Logan v. St. Joseph Hosp.

• Decision Date: 16 July 1997
• Docket Number: A97A1109,Nos. A97A0862,s. A97A0862
• Citation: Logan v. St. Joseph Hosp., 490 S.E.2d 483, 227 Ga.App. 853 (Ga. App. 1997)
• Parties: , 97 FCDR 2897 LOGAN v. ST. JOSEPH HOSPITAL et al. ST. JOSEPH HOSPITAL et al. v. LOGAN
• Court: Georgia Court of Appeals

Page 483

490 S.E.2d 483

227 Ga.App. 853, 97 FCDR 2897

LOGAN v. ST. JOSEPH HOSPITAL et al.

ST. JOSEPH HOSPITAL et al. v. LOGAN

Nos. A97A0862, A97A1109.

Court of Appeals of Georgia.

July 16, 1997.

Reconsideration Denied July 31, 1997.

Victor Hawk, Augusta, for appellant.

Hull, Towill, Norman & Barrett, Neal W. Dickert, Floyd M. Taylor, Nancy S. Gentry, Augusta, for appellees.

BEASLEY, Judge.

In Case No. A97A0862, Priscilla Logan appeals from the trial court's order reversing a State Board of Workers' Compensation's decision that she was entitled to psychological treatment as workers' compensation. In Case No. A97A1109, St. Joseph Hospital and its agent Alexsis, Inc. (collectively the "hospital") appeal the trial court's denial of their motion to dismiss Logan's appeal. Refusal to dismiss the appeal was appropriate, and Logan's appeal has merit.

Case No. A97A1109

1. The employer hospital's ground for dismissal of its employee Logan's appeal was that Logan delayed 91 days in paying the costs for the record. Based on the evidence and arguments received at a hearing, the trial court found that Logan was likely to be destitute and living with various family members and therefore difficult to contact despite her counsel's repeated efforts. Her counsel was required to leave messages with various relatives in order to communicate with her. The court also accepted counsel's contention that Logan suffered from a psychological condition (evidence of which is contained in the testimony to the ALJ set forth below) that precluded her from understanding the nature of the proceedings and that in fact had led her to believe that her appeal had already been won. These circumstances led the trial court to find that the delay in paying the costs was not unreasonable nor inexcusable. On appeal, the hospital claims the trial court abused its discretion in making these findings.

OCGA § 5-6-48(c) provides that "the trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence." " ' "The cause for delay in the processing of the appeal is a fact issue for determination in the trial court," and in making that determination the trial court exercises a broad legal discretion which is subject to appellate scrutiny only for abuse. [Cits.]' " Miller v. Ingles Market, 214 Ga.App. 817, 818, 449 S.E.2d 166 (1994).

The hospital disputes the findings of the trial court and argues that "Logan presented no response or affidavit in opposition to [the hospital's] motion [and][t]here has been no evidence proffered by appellee Logan to explain the delay in payment of costs." The record before the ALJ contains extensive testimony as to Logan's psychological condition, and the court heard other evidence and arguments of Logan at a hearing which was not transcribed. " 'In the absence of a transcript, we must assume that the trial court's findings were supported by the evidence.' [Cit.]" Intl. Indem. Co. v. Saia Motor Freight Line, 223 Ga.App. 544, 547(3), 478 S.E.2d 776 (1996). Because the burden is on the hospital to show error from the record, the hospital's argument fails. See Studard v. Dept. of Transp., 219 Ga.App. 643, 644(1), 466 S.E.2d 236 (1995).

Leonard v. Ognio, 201 Ga.App. 260, 410 S.E.2d 814 (1991), which reversed the trial court for abuse of discretion and dismissed the appeal, is distinguishable. Leonard cited the rule that a delay in paying costs in excess of 30 days is prima facie unreasonable and inexcusable. The 43-day delay in that case required a dismissal because of "the absence of any evidence as to why the delay occurred." Id. at 262, 410 S.E.2d 814. The only evidence submitted by the appellants in opposition to the motion to dismiss the appeal in Leonard was the affidavit of their attorney that he had forwarded the bill of costs to appellants with a request that a check be forwarded to him, and the affidavit of one appellant stating he had not received the letter and bill. Noting that appellants' counsel had knowledge of the circumstances necessary to prevent an unreasonable and inexcusable delay, counsel's single failed attempt to communicate with his clients was insufficient to explain the delay.

