Barry v. Aetna Life & Cas. Co.

• Decision Date: 21 November 1974
• Docket Number: No. 49810,No. 2,49810,2
• Citation: 211 S.E.2d 595,133 Ga.App. 527
• Parties: Herschell BARRY v. AETNA LIFE & CASUALTY COMPANY et al
• Court: Georgia Court of Appeals

Page 595

211 S.E.2d 595

133 Ga.App. 527

Herschell BARRY v. AETNA LIFE & CASUALTY COMPANY et al.

No. 49810.

Court of Appeals of Georgia, Division No. 2.

Nov. 21, 1974.

Rehearing Denied Dec. 13, 1974.

Aynes, Burger, Genins & Kirby, Richard R. Kirby, Atlanta, for appellant.

Skinner, Wilson, Beals & Strickland, Warner R. Wilson, Jr., Earl B. Benson, Jr., Atlanta, for appellees.

Syllabus Opinion by the Court

MARSHALL, Judge.

Claimant appeals the denial of his claim for workmen's compensation. The record shows that claimant had a history of back trouble that started in 1966 when he received an injury to his back while working in a restaurant in Hyannis, Massachusetts. He filed a claim under the workmen's compensation laws of that state and received between $3,000 and $4,800, the exact amount being disputed. Claimant then moved to Florida, and after working intermittently 'two weeks here, two weeks there,' he began work in another restaurant in Ft. Lauderdale in 1971. On the first day of employment he again injured his back and made a claim for workmen's compensation under Florida law and received $5,000 to $9,000, again he disputes the exact amount. He then moved to Atlanta, Georgia, and obtained employment in the restaurant at the Sheraton- Biltmore Hotel. On the first day of work he again injured his back while lifting meat weighing 35 pounds, and this injury is the subject of the present claim. All three of these injuries were to the same area of the back.

At the hearing, the claimant testified that he told the chef at the Biltmore who hired him that he was 'down in my back, but I can do light work . . . I can't do heavy lifting . . . all I want to do is some light things.' He also testified that when he started work he 'felt good' and was confident that he could do the work but that this would be a test period of work for him to see if he could go back to work.

The director entered findings and denied the claim. The denial was approved by State Board and after once being remanded for additional findings, the superior court affirmed.

The claimant enumrates errors in that the following findings of the director are not supported by the evidence: (1) 'that the claimant has not carried the burden of proving that he sustained an accident and injury which arose in and out of the course of his employment,' (2) that the claimant 'had not been released by the treating physician to return to his former employment' in Ft. Lauderdale, and (3) that 'any disability that the claimant may presently have was preexisting or brought on by this disregard of the medical recommendations.' Held:

We agree with claimant that the record does not support the first two findings enumerated above. The testimony of the claimant was that he was on the job and following the instructions of the chef when he lifted the meat that resulted in his back injury. This testimony is not supported by other witnesses, but it is not rebutted by the employer, and is therefore accepted as fact. The record also shows that claimant had been released by the physician who treated him in Florida for his injury there. The doctor's Dismissal Narrative, dated February 11, 1972, states, 'This patient is being dismissed as of this date; . . . he . . . is now ready for dismissal . . . It is my opinion this patient has reached full maximum medical benefits and may be released from treatment.' Except for some medication, heating pads and a back brace, the claimant was not under care of this doctor when he came to Atlanta or at the time of the injury.

However, the evidence does support the director's finding that claimant's disability was pre-existing and brought on by his disregard of medical recommendations. The claimant admitted that he had been told by his doctor in Florida to seek only sedentary type work. But this finding does not result in the legal conclusion that the claim be denied.

