Holcombe v. Fireman's Fund Ins. Co.

• Decision Date: 03 October 1960
• Docket Number: No. 1,No. 38475,38475,1
• Citation: 102 Ga.App. 587,116 S.E.2d 891
• Parties: C. J. HOLCOMBE v. FIREMAN'S FUND INSURANCE COMPANY et al
• Court: Georgia Court of Appeals

Page 891

116 S.E.2d 891

102 Ga.App. 587

C. J. HOLCOMBE v. FIREMAN'S FUND INSURANCE COMPANY et al.

No. 38475.

Court of Appeals of Georgia, Division No. 1.

Oct. 3, 1960.

Rehearing Denied Oct. 18, 1960.

Syllabus by the Court.

Under the Workmen's Compensation Act, where an employee has sustained complete or partial amputations or total or partial loss of use of one or more fingers plus a partial amputation and/or loss of use of the thumb, the compensation schedule amounts for the loss or loss of use of these members in Code § 114-406, subject to the over-all limitations of that section, must be awarded. Therefore, an award in the physician's estimate of 70% loss of use of the hand as a whole is not authorized.

The plaintiff was injured by an accident arising out of and in the course of his employment, resulting in temporary total disability and permanent injury to his right hand. An agreement as to compensation was entered into between the plaintiff and the employer and insurer. This agreement was approved by the State Board of Workmen's Compensation on June 10, 1959. A request for hearing was made by the plaintiff on October 15, 1959 for a change in condition. The hearing was held before a deputy director. At this hearing the respective parties agreed that in lieu of other medical evidence, Form 20a signed by a named doctor and received by the board on September 16, 1959, together with Form 18, both front and back, also signed by the doctor, should become a part of the record in this claim before the State Board of Workmen's Compensation, and these records thereby became the medical testimony in this case.

As a result of this hearing the deputy director made the following findings of fact which are relevant to the issue raised by this appeal, regarding the permanent partial industrial handicap which the claimant sustained by the injury to his right hand:

'That the ring and middle finger were gone; the index finger was about half gone; the thumb had a portion of the end gone, but the fingernail base was still there, and a short fingernail; that the little finger was attached at a grotesque angle, giving it a claw-like, waxy appearance, and it could readily be seen the finger was of no earthly use. That upon questioning by the undersigned, claimant stated he could use the thumb and index finger to pick up larger objects, but could not pick up small objects.

'I find further, by agreement, the reports of Dr. [B], were introduced, and constituted the sole medical offered. That this doctor rated claimant as having 70% permanent loss of use of the left hand, with recommendations that the little finger be amputated if it proved a detriment, and for cosmetic purposes, and that a further repair of the hand might prove beneficial in the future. That the doctor's rating appears to be in line, since claimant still has some function of the hand left.

'I therefore find claimant is entitled to compensation at the rate of $30 per week for 105 weeks, for 70% permanent loss of use of the right hand * * *'

The claimant appealed this award to the Superior Court of Fulton County, Georgia, which affirmed the award, to which the plaintiff excepted.

Garland Head, Head & Head, Atlanta, for plaintiff in error.

Smith, Field, Ringel, Martin & Carr, Palmer H. Ansley, Charles L. Drew, Atlanta, for defendant in error.

BELL, Judge.

It is a basic principle, under the Workmen's Compensation Act, that if there is any competent evidence in the record to support the findings of fact of the State Board of Workmen's Compensation in matters properly before it, the findings are conclusive on the courts on appeal. Code § 114-710. Fidelity & Casualty Co. of New York v. Scott, 215 Ga. 491, 111 S.E.2d 223. However, under Code § 114-710, while the findings of fact by the State Board of Workmen's Compensation are conclusive and binding if supported by any competent evidence, the courts are authorized to set aside the award in five enumerated situations, the fifth of which, and the relevant one here, is where the order or decree is contrary to law.

The question for solution here is whether the award determined by the deputy director, which granted the plaintiff 70% permanent disability of the right hand, is contrary to the provisions of Code § 114-406. This section expressly directs the compensation which shall be made for certain enumerated permanent partial industrial handicaps, and explicitly states that: 'In the cases included by the following schedule the permanent partial industrial handicap in each case shall be compensated by payments for the period specified, and the compensation so paid for such handicap shall be as specified therein and shall be in lieu of all other compensation for the permanent partial handicap.' Under the schedule which is a part of this code section, awards must be made for the loss of the particular fingers which the medical evidence proves. While the doctor's report states that the...