Howard v. Superior Contractors, 71648

• Decision Date: 16 July 1986
• Docket Number: No. 71648,71648
• Citation: 180 Ga.App. 68,348 S.E.2d 563
• Parties: HOWARD v. SUPERIOR CONTRACTORS.
• Court: Georgia Court of Appeals

Page 563

348 S.E.2d 563

180 Ga.App. 68

HOWARD v. SUPERIOR CONTRACTORS.

No. 71648.

Court of Appeals of Georgia.

July 16, 1986.

Rehearing Denied July 31, 1986.

Certiorari Denied Sept. 2, 1986.

Meg Tysinger Hartin, Marietta, for appellant.

Richard G. Farnsworth, John Williams, Marietta, for appellee.

BEASLEY, Judge.

On December 19, 1982, Howard, an employee of Superior Contractors & Associates, was injured by a 225-foot fall from a tower at Three Mile Island. He received treatment and workers' compensation benefits and returned to work January 17, 1983. That summer he left Superior and took a job in Florida with Action Electric. He began experiencing emotional problems and consulted a mental health clinic in September. Howard testified that he could not cope "with life ... with normal job pressures." (Besides his new job, he also entered his first marriage.) He related he had a "breakdown" and his parents drove down from Cobb County, picked him up and took him to Ridgeview Institute in Cobb where he was treated by a psychiatrist, Dr. Ehik. He was placed on Sinequan, an antidepressant and anxiety medication. Subsequently Howard continued to see Dr. Ehik on a weekly and biweekly basis. In June 1984 Howard filed for a change in condition. The medical report of Dr. Ehik which was received in evidence stated that Howard displayed "a great deal of hostility and depression"; that he has "a considerable amount of anxiety"; and that he "represents a post traumatic stress syndrome manifested by depression and anxiety." The report stated that while in the hospital Howard "continued to be under a great deal of stress."

After a hearing, the ALJ entered an award finding for Superior. The decision was based upon ITT Continental Baking Co. v. Comes, 165 Ga.App. 598, 302 S.E.2d 137 (1983), which found regarding a claimant who had originally had three fingers severed and thereafter suffered from "mild depression and a great deal of anxiety" that these conditions, while "debilitating, neither can reasonably be characterized as a mental or nervous disorder. They were instead entirely natural, albeit unfortunate, responses to any type of severe physical injury."

Howard appealed to the full board and requested remand to hear additional testimony under Board Rule 103(c). A few days before the hearing, Howard filed an affidavit by Dr. Ehik which greatly expanded and detailed the post traumatic stress syndrome.

The board by a 2-to-1 vote found for Howard. Among the substituted findings were: "(b) The only diagnosis is post traumatic stress syndrome, which is different from depression and anxiety, even though in this claim the traumatic stress syndrome is manifested by same. (c) Human experience indicates that a fall of two hundred feet would cause problems, manifested by a traumatic stress syndrome, which is evidence of residuals sustained on December 19, 1982."

Superior appealed to the superior court which reversed the board. The court found that Dr. Ehik's affidavit was not timely submitted and thus could not be considered by the board or the court, citing Board Rule 103(b)(2). The court then found: "Notwithstanding the label of post traumatic stress syndrome, there is simply nothing in the record before this Court to indicate that the depression and anxiety experienced by Mr. Howard were any different than the symptoms manifested by the claimant in Comes. These symptoms are the regrettable but natural responses to severe physical injury and such are not compensable. There is no evidence in the record to indicate the post traumatic syndrome is the distinct mental or nervous disorder of the type found compensable in Baggett ¹ and Summerous ². In fact, Dr. Ehik in his letter of November 22, 1983 states that Howard shows no overt thought disorders and was not overtly psychotic. A claim cannot be moved from the non-compensable category to the compensable by merely attaching a label to a claimant's condition."

1. We granted discretionary review to consider the correctness of the ruling refusing to consider the psychiatrist's affidavit and whether the case fell within the rule of Comes, supra 165 Ga.App. p. 598, 302 S.E.2d 137. On appeal Howard no longer relies upon his enumeration of error regarding the admissibility of the affidavit. Thus, we need only consider whether Comes, supra, controls the decision here. As Dr. Ehik described it, Howard "represents a post traumatic stress syndrome manifested by depression and anxiety." This disorder or syndrome involves re-experiencing a traumatic event such as rape or war. Longman's Dictionary of Psychology & Psychiatry (1984). Thus, it is causally related to a prior injury or trauma.

In Comes, supra, this court merely considered the two terms, mild depression and anxiety as not constituting a mental or nervous disorder having compensable significance. Here the facts reveal an identifiable mental condition characterized and accompanied by depression and anxiety. The term "depression" ranges over a wide spectrum of human behavior from a relatively mild condition to a serious mental disorder, accompanied by suicidal propensities, described as psychotic depression. 15 Encyclopaedia Brittanica 176 (1974). We therefore conclude that this case is not within the bounds of Comes.

Our courts have recognized the compensability of emotional trauma resulting from an initial physical injury. Sawyer v. Pacific Indem. Co., 141 Ga.App. 298, 301, 233 S.E.2d 227 (1977). Compare Williams v. ARA Environmental Svcs., 175 Ga.App. 661, 662, 334 S.E.2d 192 (1985). Of crucial significance is that the psychic trauma must arise naturally and unavoidably from some discernable physical occurrence. Hanson Buick v. Chatham, 163 Ga.App. 127, 131, 292 S.E.2d 428 (1982).

Here Dr. Ehik's diagnosis in evidence did not establish the post traumatic stress syndrome arose from Howard's fall at Three Mile Island. However, Howard testified that he had problems reliving the fall; that after the fall he experienced difficulty in coping and an increase in sicknesses. A factfinder could consider this testimony as demonstrating that the post traumatic stress syndrome resulted from the fall. This evidence may be described as somewhat tenuous; nevertheless, this court applies the any evidence rule and we cannot say that there was no evidence to sustain the board's findings.

The trial court erred in reversing the board's determination of compensability.

2. The board's award of weekly benefits apparently for temporary total disability is unsustained by any evidence and thus erroneous. Indeed, the only evidence on the question was Howard's testimony that he is working regularly now. OCGA § 34-9-261.

3. The award of medical expenses is also not supported by competent evidence. OCGA § 34-9-201 permits a claimant to select his own physician (not on the "panel of physicians") due to an emergency but only while the emergency conditions exist or where there is no listed "panel of physicians" provided by an employer. While an emergency may have existed initially, there is no evidence that such status persisted beyond the original week of...