Carriers Ins. Co. v. Myers

• Decision Date: 10 October 1979
• Docket Number: No. 58309,58309
• Citation: 261 S.E.2d 423,151 Ga.App. 674
• Parties: CARRIERS INSURANCE COMPANY et al. v. MYERS.
• Court: Georgia Court of Appeals

Page 423

261 S.E.2d 423

151 Ga.App. 674

CARRIERS INSURANCE COMPANY et al. v. MYERS.

No. 58309.

Court of Appeals of Georgia.

Argued Sept. 24, 1979.

Decided Oct. 10, 1979.

Michael Jablonski, Nancy R. Foster, Atlanta, for appellants.

Joe L. Anderson, Austell, for appellee.

McMURRAY, Presiding Judge.

This is a workers' compensation case. In 1976, claimant was injured while driving a company car on company business as a traveling salesman. The collision in which he was injured was duly reported to his employer, and he received medical treatment. No claim for workers' compensation was made. He continued to work for his employer, although under the care of a physician until January, 1978, when he made a claim for workers' compensation based upon the theory of a new accident, contending he could no longer make calls on his customers and that his employment was terminated by his employer because he could not do the work as it should be done. However, it was contended by the employer that his discharge was due to the way he was doing the job and not in any way due to his injury.

The administrative law judge made a finding of fact, based on evidence, that the claimant had a degenerative disc condition which was aggravated by the 1976 injury and was thereafter aggravated by the work he was doing for the employer. This was stated to be "by continuous driving and getting in and out of an automobile." The administrative law judge then determined that his termination was due to the fact he could not do the work as it should be done and that he became temporarily totally disabled as a result of the 1976 injury "since January 20, 1978." The award was made accordingly. Upon de novo review, the full board adopted this award with one of the board members dissenting. On appeal to the superior court the award was affirmed. The employer and insurer appeal. Held :

1. Error is enumerated that the award was based upon an erroneous legal theory as to a "new accident" and not a change of condition resulting in the temporary total disability of the claimant. A change of condition could not be found since no claim or determination had ever been made. The case is controlled adversely to the appellants based upon such cases as follows: Mallory v. American Cas. Co., 114 Ga.App. 641, 643, 152 S.E.2d 592; Aetna Cas. etc., Co. v. Cagle, 106 Ga.App. 440, 126 S.E.2d 907, and cits.; Callaway Mills Co. v. Yates, 106 Ga.App. 9, 10, 126 S.E.2d 305; National Union Fire Ins. Co. v....