Carrollton Coca-Cola Bottling Co. v. Brown

• Decision Date: 19 January 1988
• Docket Number: No. 75550,COCA-COLA,75550
• Citation: 185 Ga.App. 588,365 S.E.2d 143
• Parties: CARROLLTONBOTTLING COMPANY, et al. v. BROWN.
• Court: Georgia Court of Appeals

Page 143

365 S.E.2d 143

185 Ga.App. 588

CARROLLTON COCA-COLA BOTTLING COMPANY, et al. v. BROWN.

No. 75550.

Court of Appeals of Georgia.

Jan. 19, 1988.

Mark S. Gannon and Richard G. Farnsworth, Atlanta, for appellants.

E. Lamar Gammage, Jr. and George E. Mundy, Cedartown, for appellee.

BIRDSONG, Chief Judge.

This is a workers' compensation discretionary appeal arising out of the employer's requests for change of physicians, for suspension of benefits for failure of claimant to cooperate with rehabilitation and for termination of benefits based on claimant's "change of condition."

The claimant Terry Brown, while a route salesman with Coca-Cola Bottling Company of Carrollton, suffered a ruptured disk in 1978 at age 28 while lifting a Coca-Cola crate. He has had four back operations, three of them deemed unsuccessful. He has experienced increasing pain, unrelieved except by use of narcotic painkillers. His mental health has deteriorated so that his orthopedic physician, Dr. Benton, referred him to a psychiatrist, Dr. Carter. In Dr. Carter's care, Brown has been hospitalized 20 times for severe depression and "nerve problems" caused by constant pain and the psychological effects of his inability to work.

In 1984, a fifth, highly dangerous "last resort" operation was recommended. This operation is attempted only in "life and death" situations; it does not promise success. Viewing this operation as ill-advised and seeing the claimant's physical and emotional condition steadily worsen while his consumption of drugs increased, apparently to the point that he injects them into himself, the employer requested a rehabilitation conference. The ALJ appointed a rehabilitation supplier, Nurse Sullivan. She proposed as an alternative to surgery that the claimant attend the Miami Pain Clinic, and secured his admission. This clinic provides a controversial but highly successful regimen that involves "fighting through the pain." It is not clear, though, that Brown's apparent drug dependency was fully taken into consideration in these plans, since evidently it was not considered a significant problem by his own physicians. It is also not indicated that the claimant was fully prepared for, or even clearly aware of, the fact that the clinic plans involved detoxification.

Claimant and his wife arrived in Miami in February 1985 for 3 days of evaluation prior to treatment. The clinic head, Dr. Rosomoff, assessed Brown as a "sensitive inhibited individual who is easily upset." On the first day of treatment, hospital personnel took all his medications away. Although later the clinic physicians denied having taken his medications away, Dr. Rosomoff's own discharge summary states clearly that after the evaluation period, Brown was "placed on Percocet, p.o., to begin detoxification. However, this may not have been strong enough to control the withdrawal."

The claimant testified that at his first physical therapy encounter, the therapist commenced to pull and bend his leg with such enthusiasm that "I thought I was about out of my head." He begged her to stop but she said, "No pain; no gain," and continued her ministrations. Finally, he said, "I'm sorry, I can't take the pain," and she said, "Well then leave." So he did. The discharge summary states that when he left ("against medical advice"), he was undergoing "severe drug addiction withdrawal." Nurse Sullivan testified that she "doubt[ed]" the therapist would have done exercises and manipulations that would have been painful; yet she stated contradictively that the express goal of the regimen was to teach the patient to increase his pain threshold and tolerate pain.

The claimant returned to Atlanta in a very nervous, depressed and angry condition. He feared he would commit suicide. Dr. Carter readmitted him to the hospital psychiatric unit. Thereafter he forbade Nurse Sullivan to see Brown because he deemed her contacts counterproductive to all his progress in stabilizing Brown's nerves and depression; furthermore, Brown no longer trusted her. Dr. Carter concluded Brown was not psychologically capable of dealing with the clinic program at that time.

At this stalemate, the employer/insurer made its formal requests and a hearing was held. The ALJ granted the request for change of the psychiatrist (Dr. Carter) but denied a change of the orthopedist, Dr. Benton, and retained Nurse Sullivan as rehabilitation supplier. He found that "because of the complexities of this case the failures of the claimant [to comply with the rehabilitation directives] are a direct result of dependency to drugs prescribed by the treating psychiatrist ...," and the motion to suspend benefits was denied.

