Automatic Sprinkler Corp. of America v. Rucker

• Court: Georgia Court of Appeals
• Writing for the Court: GARDNER
• Citation: Automatic Sprinkler Corp. of America v. Rucker, 87 Ga.App. 375, 73 S.E.2d 609 (Ga. App. 1952)
• Decision Date: 12 November 1952
• Docket Number: No. 34260,No. 2,34260,2
• Parties: AUTOMATIC SPRINKLER COPR. OF AMERICA et al. v. RUCKER

Page 609

73 S.E.2d 609

87 Ga.App. 375

AUTOMATIC SPRINKLER COPR. OF AMERICA et al. v. RUCKER.

No. 34260.

Court of Appeals of Georgia, Division No. 2.

Nov. 12, 1952.

Rehearing Denied Dec. 20, 1952.

Syllabus by the Court.

1. The provisions of Code § 114-305, that 'The right to compensation under this Title shall be forever barred unless a claim is filed with the Department of Industrial Relations within one year after the accident,' do not apply to a claim properly filed under Code § 114-709, based on a change in the condition of the claimant, seeking to review a settlement agreement or award, such a proceeding being properly instituted within two years 'from the date that the board is notified of the final payment of claim.'

2. Where an award of the full Board is based upon an erroneous conclusion drawn from the facts and the law applicable thereto, it is proper for the judge of the superior court to reverse such award and enter such judgment in the case as is proper under the law and the facts as disclosed by the record in the case.

On January 28, 1949, H. L. Rucker, Sr. (hereinafter called the claimant), while in the employ of Automatic Sprinkler Corporation of America (hereinafter called the employer) and engaged in the performance of his duties, received an injury to his arm. It appeared that the claimant was holding a chisel when a fellow employee accidently struck his arm with a hammer, mashing same. The claimant was examined by Dr. Timberlake, the company physician. He found that the claimant had sustained an injury to his arm. According to the doctor, no mention of any other injury was made by the claimant. The claimant was paid compensation under an agreement, approved by the State Board of Workmen's Compensation for such injury. At the time the claimant was struck by the hammer, he stated that he was in a stooped position and that he felt a pain in his back. The claimant remained off work for some six weeks and returned on March 7, 1949. He stated that he could not work on account of his back paining him and had to quit. This was on or about March 18, 1949. He stated that by reason of such back condition he was unable to perform his work. He had an operation performed on his back, which necessitated his remaining in the hospital for 31 days. On May 11, 1950, the claimant made application to the State Board of Workmen's Compensation for a hearing, based on the ground of a change in condition, and on May 31, 1950, a hearing was had before a single director, George N. Blanos. At this hearing the foregoing facts appeared. Evidence was introduced to the effect that the claimant's back was either hurt on January 28, 1949, or that the accident on that day aggravated his preexisting back condition. The company doctor testified that the claimant when he first examined him did not mention anything about his back paining him or any injury thereto, and that in his opinion any back injury suffered by the claimant was due to an injury thereto which the claimant had said took place when he was lifting some pipe on a previous occasion, i. e., during December, 1948.

Dr. William W. Moore, who treated the claimant for his back or spinal ailment, testified by deposition to the effect that the claimant was at that time (May 31, 1950) temporarily totally disabled 100 percent, because of his back, and that this condition would last from four to six months, after which time the claimant would be 50 percent permanetly disabled as a result of his back injury. There was evidence to the effect that this back or spinal injury and disability resulted from the accident on January 28, 1949, or that this accident aggravated same. The single director on July 20, 1950, found in favor of the claimant and awarded compensation to him, based upon an average weekly wage of $80, of $20 per week for a period not exceeding 350 weeks. The director found as a matter of fact that the claimant 'is now suffering a 100 percent temporary total disability as a result of the injury of the back and has been suffering said percentage of disability since March 18, 1949'; that 'the date of March 18, 1949 was derived from * * * claimant's testimony as having quit ten days or two weeks from the date of March 7, 1949, which was the date * * * claimant returned to work.' The director further found that 'from the great weight of testimony and personal observation of the testifying on the stand of * * * claimant, establishes the fact of an accidental injury occurring on January 28, 1949, and which resulted in injury of the back, said accidental injury arising out of and in the course of employment,' or because 'the alleged injury aggravated the back [injury, from an injury acquired previous to January 28, 1949].' (Brackets ours.) The single director further found 'as a matter of fact from the testimony * * * of Dr. William W. Moore, * * * that claimant will be temporarily disabled for about 4 to 6 months, and after then * * * claimant will have a permanent disability of approximately 50 percent.'

