Cameron v. American Can Co.

• Citation: 120 Ga.App. 236,170 S.E.2d 267
• Decision Date: 02 September 1969
• Docket Number: No. 44601,No. 2,44601,2
• Parties: Charlie CAMERON v. AMERICAN CAN COMPANY
• Court: Georgia Court of Appeals

Page 267

170 S.E.2d 267

120 Ga.App. 236

Charlie CAMERON v. AMERICAN CAN COMPANY.

No. 44601.

Court of Appeals of Georgia, Division No. 2.

Sept. 2, 1969.

Leroy Langston, Hugh F. Newberry, George A. Haas, Atlanta, for appellant.

Sanders, Mottola, Haugen & Wood, Willis G. Haugen, Newnan, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Judge.

Claimant in this workmen's compensation case sustained a back injury doing lifting work on June 18, 1967, and a form 16 agreement to pay compensation at the rate of $37 per week was approved by the Board August 7, 1967. On December 2, 1967, the employer filed a request for a hearing based upon a change in condition contending that claimant could go back to work at a job suitable to his physical capacity but had refused. At the hearing before the deputy director there was introduced a letter dated November 27, 1967, from the employer to claimant reciting prior telephone and personal conversations with claimant in regard to returning to work and reiterating the employer's position that the job of 'reinspection' of carbonated beverage cans, a sedentary job which it was felt plaintiff could perform, was still open for him. Claimant testified that 'American Can Company has an easy job for me to do working in re-work (reinspection for quality)' but that he was unable to perform it. The deputy director found from the letter of November 27 that the employer offered claimant the job but that he was unable to perform it, and that he remained totally incapacitated from the injury until the third week in January, 1968, when he began working for a pharmacy driving a pick-up truck and delivering drugs. An award was accordingly entered based upon partial instead of total incapacity.

Upon the employer's appeal to the full board it was ordered that the case be 'remanded for the purpose of taking additional evidence as to the nature of the employment offered to the claimant and medical evidence as to the claimant's ability to perform the work which was offered to him. The majority of the full board is of the opinion that this evidence is necessary in order that an intelligent and equitable award can be rendered in the case.' The board allowed the parties 45 days to complete the evidence by deposition or 15 days to request an additional hearing before the deputy director. Pursuant to this order the employer took the deposition of its employee, Henry McCusker, who testified regarding the nature of the offered employment, and the deposition of Dr. Warner Wood, who testified that in his opinion claimant could have performed the job at the time it was offered to him. The full board then found that the claimant refused employment offered to him by the employer on November 27 which was 'sedentary in nature and required no physical exertion beyond that of merely being present in person for minor duties. The medical testimony revealed that the claimant's medical condition was such that he was capable of performing the duties of the employment offered to him.' The board was therefore of the opinion that claimant's refusal to accept the employment suitable to his impaired condition was unjustifiable, and accordingly it suspended his right to compensation. The superior court affirmed, and the claimant appeals. Held:

1. (a) Claimant contends that the board acted outside of and in excess of its powers when it ordered the taking of additional testimony as to the character of the offered job and as to claimant's ability to perform it. This argument, as we understand it, is based upon the final sentence of Rule 17 of the board which provides: 'Where a hearing has been set upon a request to show a change in condition and if there be medical questions involved, the movant shall introduce the medical evidence supporting such change in condition at the time of the hearing, either by testimony or deposition or any other way evidence may be introduced in trials of the superior courts of this State.' Rules and Regulations, State Board of Workmen's Compensation, Appendix, Code Ann. Title 114. This rule does not deal with the discretion of the board to order the taking of additional testimony but appears to have as its purpose the requirement that movant's medical evidence shall be introduced at the change-of-condition hearing itself rather than holding the record open for such evidence. See Rule 20 of the board. It cannot seriously be questioned that the full board has discretion to order the taking of additional testimony. Code Ann. § 114-708...