Miller v. Argonaut Ins. Co.

• Decision Date: 09 October 1975
• Docket Number: No. 51101,No. 2,51101,2
• Citation: 220 S.E.2d 89,136 Ga.App. 101
• Parties: Betty Sue MILLER v. ARGONAUT INSURANCE COMPANY et al
• Court: Georgia Court of Appeals

Page 89

220 S.E.2d 89

136 Ga.App. 101

Betty Sue MILLER v. ARGONAUT INSURANCE COMPANY et al.

No. 51101.

Court of Appeals of Georgia, Division No. 2.

Oct. 9, 1975.

Betty Sue Miller, pro se; Brown, Harriss, Hartman & Ruskaup, Don L. Hartman, Rossville, for appellant.

Savell, Williams, Cox & Angel, Lawson A. Cox, II, J. Caleb Clarke, III, Atlanta, for appellees.

CLARK, Judge.

Three questions are presented in this workmen's compensation appeal: (1) Did the deputy director err in concluding as an ultimate finding of fact that the employee had not shown that she had undergone a change of condition? (2) Did the deputy director err in failing to award mileage expenses for the employee's trips between her home and her doctor? (3) Was there an abuse of discretion by the deputy director in receiving into evidence and considering a medical deposition after expiration of the allotted time? On the basis of the instant record we answer all three questions in the negative.

1. Claimant was employed as a mender and inspector by Coronet Industries, Inc., a carpet mill. Following compensable chest, wrist, neck and back injuries, claimant entered an agreement with employer and carrier for the payment of compensation. Thereafter, on July 24, 1974, claimant returned to light work (inspecting only) at the mill inasmuch as she was unable to perform her previous two-phase duties which had included both mending and inspecting as one of a two-employee team. Thereupon the parties executed a supplemental agreement acknowledging claimant had returned to work at her former weekly wage and that liability for temporary total disability ceased at that time.

On September 13, 1974, claimant's employment was terminated due to depressed economic conditions in the carpet mill industry. Claimant unsuccessfully sought employment with other mills. Thereafter claimant was offered a job in a package store; however, she did not accept this opportunity because she claimed her work-connected injuries prevented her from lifting cases of beer. (R. 66, 68, 69.)

In 1968, Code § 114-709 was rewritten to provide that, prior court decisions notwithstanding, 'change in condition' as used in relation to those sections fixing compensation for total and partial disability 'shall mean solely an economic change in condition occasioned by the employee's return or ability to return to work for the same or any other employer; or inability to work or continue to work for same or any other employer, which inability is proximately caused by the accidental injury.' Ga.L.1968, pp. 3, 7. Thus, even though a claimant's physical condition may have remained unchanged, a change in his earning capacity predicated upon the accidental injury is considered a change in condition. See generally, Larson, Workmen's Compensation Law, § 81.31, p. 336; St. Paul Fire & Marine Ins. Co. v. Harris, 118 Ga.App. 352, 163 S.E.2d 833.

In four cases since the 1968 revision we have considered the impact of this changed statutory test. They are Jenkins Enterprises, Inc. v. Williams, 122 Ga.App. 840, 178 S.E.2d 926; Morris v. Liberty Mutual Ins. Co., 122 Ga.App. 436, 177 S.E.2d 174; Roland v. Cotton States Mutual Ins. Co., 133 Ga.App. 442, 211 SE.2d 395 and Armstrong v. Allstate Ins. Co., 135 Ga.App. 278, 279(2), 217 S.E.2d 486. Those cases indicate that in moving for a change of condition a claimant must show (1) that the condition has changed for the worse, (2) that because of this change claimant is unable to work for any employer, (3) that because of inability to work the employee has either a total or partial loss of income, and (4) that the inability to work was proximately caused by the injury.

Although the claimant testified that her inability to lift beer cases, prevented her employment at the package shop and that this was the result of her carpet mill injuries, there was medical evidence to the contrary. The deputy director ruled adversely to the employee's contentions. Under the 'any evidence' rule, which is binding upon both the superior and appellate courts, we cannot disturb the award. Code Ann. § 114-710; Wilson v. Aragon Mills, 110 Ga.App. 392, 394, 138 S.E.2d 596; Carey v. Travelers Ins. Co., 133 Ga.App. 657, 658, 212 S.E.2d 13.

2. Claimant complains that the deputy director considered Dr. W. Carl Dyer's deposition even though this documentary evidence was filed, without the approval of the full board, more than 30 days following...