Priscilla Logan's case is substantially different in at least four respects. First, the trial court conducted an evidentiary hearing to determine whether Logan could rebut the prima facie presumption of unreasonableness and inexcusability. As explained earlier, there is no transcript, so we must assume the trial court's findings of reasonableness and excusability were supported by the evidence. Intl. Indem. Co., supra; Getz Exterminators v. Walsh, 124 Ga.App. 402, 184 S.E.2d 358 (1971) (absent a transcript of hearing, appellate court "cannot say that the trial judge abused his wide discretion" in finding that failure to respond timely to discovery was due to providential cause). In Leonard the trial court considered only two written affidavits. " 'If a motion is decided on the basis of the written submissions, the reviewing court is in an equal position with the trial court to determine the facts and therefore examines the facts under a non-deferential standard.' [Cit.]" Cobb County v. Jones Group P.L.C., 218 Ga.App. 149, 150(1), 460 S.E.2d 516 (1995). Thus, in Leonard, we considered the affidavits anew in determining reasonableness and excuse.

Second, Logan's condition, which included both financial and mental disability, helped explain counsel's difficulty in contacting her and in accomplishing in a prompt fashion the payment of record costs. There were no such disabilities in Leonard. Third, counsel in Leonard sent a single letter to the clients with no follow-up. Fourth, there were no circumstances in Leonard regarding the appellants' personal condition and circumstances which may have confused them as to the status of the appeal.

In view of the evidence underlying the trial court's fact findings, the trial court did not err as a matter of law in finding a sufficient basis for overcoming the rebuttable presumption of unreasonableness and inexcusability where more than 30 days had elapsed before payment of costs. It was not an abuse of discretion to weigh the equities of dismissing versus proceeding in light of the facts and to give justice larger place. See ITT Terryphone Corp. v. Modems Plus, 171 Ga.App. 710, 711(1), 320 S.E.2d 784 (1984); Compher v. Ga. Waste Systems, 155 Ga.App. 819, 820-821(1), 273 S.E.2d 200 (1980).

Case No. A97A0862

2. Logan enumerates as error the superior court's reversal of the Board's fact findings in her favor. She argues that had the superior court applied the "any evidence" standard, it would have affirmed the Board's ruling. OCGA § 34-9-105(c)(4).

In May 1990, Logan, an employee of the hospital, injured her neck while lifting a trash bag. Dr. Reynolds, a neurosurgeon, has treated her since that time for a cervical or muscle strain. The parties stipulated that the injury was compensable under workers' compensation and the hospital has paid and continues to pay for the medical bills of Dr. Reynolds. In 1992 Logan's income benefits ceased based on a finding of the ALJ and of the Board that she could return to work.

In March 1992 Dr. Adams, a licensed psychologist, evaluated Logan in connection with a disability determination by the Social Security Administration. Dr. Adams diagnosed Logan as suffering from chronic pain syndrome and major or severe depression. He recommended that she receive psychotherapeutic treatment, to which Dr. Reynolds later agreed. Because Dr. Reynolds believed there was no biological basis for Logan's continued pain from the neck injury, he thought that Logan was suffering from a personality disorder which he termed a hysterical reaction to the neck injury and which he believed could be treated by Dr. Adams. Accordingly, Dr. Reynolds referred Logan to Dr. Adams for psychological evaluation and treatment. The hospital refused to pay Dr. Adams' treatment. Six months later Dr. Reynolds renewed his request that Dr. Adams treat Logan "with appropriate psychotherapy modalities in an effort to combat her anxiety/depressive reactions which are associated with chronic neck pain." When the hospital again refused to pay, Logan obtained a hearing before an ALJ, who heard Logan's testimony live and received into evidence the depositions of Drs. Reynolds and Adams.

In July 1994, the ALJ denied Logan's request for treatment, holding that "the weight of the evidence is not sufficient to establish that any treatment to be provided by Dr. John Adams would be related to the employee's prior job injury, nor would it be reasonable and necessary to effect a cure, give relief and return this employee to suitable employment." He found that "Dr. Reynolds has been unable to find anything objective to confirm the existence of constant subjective pain; that Dr. Reynolds feels that she should return to some suitable work which she has not; that other doctors consulted by Dr. Reynolds have also been unable to find anything physical that would confirm the employee's complaints of pain; that the employee saw Dr. Adams on four occasions earlier and testified that he did not help her deal with her pain and in February 1994 she did not think that she needed to return to see Dr. Adams; that Dr. Adams has no definable plan of treatment for the employee and is not sure of her medical diagnosis; that Dr. Adams did not consider the MMPI performed at [the Medical College of Georgia] which shows an exaggeration of symptoms by the employee."

Logan appealed to the appellate division of the State Board of Workers' Compensation, which considered the evidence de novo. OCGA § 34-9-103(a) (former version). In December 1994 the appellate division issued a decision...