On appeal, the board ordered an independent psychiatric evaluation by Dr. Mercer (who it had been proposed would replace Carter). Dr. Mercer was specifically to address the question of Brown's chemical dependency and manipulative behavior. He found Brown to be of suicidal risk and suffering from chronic pain syndrome, and recommended he be treated for his chemical dependency in a drug rehabilitation unit.

Thereupon, the board affirmed the ALJ's order, except to deny the change of psychiatrist from Carter to another, finding that "it is unwise to disturb claimant's standing relationship with [Carter] and [Benton]." The board suspended rehabilitation efforts indefinitely, but directed Drs. Benton and Carter to "immediately undertake an interdisciplinary approach to effectively treat claimant's drug dependency (if any) and psychological problems."

The superior court found evidence supporting the board's award and affirmed it. The employer/insurer appeals to us. Held:

1. We have stated the evidence as it favors the award (see Lockhart v. Liberty Mut. Ins. Co., 141 Ga.App. 476, 233 S.E.2d 810) and find that there is evidence to support it on the narrowly confined issues of change of physician and failure to cooperate with rehabilitation. See Galmon v. Seabreeze Mfg. Co., 181 Ga.App. 132, 133, 351 S.E.2d 521. We find further that while opinions may differ as to the most judicious way to resolve the difficult problems of this case, the board's award was not so patently whimsical, arbitrary, capricious and unrestrained to constitute an abuse of discretion under Columbus Foundries v. Moore, 175 Ga.App. 387, 333 S.E.2d 212. The decision in Columbus Foundries can be explained by reference to OCGA § 34-9-105 (c) (4); a charge of abuse of discretion must be sparingly made and such abuse will rarely be found unless the award is so far outside the evidence as to be defective under § 34-9-105 (c). It is not so in this case. The board clearly acted carefully and within the evidence and effected a judicious compromise by retaining Brown's present physicians but directing them to treat his chemical dependency before further effort is made to rehabilitate.

The appellants contend some of the claimant's own testimony is self-contradictory, which fact demands a ruling against him under Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680. This contention is a perversion of what Prophecy Corp. says. Clearly the law does not require a ruling be entered against a party who makes an arguable self-contradiction on a single or minor point amidst a sea of favorable evidence.

Prophecy Corp. involved summary judgment proceedings, and pointed out as a basis (p. 28, 343 S.E.2d 680) that at a trial, where the favorable portion of a party's self-contradictory testimony is the only evidence of his right to recover or of his defense, the opposing party is entitled to a directed verdict. Therefore, on summary judgment if the party contradicted himself on the dispositive issue of the case, this testimony is construed against him. Prophecy Corp. held that even so, the trial court may determine that such a contradiction is "reasonably explained," and in any case the rule applies only to direct contradictions, not vague or equivocal testimony. The contradictions which appellants have strained to find in the claimant's medical testimony are not direct unequivocal testimony on the dispositive issue of the case nor do they constitute the only evidence in claimant's favor. Some of these "self-contradictions" (e.g., the assertion that claimant has in fact refused the fifth operation while seeking to retain the physician (Benton) who advocates it; and is seeking to retain the physicians who have fostered his chemical dependency while claiming he is unable to undergo rehabilitation which fact he arguably admits is due to his drug addiction), are so subjectively equivocal and unclear that they do not constitute self-contradictions of the only evidence in claimant's favor, so much as they show claimant's floundering confusion in a complex case. This straining at gnats has contributed mightily to the clouding of the salient issue in the case, as shown below.

2. We reverse the superior court's affirmance of the board's award, because the forums below erroneously failed to consider a salient issue which might have affected all issues. This issue was the request for a suspension of benefits based upon a change of condition of claimant's status, economically and physically. The employer/insurer contends the superior court erred "in failing to reverse the [board] in denying that appellee had undergone a change of condition for the better." This assertion misstates the case. The fact is the board did not rule on the issue at all.

Claimant's evidence showed he is totally unable to work, must use a cane, and spends most of his time in bed or in a chair at home, unable to do even yardwork or housework. The employer/insurer at the ALJ's hearing produced an investigator, Keaton, who testified he surveilled the claimant for three days in his hometown...