Insurance Co. of North America v. Nix
| Decision Date | 22 February 1977 |
| Docket Number | No. 3,No. 53216,53216,3 |
| Citation | 141 Ga.App. 342,233 S.E.2d 468 |
| Parties | INSURANCE COMPANY OF NORTH AMERICA et al. v. L. W. NIX, Sr |
| Court | Georgia Court of Appeals |
Thomas B. Monroe, Jr., Atlanta, for appellants.
Hirsch, Beil & Partin, Jacob Beil, Columbus, for appellee.
1. In this workmen's compensation case, the superior court did not err in failing to remand the appeal to the full board for the introduction of new evidence by the employer. It does not appear in the record before us that any motion to that effect was made.
Furthermore, the record does not reveal that the employer's application to the board for the introduction of the new evidence (now said to be his own testimony) was supported by the showing required by Rule 708 of the board, viz.,
Even if it could be shown that this evidence "likely would have produced a different result," the sole excuse offered for not having produced the employer as his own witness at the change-of-condition hearing requested by the claimant was "a last-minute, unexpected business matter." "(I)t is up to the employer to present his evidence at the hearing, not to offer it several months later." Waters v. Travelers Ins. Co., 129 Ga.App. 761, 762(1), 201 S.E.2d 176, 178 (1973). Moreover, in spite of the fact that the administrative law judge left the record open for 90 additional days, the appellants did not, during this period, attempt to introduce the deposition of any witness, including that of the unnamed witness they had mentioned as being absent from the hearing. The appellants thus did not exercise reasonable diligence to secure evidence "not known to the party at the time of the original hearing."
2. There was adduced at the change-of-condition hearing, evidence that the claimant, who was receiving workmen's compensation for a back injury, convinced his physician to allow him to return to work so as not to jeopardize his job, in spite of continued pain and difficulties preventing his performing...
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