Armstrong v. Allstate Ins. Co.

• Decision Date: 01 July 1975
• Docket Number: No. 2,Nos. 50581,50582,s. 50581,2
• Citation: 135 Ga.App. 278,217 S.E.2d 486
• Parties: Ralph ARMSTRONG v. ALLSTATE INSURANCE COMPANY et al. ALLSTATE INSURANCE COMPANY et al. v. Ralph ARMSTRONG
• Court: Georgia Court of Appeals

Page 486

217 S.E.2d 486

135 Ga.App. 278

Ralph ARMSTRONG v. ALLSTATE INSURANCE COMPANY et al.

ALLSTATE INSURANCE COMPANY et al. v. Ralph ARMSTRONG.

Nos. 50581, 50582.

Court of Appeals of Georgia, Division No. 2.

July 1, 1975.

McDonald, McDonald & McDonald, Ernest McDonald, Ralph F. Martin, Jr., Dalton, for appellant.

Savell, Williams, Cox & Angel, John M. Williams, William S. Goodman, Atlanta, for appellees.

Clark, Judge.

This workmen's compensation case comes to our court via appeal and cross appeal from the order of the superior court affirming in part and reversing in part the award of the full board. In the appeal, claimant assigns error upon that portion of the order which reads: 'That part of the award which approved treatment by Dr. Warren H. Kimsey on and after August 24, 1973, is not supported by competent evidence and is therefore reversed. The full board found 'that the treatment by Dr. Warren H. Kimsey was of an emergency nature.' The record in this case shows that Dr. Kimsey testified that the procedure was elective surgery.' In the cross appeal, employer and insurer enumerate error upon that portion of the order which states: 'That part of the award which directs that the employer/insurer shall continue to pay compensation on the ground that the claimant has not undergone a change of condition as of the date of the hearing of January 8, 1974, and that he was at that time unable to return to full employment is supported by competent evidence and is hereby affirmed.'

1. The appeal. Code Ann. § 144-501 provides in part: 'If in an emergency on account of the employer's failure to provide the medical or other care as herein specified a physician other than provided by the employer is called to treat the injured employee, the reasonable cost of such service, within the limits of the amount set forth above, shall be paid by the employer if so ordered by the State Board of Workmen's Compensation.' 'Whether there is an emergency and whether the employer failed to provide medical care for the claimant is a question of fact to be resolved by the State Board of Workmen's Compensation. Owensby v. Riegel Textile Corp., 104 Ga.App. 800, 123 S.E.2d 147.' Anderson v. General Motors Corp., 118 Ga.App. 4, 6, 162 S.E.2d 464, 465. Thus, the question for decision in the main appeal is whether the evidence is sufficient to authorize the full board's conclusion that the treatment afforded claimant by Dr. Kimsey was 'emergency' treatment. Of course, if there is any evidence to support the board's finding on this issue, the superior court was bound to affirm (Hartford Accident & Indemnity Co. v. Sutton, 75 Ga.App. 24, 41 S.E.2d 915), and its partial reversal was error.

We think the superior court erred in reversing the award of the full board. 'An emergency is 'an unforeseen occurrence or combination of circumstances which calls for immediate action or remedy; pressing necessity; exigency,' . . .' Pollard v. Weeks, 60 Ga.App. 664(1d), 4 S.E.2d 722. See generally Ingalls Shipbuilding Corp. v. Holcomb, 217 So.2d 18 (Miss.1968). While, as the superior court observed, Dr. Kimsey referred to the treatment administered to claimant as 'elective surgery,' his entire deposition reflects the 'exigency' of the situation confronting claimant. Indeed, the doctor testified that an immediate operation was advisable and imperative in order to avoid the possibility of partial paralysis. Under these circumstances we cannot say the evidence was insufficient to support the conclusion of the full board. 'In order to render any finding of fact demanded as a matter of law, not only must there be no controversy in the evidence material to the issue involved, but the implications and inferences, which logically and properly arise from the evidence, must necessarily lead to only the one conclusion. The superior and appellate courts alike are bound by a finding of fact made by the Department of Industrial Relations, where it is thus authorized...