Butler v. Fidelity & Cas. Co. of New York
| Decision Date | 01 July 1953 |
| Docket Number | No. 34634,No. 1,34634,1 |
| Parties | BUTLER v. FIDELITY & CASUALTY CO. OF N. Y. et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The motion to dismiss the writ of error is denied.
2. Where the findings of the State Board of Workmen's Compensation are
authorized by the evidence and the award is not erroneous for any of the reasons set out in Code § 114-710, it was error for the superior court, on appeal, to remand the case for the taking of further testimony and, in effect, to set the award aside.
Leonard Butler filed a claim for workmen's compensation against his employer, Whitley Construction Company, and its insurance carrier, Fidelity & Casualty Company. The evidence introduced upon the hearing of the case before a single director was substantially as follows: The claimant was employed by Whitley Construction Company as a driver of a ready-mixed concrete truck. On or about April 21, 1952, the claimant drove a truck loaded with mixed concrete to a lot on Coventry Road, in DeKalb County, where the concrete was to be used in paving a driveway. The claimant backed the truck up the driveway and struck a retaining wall at one side, damaging the chute down which the concrete mix was to be poured from the truck. The claimant again backed the truck up the driveway, while one of the men spreading the concrete held the chute. The claimant got out of the truck at about the same time that the man holding the chute let go of it, and the claimant was struck across the head and face by the chute. He was stunned by the blow and rested some before returning to his employer's yard. He was in pain for the next few days, but worked until shortly after noon on April 23, 1952, when he became deaf in his right ear and weak in his right arm and leg, and was unable to speak. He could not see well and was dizzy and walked with a limp. He had previously been in good health.
Dr. Roy H. McClung testified that the claimant had suffered a subdural hemorrhage on the left side of his brain caused by the blow on his head; that the claimant did not have an ordinary stroke, caused by the rupture of one or both of the two small arteries at the base of the brain; that a subdural hemorrhage occurred beneath the outer membrane covering the brain; and that the claimant was totally and permanently disabled for any type of manual work. On cross-examination, he testified that in acute cases one suffering a blow might become unconscious in one or two hours, but that in other cases it might be several days before the maximum symptoms were reached. Dr. W. C. Blandford testified to substantially the same effect.
Dr. Rufus Askew, testified for the defendants, that the claimant had an ordinary stroke, and he did not think that it could have been caused by the blow sustained some five days earlier.
The single director made findings of fact in conformity with the evidence above stated, and found that the claimant had sustained an injury as the result of an accident arising out of and in the course of his employment, and was totally and permanently disabled. The claimant was awarded compensation of $17.07 per week for 350 weeks.
The defendants appealed to the full board for a review, and made a motion to have the claimant examined by two named doctors, to ascertain whether or not the claimant's condition could be cured or relieved by surgical treatment, and that they be allowed to submit further medical testimony to the effect that, by proper surgery, the claimant could be cured or relieved of his disability. The full board affirmed the award, stating that there was ample evidence in the record to sustain the findings of fact and the conclusions of law in the award.
The defendants then appealed to DeKalb Superior Court upon the ground, among others, that 'The directors acted in excess of their powers for the following reasons: (a) They refused to allow an examination by expert doctors upon petition of the Whitley Construction Company and the Fidelity and Casualty Company, whereby it may have been determined that the claimant could have been relieved by an operation, or cured.'
The judge of the superior court entered the following order: 'It is the order and judgment of the court, that a ruling or judgment on the appeal, be, and the same is deferred, and, that said case be, and it is recommitted to the State Board of Workmen's Compensation, that expert medical testimony may be submitted by both the claimant and defendant, (should they so desire) to the full board, on the question only, as to whether or not, by proper surgery or corrective treatment, the claimant may be entirely cured or his disability relieved and lessened, and that upon hearing said testimony, the full Board of Workmen's Compensation, re-affirm, modify, amend, or vacate its award in said case, as to the full board may seem mete and proper.'
The claimant excepted to this order.
J. Richmond Garland, Louis M. Tatum, M. T. Hartman III, Atlanta, for plaintiff in error.
John M. Slaton, J. Hugh Rogers, Atlanta, for defendants in error.
1. There is a motion to dismiss the writ of error on the ground that the appeal is premature, as the order excepted to is not a final judgment. Code § 114-710, providing for an appeal to the superior court from an award by the board, states in part: ...
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