Fralish v. Royal Indem. Co

• Decision Date: 19 June 1936
• Docket Number: No. 25248.,25248.
• Citation: 53 Ga.App. 557,186 S.E. 567
• Parties: FRALISH . v. ROYAL INDEMNITY CO. et al.
• Court: Georgia Court of Appeals

53 Ga.App. 557

186 S.E. 567

FRALISH .

v.ROYAL INDEMNITY CO. et al.

No. 25248.

Court of Appeals of Georgia,

Division No. 1.

June 19, 1936.

Syllabus by Editorial Staff.

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Proceeding under the Workmen's Compensation Act by L. A. Fralish, employee opposed by the Royal Indemnity Company and another. To review a judgment of the superior court affirming an award of the Department of Industrial Relations and remanding the case, the claimant brings error.

Affirmed.

Statement of facts of MacINTYRE, J.

The bill of exceptions in this case was brought to review the judgment of the superior court affirming the award of the Department of Industrial Relations. To understand the award and the judgment affirming it, it is necessary that a brief history of the accident, injury, claim, and various awards be considered. The Fisher Body Company of Atlanta was insured by the Royal Indemnity Company for employer's liability insurance. On January 8, 1931, Little A. Fralish, aged 30 years, and with a wife and two children, was injured while in the employ of said Fisher Body Company. While the employee was bending over in performing his duties of putting in kick-up pans in the body department of said company, a deck lid fell on his back and inflicted certain injuries. The claimant was on that account prevented from resuming his work, and was attended by the company physician. Notice of the accident and the injury were given to the Department of Industrial Relations on January 13 of that year. On January 19, thereof, the employer and injured employee entered into a written agreement, on a form provided by the Department of Industrial Relations, reciting that the injury was received as above stated, that the regular weekly wages of the employee were $30, and that the employer would pay to the employee $15 per week beginning January 15 of that year, during disability, and also necessary medical expenses not exceeding $100. The department approved the agreement, and rendered an award accordingly, reciting therein that the employee was to be paid by the employer weekly compensation at the rate of $15 per week during disability, beginning on January 15. At the instance of the employee, a notice of a hearing on his claim for compensation because of an alleged change in his condition was given. It appeared that on April 30, the employer and insurance carrier had ceased making payments of compensation in compliance with the above-mentioned consent award. This claim was finally heard, after continuance, "to determine the status of disa-bility and extent of same." There was evidence to the effect that the employee was 100 per cent. disabled, that he had to keep his back braced and strapped, that his kidneys and vertebra were injured and he could not hold his urine, that he could not sleep lying down, and had to be propped up or sleep sitting in a chair, and that he could not perform his work. There was also evidence that the employee was afflicted with traumatic neurosis, a mental condition, sometimes of the imagination. There was also evidence that the employee was somewhat better than right after his injury, and could perform some labor. T. E. Whitak-er, the commissioner before whom the hearing was had, found "from all the evidence in this case that the claimant, at the time compensation was stopped on April 30, 1931, was physically unable to return to work, and further finds that up to the time of the hearing, judging by the evidence in the case, that he was still unable to engage in competitive manual labor. It is therefore ordered that the Fisher Body Corporation of Atlanta, employer, and/or the Royal Indemnity Company, insurance carrier, resume payment of compensation as of April 30, 1931, at the rate of $15 per week and continue the same during the period of disability within the time limit fixed by law." The insurance carrier and the employer appealed from this award to the superior court of Fulton county. There were certain inaccuracies and mistakes in the report of the evidence on the hearing before the commissioner, and the department requested the superior court to remand the case for correction thereof and for additional testimony concerning claimant's condition. The superior court passed its order remanding the claim. Another examination of the claimant employee was made by Physician C. W. Roberts for the department, in which he stated that the disability of the employee was from 10 to 20 per cent. on a general earning basis, and that, in his opinion, claimant had an apparent neurotic condition not dependent on any physical disability. On May 10, 1922, Commissioner Whitaker made this award: "Under all the facts and conditions of the case it is ordered that the Fisher Body Company, employer, and/or the Royal Indemnity Company, insurance carrier, resume payment of compensation as of April 30, 1931, and continue the same until July 16, 1931, at $15 per week, and then to discontinue payment of compensation until claimant accepts the employment tendered to him." The reason for this award was that, on the hearing, it developed that the employer had on July 16, 1931, offered to put the claimant to work and pay him 70 cents per hour, which the claimant refused to accept, and that the employer still agreed to reemploy the claimant on this basis, and to permit him to work the best he could and pay him such sum per hour. This award was appealed by the claimant to the full department, where it was approved and affirmed. Thereupon, Bentley and Bentley, lawyers, as counsel for the claimant, appealed from this award and affirmance to the superior court. In August of that year the claimant withdrew such appeal, stating that he had not given said counsel permission to appeal from the award which gave to him $90, and thereupon he requested the Department of Industrial Relations to fix the fees of said attorneys for services to date, and to dismiss said appeal. The department dismissed said appeal, and awarded the attorneys $25 and the claimant $65. Within two days it was discovered that this award was incorrect, in that there was $165 due the claimant instead of $90, and thereupon the commission passed an order vacating the above award and award the attorneys a fee of $40 and the claimant the sum of $125, and dismissing said appeal, as requested. The claimant returned to work with Fisher Body Company in compliance with the above award; his employment being to do light work. The claimant made another request for a hearing on the ground of a change in his condition, and the matter was set down for a hearing on September 8, 1932, and finally heard on September 13, 1932. On this hearing a physician testified for the claimant that he had examined and treated him off and on, at intervals, from shortly after the injury in January, and had examined him just the day before the hearing, and that he found the claimant's condition to be now worse, and that it was growing worse; that the claimant had to be put in a cast and wear a brace in order to walk, and would have to use crutches in another year. The claimant testified that he returned to work in compliance with the award, and that the employer wanted him to work as the others did, standing upon his feet; that on account of his disability he could not work in that way and could only work sitting down; that the employer did not pay him 70 cents an hour as agreed, but only 50 cents, and then cut that down to about 40 cents; and that he worked from July 12, 1932, until September 13, 1932, the day before the hearing; and that such work seemed to make his condition worse. Before making the award, the claimant was again sent to Dr. Roberts for an examination by him, and the doctor's report stated that he found the claimant's condition unchanged, the same as it was when he had examined him some five or six months before. Thereupon, on April 14, 1933, Commissioner Whitaker made an award in which he reviewed the history of this case, the evidence, and prior awards, and stated that the failure of the employer "to comply with the spirit of the department's award, tends to produce a feeling that they do not show the proper attitude toward claimant and his condition. Taking into consideration claimant's ability to earn $7 and $8 per day prior to his accident, the fact that, even under trying conditions, he at least made an effort to work from July 12, to September 13, in an effort to comply with the award of this department and at the same time, recognizing the failure of the claimant to establish any permanent deformity or definable injury, it would seem that the fair and just thing to do is to give the claimant the benefit of the doubt and find that he is 50 per cent. disabled for competitive labor. His ability to remain on the job, although handicapped, from July

12, to September 13, would indicate his capacity for some labor. * * * The director finds * * * that this claimant has a 50 per cent. disability as a result of his accident sustained while in the employ of Fisher Body Company and is entitled to compensation beginning as of September

13, 1932, at the rate of $7.50 a week, which is 50 per cent. of his compensation payments for total disability, and to continue during disability, subject to the limits of section 31 of the act; and an award of compensation is therefore made in favor of * * * claimant in addition to that already paid,...