' No compensation shall be allowed for an injury or death due to the employee's wilful misconduct . . .' Ga.L.1920, p. 177; 1931, pp. 7, 43 (Code § 114-105). "The general rule is that mere violations of instructions, orders, rules, ordinances, and statutes, and the doing of hazardous acts where the danger is obvious, do not, without more, as a matter of law, constitute wilful misconduct . . . Such violations or failures or refusals generally constitute mere negligence, and such negligence, however great, does not constitute wilful misconduct or wilful failure or refusal to perform a duty required by statute, and will not defeat recovery of compensation by the employee or his dependents." Armour & Co. v. Little, 83 Ga.App. 762, 766, 64 S.E.2d 707, 710. See also Lumbermen's Mut. Cas. Co. v. Lynch, 63 Ga.App. 530(2) 11 S.E.2d 699; Shiplett v. Moran, 58 Ga.App. 854, 200 S.E. 449; Johnson v. Thompson-Starrett Co., 42 Ga.App. 739, 157 S.E. 363. The evidence shows that claimant told his employer that he could do only light work. The claimant was following the instructions of his supervisor when he lifted the meat and his supervisor knew of his back condition. It had been over a year since his back operation (a 'lumbar laminectomy and discectomy at L 4, 5 left') and eight months since he was released from treatment. Under these circumstances, even if this amounts to 'disregard of the medical recommendations' his attempting to return to work was not 'wilful misconduct' such as to bar his coverage under the Workmen's Compensation Act. 'To hold otherwise would penalize the claimant for attempting to continue working even though hurt to some extent.' Aetna Cas. & Sur. Co. v. Cagle, 106 Ga.App. 440, 126 S.E.2d 907.

In addition, the fact that the claimant had a pre-existing injury does not bar his recovery for a second injury. Instead the courts have held that 'the aggravation of a preexisting infirmity, whether congenital or otherwise, is compensable.' Thomas v. Ford Motor Co., 123 Ga.App. 512, 514, 181 S.E.2d 874, 876; Employers Liability Assur. Corp. v. Johnson, 62 Ga.App. 416(2), 8 S.E.2d 542. The aggravation of a previous injury by continued work is a 'new accident.' Blackwell v. Liberty Mut. Ins. Co.,230 Ga. 174, 196 S.E.2d 129; National Union Fire Ins. Co. v. Johnson, 122 Ga.App. 332, 177 S.E.2d 125; Pruitt v. Ocean Accident & Guarantee Corp., 48 Ga.App. 730(3), 173 S.E. 238.

While the claim for an aggravated pre-existing injury is not prohibited, it is limited by Code § 114-408, which we deem applicable to this injury. (Code § 114-409 does not apply because the amendment thereto, Ga.L. 1974, pp. 1143, 1151, cannot be applied retroactively. Code Ann. § 114-410 does not apply because the claimant's injuries are not permanent injuries as specified under Code Ann. § 114-406.) Code § 114-408 provides: 'If an employee who suffers an injury in his employment has a permanent disability or has sustained a permanent injury, such as specified in section 114-406, suffered elsewhere, he shall be entitled to compensation only for the degree of incapacity which would have resulted from the later accident if the earlier disability or injury had not existed.' While claimant has not sustained a permanent injury under Code Ann. § 114-406, the evidence indicates he suffered a partial 'permanent disability' as a result of his prior injuries.

The courts have interpreted this Code section so as 'to subject employers only to liability for . . . injuries resulting to employees during the time of . . . employment' and not to compensate the employee as if the prior injury had never occurred. American Mut. Liability Ins. Co. v. Brock, 165 Ga. 771, 142 S.E. 101; Georgia Ins. Service v. Lord, 83 Ga.App. 28, 62 S.E.2d 402. "(W) here an employee has sustained two permanent injuries superimposed one upon the other, and the injuries have been sustained in different employments, in determining the extent of the employee's disability attributable to the injury received during his last (current) employment, the Board of Workmen's Compensation should first determine the total disability found to exist after the last injury, determine the disability found to exist after the earlier injury sustained elsewhere and subtract the latter from the former, thereby arriving at the extent of disability to be attributed to the last injury, and compensated by the last employer." Dunn v. Hartford Acc. & Indemnity Co., 81 Ga.App. 283, 287, 58 S.E.2d 245, 248. See also Miller v. Independent Life & Acc. Ins. Co., 86 Ga.App. 538, 71 S.E.2d 705. Here we have no attempt made by the finder of fact to determine the extent of disability of the claimant's previous injuries, the amount and rate of compensation awarded in each instance, and whether the injury was temporary or permanent. Nor is there any evidence to support a finding of total disability resulting from the claimant's present injury. The only testimony in this regard was from the deposition of a doctor to the effect that he would not be able to do work requiring bending or lifting, but 'he might be able to do something light, like a night watchman.' The degree of disability, if any, is undetermined. See Brock, Dunn and Miller, supra, as to the duties of the finder of fact in this regard.

Where it affirmatively...