Boswell v. Liberty Mut. Ins. Co
| Decision Date | 08 July 1948 |
| Docket Number | No. 31887.,31887. |
| Citation | 49 S.E.2d 117 |
| Parties | BOSWELL. v. LIBERTY MUT. INS. CO. et al. |
| Court | Georgia Court of Appeals |
Rehearing Denied July 28, 1948.
Syllabus by the Court.
1. Whether the hernia existed prior to the accident for which compensation is claimed under the Workmen's Compensation Act is a question of fact; and the Director's finding thereon is conclusive when based on competent evidence and in the absence of fraud. Code of 1933, §§ 114-412, 114-710.
2. The denial, because the hernia was found to be pre-existing, of medical and hospital expenses incurred by reason of a hernia under Code, § 114-412, does not preclude the recovery of compensation under the Workmen's Compensation Act for the period of total incapacity for work which is the result of an aggravation of the pre-existing hernia by an accident arising out of and in the course of the employee's employment.
3. While there is sufficient competent evidence in the record of this case to authorize the Director to find that the claimant was not entitled to the medical and hospital expenses which were the result of the operation to remedy the pre-existing hernia condition, the evidence leads inescapably to the sole conclusion that there was an accident arising out of and in the course of Boswell's employment which aggravated the pre-existing condition and demands an award of compensation for the period of total disability which was the result of such aggravating accident. The judgment of the trial court sustaining the action of the Board, denying compensation, is reversed.
Error from Superior Court, Floyd County; C. H. Porter, Judge.
Workmen's compensation proceedings by L. G. Boswell opposed by Brighton Mills, Inc., employer, and Liberty Mutual Insurance Company, insurer. To review judgment affirming denial of compensation and medical and hospital expenses, claimant brings error.
Reversed with directions.
L. G. Boswell filed a claim with the State Board of Workmen's Compensation for compensation and for medical and hospital expenses due to a hernia and to asubsequent aggravation thereof, both arising out of and in the course of his job as a weaver with Brighton Mills, Inc., which carried workmen's compensation insurance with the Liberty Mutual Insurance Company. The claim came on for a hearing before Director Arlie D. Tucker who denied both compensation and medical and hospital expenses. Proceeding regularly, appeal was had to the whole Board and subsequently to the Superior Court of Floyd County, Georgia, the award being affirmed on each appeal. The judgment of affirmance in the court below is here excepted to as error.
In substance the testimony of the claimant showed the following: That on the 14th or 15th of May, 1946, while lifting a heavy warp, or roll of yarn, into place behind a loom, he suffered pain in the right side above the groin and there was a slight swelling in that locality; that he had never had any symptoms of hernia, nor any idea that he had a hernia, prior to this time; that he reported the fact of this accident to his foreman, Mr. Joe Frick; that this accident was not disabling and that he continued to work without losing time from his job; that on October 7, 1946, while pulling on a warp which had become stuck something pulled loose in his side, and, suffering great pain, he went to the rest-room and found that there was a knot about the size of a guinea egg on his right groin; that he reported to Mr Frick that he was hurt and had to go to see the company doctor; and that the doctor immediately sent him to the hospital to be operated on for a strangulated hernia. On cross-examination the claimant was questioned in regard to an alleged prior inconsistent statement--that the first accident or hernia occurred some two years previously--made to an insurance investigator upon his return to work after the operation. The claimant denied having made this statement and the investigator's report was neither authenticated nor offered in evidence. Also on cross-examination Boswell denied that he had gone to see Dr. Dawson, the company physician, in April of 1946 and denied that the physician had found a hernia at that time; but he recalled having gone to see Dr. Dawson in May of that year, complaining of feeling generally run down, and recalled that Dr. Dawson had told him that he had a hernia.
The testimony of Beecher Collins, a fellow-worker of Boswell, showed that in May, while they were lifting the heavy warp, Boswell complained that he was hurt; that thereafter Boswell refused to help with heavy lifting because of his weak side; and that later in October, after they had been working a couple of hours in the morning, he saw Boswell with his coat and hat on and Boswell, holding his side, told him that he had hurt himself and that he (Boswell) was hunting Joe Frick, the foreman. On cross-examination Collins testified that he did not know of Boswell ever having complained of his side prior to the accident in May.
Boswell's foreman, Joe Frick, testified that Boswell had complained to him of having something wrong with him for some time, but that he did not recall having been told that Boswell was hurt in May and had not submitted an accident report; and that in October, Boswell had told him he was sick and hurting and had to go to the doctor, but that he did not understand that Boswell had suffered an accident and did not submit an accident report until after Boswell's return to work.
Dr. Harry E. Dawson, the company physician, testified that Boswell had come to him on April 20, 1946, complaining of general asthenia, and that upon examination, he had found that Boswell was suffering from a reducible femoral hernia on the right side and had recommended an operation; that when he examined Boswell in April, Boswell did not complain of the hernia nor mention the accident, but made only the minor complaint of general asthenia; that he was acquainted with Boswell previous to April, but that this was the first time that he had discovered the hernia; that when he examined Boswell in October, the hernia had become strangulated and that he assisted in the operation following this discovery; that the difference in the operation performed in October and the operation which would have been performed in April if the claimanthad abided by his suggestion at that time was that the October operation was far more complicated...
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