National Union Fire Ins. Co. v. Johnston
| Decision Date | 14 July 1970 |
| Docket Number | No. 45385,No. 2,45385,2 |
| Citation | 177 S.E.2d 125,122 Ga.App. 332 |
| Parties | NATIONAL UNION FIRE INSURANCE COMPANY et al. v. Herbert G. JOHNSTON |
| Court | Georgia Court of Appeals |
Swift, Currie, McGhee & Hiers, Charles L. Drew, Robert L. Cowles, Atlanta, for appellants.
George B. Rushing, Augusta, for appellee.
Syllabus Opinion by the Court
1. It is well settled that a review under Code § 114-708, as amended, by the State Board of Workmen's Compensation of the award of a single director is a de novo investigation. Upon review the full board may remand the case to a single director for the taking of additional evidence. By a rule of long standing, now Rule 22, the board purports to limit its own powers in hearing new evidence to the standards for newly discovered evidence as a basis for a new trial in the courts of this State. Generally this court, in reviewing the action of the board, the usual case being a refusal to hear additional evidence, has limited itself to a consideration of whether there was a manifest abuse of discretion. In an early case of this nature the court suggested that no case would be reversed for granting an application to retake testimony, including newly discovered evidence. Southeastern Express Company v. Edmondson, 30 Ga.App. 697, 705, 119 S.E. 39. Later, upon holding there was no abuse of discretion in hearing additional testimony, the court expressed the view that the rule (then Rule 26) could be enforced or relaxed without interference by the courts. American Mutual Liability Insurance Company v. Hardy, 36 Ga.App. 487, 491, 137 S.E. 113. For later cases in which this court reviewed the discretion, and found no abuse, either in allowing or refusing additional evidence, see New Amsterdam Casualty Company v. Thompson, 100 Ga.App. 677(4), 112 S.E.2d 273; Adams v. Utica Mutual Insurance Company, 88 Ga.App. 386, 390, 76 S.E.2d 709; Peters v. Liberty Mutual Insurance Company, 113 Ga.App. 41, 147 S.E.2d 26; Continental Insurance Company v. McDaniel, 118 Ga.App. 344, 163 S.E.2d 923; Cameron v. American Can Company, 120 Ga.App. 236, 170 S.E.2d 267.
In the present case the claimant, who did not employ counsel until after the date of the first hearing, failed to testify for the record or otherwise establish at this hearing that he had made a timely report of an accident to his employer, and the hearing director, after holding the record open for additional evidence, denied an award for this reason. It was thereafter made to appear to the full board that evidence could be adduced to authorize a finding that he had made a timely report. Under these circumstances the full board did not abuse its discretion in remanding the case for the taking of additional evidence.
2. The evidence considered by the full board supports the award of compensation and the judge of the superior court did not err in affirming the award in this respect.
3. In determining when the statute of limitation began to run, the board fixed the date as the date on which the disability commenced, referring to an unnamed recent Court of Appeals decision fixing the date for the statute of limitation as the date when disability begins where an accident has occurred and...
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