The employer and insurance carrier appealed to the full board for a review of this award, and on September 5, 1950, the full board passed its order and award, in which it is provided: 'After careful consideration of the entire record * * * the Board finds that the present disability complained of by the claimant * * * on a change in condition was never reported in connection with the original accident of January 28, 1949. The only injury and disability complained of as a result of the accident of that date was an injury to the left wrist for which claimant was paid some compensation by agreement duly approved by this board. The present action on change in condition is based on a complained of disability to the back and the claimant alleges that said back disability results from the same accident of January 28, 1949. The board finds that no report was made and no claim was filed for back injuries within one year from the date of said accident [meaning that of January 28, 1949], and the board, therefore, finds that this present action by the claimant on the ground of a change in condition cannot be entertained; the same having been based on an entirely new source of disability and not a change in condition of the original injury for which compensation has been paid.' (Brackets ours.) The board then reversed the award of the single director of July 20, 1950, and claimant's claim for compensation on the ground of a change in condition was denied.

The claimant, within the time provided by law, appealed from this award to the Superior Court of Fulton County, and judgment was rendered by Judge George P. Whitman of that court on July 3, 1952, in which he set aside the award of the full board, reversing the finding of the single director. In this judgment it was provided that the award of the full board being 'based on a legally erroneous theory, said award is hereby reversed and said case is hereby remanded to said State Board of Workmen's Compensation for further findings as hereafter set forth.' The court ruled: 'The award * * * appealed from appears to be predicated on the ground that the alleged back injury complained of as a change in condition was not reported nor claim filed therefor within one year from the date of the accident on January 28, 1949, and that the one-year limitation for filing claims (Code, § 114-305) was applicable and controlling rather than the two-year limitation relating to the review of an award or settlement on the ground of a change in condition. (Code, § 114-709).' Judge Whitman's order provided that 'the mere fact that a compensable injury resulting from a certain accident does not develop or arise or become known until after an award or settlement has been made in respect of another and different injury resulting from the same accident, does not bar or foreclose the right of the claimant to claim compensation for the disabling injury developing or arising or becoming known, and that such claim may be awarded as for a 'change in condition' within the meaning of the law.' The court then said that there appears to be evidence in the record from which the conclusion may be drawn that the disability was caused by the accident of January 28, 1949 or that same was aggravated by such accident. The court ruled: 'The full board does not make any finding of fact in respect of the cause of the back injury or condition * * *. It merely finds that no report was made and no claim filed for back injuries within one year from the date of the accident of January 28, 1949. The legal finding that the claim cannot be entertained is based only on the contention of the claimant that the back disability resulted from that accident, and it is on this assumption only that the board applied with is * * * held to be the erroneous legal limitation of one year. It cannot be said that the record demands a finding that the alleged back condition did not result from the accident in question either originally or as aggravation of a prior injury or injuries. This court is inhibited from deciding issues of fact. This court is without power to make a finding as to the cause of the claimed back condition based on the present state of the record, nor is it within the province of this court to issue any directive to the board to make any particular finding of fact as to the alleged back condition, and if it exists, as to the nature and cause thereof.' The court then held: 'The award of the full board being based on an erroneous theory (that is, application of the one year limitation to the back disability, assuming it resulted from the accident of January 28, 1949, and there being [an] issue or issue of fact to be determined in relation to the cause of the back condition), the award of the full board is hereby reversed and the controversy remanded and recommitted to the State Board of Workmen's Compensation for further hearing or proceeding in conformity with...