Ideal Mut. Ins. Co. v. Ray

• Citation: 88 S.E.2d 428,92 Ga.App. 273
• Decision Date: 27 June 1955
• Docket Number: No. 2,No. 35684,35684,2
• Parties: IDEAL MUTUAL INSURANCE COMPANY et al. v. C. P. RAY
• Court: United States Court of Appeals (Georgia)

Page 428

88 S.E.2d 428

92 Ga.App. 273

IDEAL MUTUAL INSURANCE COMPANY et al. v. C. P. RAY.

No. 35684.

Court of Appeals of Georgia, Division No. 2.

June 27, 1955.

Syllabus by the Court

1. An injury arising out of and in the course of the employment, under the Workmen's Compensation Law, may be established by circumstantial as well as by direct evidence; and if thus shown by a preponderance of the evidence to the exclusion of every other reasonable manner in which it could have occurred within the period of the statute of limitations, and the claimant otherwise qualifies he is entitled to compensation, whether he knew when the accident occurred to him or not. The law requires such an accident but does not require knowledge on the part of the claimant.

2. An appeal from the award of the single director to the full board is a de novo proceeding. The full board may adopt the findings of the single director or may make other findings based on the same evidence.

This is a workmen's compensation case wherein the single director found in favor of the claimant, and on appeal the full board, without making an independent finding of fact, reversed this award for the stated reason that there was not sufficient evidence to support it. The claimant then appealed to the Judge of the Superior Court of DeKalb County, who reversed the full board for the stated reason that the evidence demanded a finding in favor of the claimant.

The evidence discloses without dispute that the claimant had been employed by Kraft Foods Company for about 18 months, during which time he was engaged for 8 hours per day in lifting heavy boxes of cheese onto a table, averaging about 10,000 pounds per hour; that while thus engaged, on or about December 14, 1953, the claimant noticed a pain in his leg, slight at first but growing progressively worse until on December 19 he went to a doctor, who diagnosed the complaint as a cold in the leg and prescribed rest. The claimant then took his vacation but the pain continued to grow worse until on December 31 he went back to the doctor and X-rays were made, from which a ruptured invertebral disk was suspected. On January 4 he returned to work. On this occasion he informed his supervisor of his condition and advised him that he would be unable to do heavy lifting. He continued to work, however, until January 30, 1954, on which occasion the ruptured disk diagnosis was confirmed and he was hospitalized under traction. His condition continues to be painful and he can do no work involving lifting. He has been unable to find any work he can do although he is somewhat improved. He does not remember any particular injury or the exact time when the pain started. He was asked, 'Are you positive that you have not sustained any accident on the job around that time or sprained yourself in any way while you were lifting?' to which he answered, 'Not as I know of, nowhere.' Doctors who examined and treated him were of the opinion that the lifting caused the ruptured disk, and one of them testified: 'Sometimes they are immediate with one lift and sometimes I think the thing can gradually work out over a period of time with nothing you can point to, just like Mr. Ray says he has no particular injury that caused it and I think he is correct in what he says, but I think his lifting could be medically the thing that actually caused it.' Another doctor testified that ruptured disks are generally traumatic in origin, and that it was his opinion that continuous lifting from 40 to 90-pound packages from the floor to a raised platform for 8-hour periods of time would contribute to the rupturing of the disk. On cross-examination he stated that he did not know that such work caused the disk injury in this particular case.

Smith, Field, Doremus & Ringel, Richard D. Carr, Atlanta, for plaintiffs in error.

Stonewall H. Dyer, Atlanta, for defendant in error.

TOWNSEND, Judge.

1. The undisputed evidence here showed that this claimant, an able bodied man capable of lifting packages of cheese from the floor onto a table approximately 4 feet in height continuously for 8 hour periods, amounting to approximately 10,000 pounds per hour for a period of 18 months prior to his disability, suffered a pain in the leg which is a symptom of a ruptured disk. If the lifting caused it, then the lifting which caused the disk to rupture was his accident, Lumbermen's Mutual Casualty Co. v. Griggs, 190 Ga. 277, 289, 9 S.E.2d 84, and this is true whether he knew when it happened to him or not. An injury which arises out of and in the course of the employment, and which is not the result of the claimant's wilful misconduct or some other stated exception, is an injury 'by accident' under the terms of the act, although its immediate cause ...