant requested that the record be kept open for 30 days in order to take and submit Dr. MacNaughton's deposition. The deposition was taken within the time allowed and sent to the board. In summary, the doctor testified that claimant had a neurosis caused, in his opinion, by the injury to his hand.
The director made the following findings of fact: (1) that claimant had a permanent 62% loss of use of his hand; (2) that he was partially incapacitated for work because of superadded injury-traumatic neurosis associated with the injury; and (3) that on the hearing date, he was offered employment suitable for his impaired capacity at a wage equal to or greater than $62.25 per week. Based on these findings the director made an award on March 20, a portion of which was for partial incapacity to work (Code § 114-405) and covered only the retroactive period November 1969-January 1970; and a portion of which was for a permanent partial handicap, beginning in January 1970 and running for the full statutory period of 170 weeks at the weekly rate of $25.39 (Code § 114-406) which included an award for total incapacity to work (Code § 114-404) beginning in January and running for 10 weeks.
The superior court set aside the award in its entirety, particularly stating that the latter portion ($25.39 for 170 weeks) was not supported by the evidence and was contrary to law, and singling out finding number 3 for quotation. It recommitted the controversy to the board for further hearings. Read as a whole, the order can only mean that the court did not believe there was evidence to support the factual finding that claimant was tendered employment within his capacity and that the low amount of the award reflected this erroneous finding and was therefore contrary to law.
Even though the trial court's ruling was largely in their favor, the employer and insurer appealed this judgment, enumerating as error the court's reversal of the award in toto, and its failure to specifically affirm finding number 1 (and the portion of the award applicable to it) and to reverse finding number 2 as not supported by any evidence. They strongly contend that Dr. MacNaughton's deposition was never tendered into evidence and therefore could not be considered either by the director or the court; that to remand and give claimant another chance to introduce this evidence is improper; or alternatively, if the deposition was properly before the board, it was of no probative value on the question of causation since the opinion was based purely on hearsay as related to the doctor by the claimant.
Woodruff, Savell, Lane & Williams, Lawson A. Cox, II, Atlanta, for appellants.
Smith, Cohen, Ringel, Kohler, Martin & Lowe, Williston C. White, Atlanta, for appellee.
The appellants' contention on lack of formal tender is without merit. In another workmen's compensation case where the record was left open for 30 days to receive medical testimony, this court held: Hembree v. Chevrolet Motor Division, 108 Ga.App. 113, 114, 131 S.E.2d 859, 860. Since Dr. MacNaughton's deposition contains a stipulation between counsel that it was taken for the purpose of evidence, it falls squarely within the Hembree rule and was properly considered by the director and court. See also Peters v. Liberty Mut. Ins. Co., 113 Ga.App. 41(2), 147 S.E.2d 26. This holding is not in conflict with Smith v. Continental Cas. Co., 102 Ga.App. 559, 116 S.E.2d 888; Howell v. Federated Mut., Etc., Ins. Co., 114 Ga.App. 321, 151 S.E.2d 195; and Jackson v. U.S.F. & G. Co., 119 Ga.App. 111, 166 S.E.2d 426, as these cases are distinguishable on their facts.
2. The second contention raises an issue never specifically considered by the Georgia courts-whether a psychiatrist's opinion evidence on the cause of a patient's disturbed mental condition is of no probative value since based upon statements related to him by the patient (hearsay).
Several peripheral rules come into play here. First, a physician may not testify to a history of the accident or injury as given him by the patient since it is hearsay. Paulk v. Thomas, 115 Ga.App....
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