Bituminous Cas. Corp. v. Mowery

• Decision Date: 30 January 1978
• Docket Number: No. 54649,No. 2,54649,2
• Citation: 145 Ga.App. 45,244 S.E.2d 573
• Parties: BITUMINOUS CASUALTY CORPORATION v. Dale MOWERY
• Court: Georgia Court of Appeals

Page 573

244 S.E.2d 573

145 Ga.App. 45

BITUMINOUS CASUALTY CORPORATION v. Dale MOWERY.

No. 54649.

Court of Appeals of Georgia,Division No. 2.

Jan. 30, 1978.

Rehearing Denied Feb. 28, 1978.

Hutcheson & Hull, Ward D. Hull, Decatur, for appellant.

Henning, Chambers & Mabry, Lawrence J. Hogan, Atlanta, Jones, Wilson & Tomlinson, John J. Jones, Decatur, for appellee.

QUILLIAN, Presiding Judge.

Plaintiff Mowery brought an action against his employer's insurer, the Bituminous Casualty Corporation, for "no fault" benefits under the provisions of the Georgia Motor Vehicle Accident Reparations Act (Code Ann. Chapter 56-34B (Ga.L.1974, pp. 113 et seq., as amended)).

Mowery was a driver-salesman for the Dixie Bottle and Beverage Company. His duties required him to manually load his truck with 80-110 kegs of beer. Each keg of beer weighed approximately 180 pounds. He also had to unload the kegs and truck them to the purchaser's storage area and again stack them. He estimated that during a normal day he would lift approximately 40,000 pounds.

On September 22, 1975, while engaged in his employment, he was involved in a motor vehicle accident and was injured. As a result of those injuries he was treated at the Howell Industrial Clinic by Dr. Howell. After three visits to the Clinic, Dr. Howell referred plaintiff to Dr. Moore for further treatment. Mowery testified that his neck had gone stiff, a large knot had developed on the back of his neck, and he had unbearable pain throughout his head, arms and legs. Mowery stated that while undergoing treatment, the pain kept getting worse, he developed numbness in his legs, and was not satisfied with the treatment he was receiving.

Dr. Moore submitted his medical report on the plaintiff to the defendant insurer on November 5, 1975. His report stated: "I think he has had an acute cervical strain which needs nothing other than conservative treatment with the use of cervical halter traction, heat and analgesics . . . I find nothing to suggest any significant nerve involvement . . . I think he should continue to use his traction and heat, and I have asked him to gradually increase his activities, and I plan to see him in two weeks time . . . I frankly see no reason why we should not expect him to return to whatever kind of work he was doing in the past." (Emphasis supplied.) After receiving this report on November 5, the insurer sent the last check for lost wages to the plaintiff on the following day. Plaintiff stated that he submitted a bill to the insurer for a "cervical traction unit" which had been recommended by the doctor and it was denied. Plaintiff testified that because "they wouldn't pay for the traction unit" he retained an attorney who notified the insurer he was representing the plaintiff. Plaintiff's attorney submitted bills to the insurer for medical expenses incurred by Mr. Mowery on November 10.

On November 14, an adjuster for defendant insurer notified plaintiff's attorney: "It has been brought to our attention that the workmen's compensation carrier . . . has in fact previously submitted payment for these accrued medical expenses. As you know there is nothing in the Georgia Vehicle Accident Reparations Act clearly stating what insurance carrier is primarily responsible for medical expenses accrued by injured claimants. Since Mr. Mowery's claim is being handled under workmen's compensation and since we are allowed to pay directly anyone rendering medical treatment, we feel no obligation to pay these expenses. We feel that the workmen's compensation carrier should be the primary source as always, if such coverage does apply to an injured party. We merely want to prevent an injured party from profiting as a result of the vagueness of these new laws."

Mr. Mowery testified that because he was "hurting so bad" after he discontinued treatment from Dr. Moore, he consulted Dr. Wood, an orthopedic surgeon, for treatment of his condition. Dr. Wood stated that X-rays revealed "narrowing of the C6-7 intravertebral disc space, with both anterior and posterior hypertrophic spur formations." Dr. Wood entered Mr. Mowery into the hospital and performed an electromyogram and nerve conduction study. These tests were positive. A myelogram was performed on the defendant's spinal column which revealed "a narrowing of the dye fluid at the C6-7 level, a large posterior spur projecting back and appearing to compromise the roots and perhaps even the spinal cord at this level. The nerve roots at the C6-7 level were very pronounced, they were swollen, . . . and this was very obvious on the myelogram."

Dr. Grady, a neurosurgeon, assisted Dr. Wood in these tests and they operated on Mr. Mowery on July 27, 1976, performing an "anterior cervical spine fusion." Both doctors, the neurosurgeon and the orthopedic surgeon, were of the opinion that the accident of September 22, 1975 could have been the precipitating cause of the plaintiff's injury and at no time during the period following the accident until after the operation was the plaintiff able to perform the duties required of him in his occupation.

The accident occurred on September 22, 1975. The insurer took a written accident report from Mr. Mowery on September 24. Defendant forwarded a "no fault" claim form to plaintiff on October 2 and it was returned on October 9, authorizing a release of medical information to the insurer. Plaintiff received payment of lost wages for five weeks but no medical payments were ever made by the insurer. The defendant's assistant claims manager admitted that the medical claims were denied "because it had been paid." On December 18, 1975, the insurer received a report from Dr. Moore that concluded: "I think this man is troubled more with nervousness and apprehension than he is with any significant physical disorder. I think return to work is probably the best possible medical treatment he can have. I have discussed this with Dr. Howell. He is going to check with Dr. Howell before returning to work." However, defendant had stopped payments to the plaintiff on November 6. On January 2, 1976, the insurer forwarded a copy of Dr. Moore's report to plaintiff's attorney with the statement that "Dr. Moore released Mr. Mowery to perform usual work duties as of 10-27-75. I cannot see that we owe further payment of weekly benefits or medical."

Plaintiff then saw Dr. Wood on January 28. His attorney filed this action on February 24, 1976. After receiving the transcribed deposition of Dr. Wood, the defendants tendered the total amount remaining due under the policy, which had a $5,000 limit. The jury returned a verdict for the plaintiff for $4,235 medical "charges as directed," $1,984 attorney fees, and $7,956 punitive damages. The court made the verdict of the jury the judgment of the court. Defendant appeals. Held :

1. Defendant contends that the trial court erred in overruling their objection to medical treatment received by the plaintiff "subsequent to the filing of the complaint". We do not agree. Evidence which is relevant is admissible. Code § 38-201. It is relevant if it relates to the questions being tried by the jury, either directly or indirectly, tends to illustrate or explain the issue, or aids the jury in arriving at the truth. Kalish v. King Cabinet Co., 140 Ga.App. 345, 346, 232 S.E.2d 86. Evidence of medical treatment for the injury resulting from the accident, which was the basis of this action, is relevant where it tends to show that plaintiff's claim for reparations was valid and his medical treatment necessary. Defendant's expert was of the opinion the plaintiff's claimed injury was "more . . . nervousness and apprehension than . . . any significant physical disorder." The same medical expert released the plaintiff to return to his duties, according to the defendant on "10-27-75." We find no legal reason to prohibit the testimony of a rebuttal witness who examined the plaintiff after an action was filed where his opinion is relevant to the cause of the injury, its effect, and even its medical resolution which occurred after the action was filed. It is clearly relevant to the controlling issue the validity of plaintiff's claim for compensation. See Graves v. Campbell, 35 Ga.App. 418(1), 133 S.E. 267. We find no error as to the first two enumerations.

2. In its third enumeration of error defendant claims it was error for the court to deny their "motion for directed verdict as to Count One." On the pages cited by defendant's brief, we found what was termed "a motion addressed to count 1." The basis of that motion was apparently whether or not the refusal of the defendant to pay the medical claims of the plaintiff was "reasonable." Counsel for defendant admits "the question of payment of medical expenses had become moot because it was agreed by the parties and the Court that the appellant owed the entire balance of 'no fault' benefits as weekly income benefits for the weeks the plaintiff was disabled. (Cits. omitted.) The Appellant's motion was therefore addressed to the issue of penalty, attorney's fees and punitive damages contained in Count One."

The Code provides: "(b) Benefits required to be paid without regard to fault shall be payable monthly as loss accrues. Such benefits are overdue if not paid within 30 days after the insurer receives reasonable proof of the fact and the amount of loss sustained . . . In the event the company fails to pay each benefit when due, the person entitled to such benefits may bring an action to recover them, and the company must show that its failure or refusal to pay was in good faith . . . " Code Ann. § 56-3406b(b) (Ga.L.1974, pp. 113, 119; 1975, pp. 1202, 1208). Thus, the issue presented is whether the defendant's action in refusing to pay plaintiff's claim amounted to "good faith."

The argument articulated to the trial court was that this is a matter of first impression as to whether the "no fault" insurance carrier is required to pay the...