Nationwide Mut. Ins. Co. v. Porter

• Decision Date: 04 September 1979
• Docket Number: No. 57108,57108
• Citation: Nationwide Mut. Ins. Co. v. Porter, 258 S.E.2d 135, 150 Ga.App. 513 (Ga. App. 1979)
• Parties: NATIONWIDE MUTUAL INSURANCE COMPANY v. PORTER.
• Court: Georgia Court of Appeals

Page 135

258 S.E.2d 135

150 Ga.App. 513

NATIONWIDE MUTUAL INSURANCE COMPANY v.PORTER.

No. 57108.

Court of Appeals of Georgia.

Argued Jan. 10, 1979.

Decided April 13, 1979.

Rehearing Denied July 3, 1979.

Certiorari Denied Sept. 4, 1979.

Awtrey & Parker, Donald A. Mangerie, Toby B. Prodgers, Marietta, for appellants.

G. Robert Howard, Marietta, for appellee.

DEEN, Chief Judge.

The claimant in this workers' compensation case suffered from a sprained or ruptured vertebral disc which eventually required surgical procedures.The only question in the record is whether the injury was employment-related.The administrative law judge, examining the whole record, found that the injury was not work-related, based, as it appears, on discrepancies in the testimony.The claimant told of an accident at a certain address, but he was not there at the time stated; he did not mention any accident to either examining physician; the length of time he had been suffering seemed contradictory; certain health insurance forms stated that the claim did not arise out of the employment, and the supervisor preparing them stated she was not informed of any accident.The health insurance forms were admitted over objection, the administrative judge specifying that he was not considering them as medical evidence, but found them admissible and relevant only to the question of the amount of credit to be given the plaintiff's testimony.

On appeal, the full board remanded for the taking of further testimony and, after considering it, affirmed the award as written.The superior court judge to whom it was then appealed held that the statements in the forms were hearsay and reversed the case with the holding that a decision should be made without any consideration of their contents.

A reading of the entire transcript in connection with the various awards and opinions makes the following clear:

1.(a) The additional evidence offered after the remand by the full board added nothing of importance to the transcript of evidence.

(b) An additional consideration of the record after ruling out the health insurance claim forms would add nothing because the claimant's supervisor, who filled out the forms based on what the claimant and/or his wife told her testified positively on two occasions that when the claimant first recounted the incident in which he now states his injury was received, he did not indicate that he had suffered a back injury while going over a fence into a customer's yard.

(c) Even if the statement in the forms should not technically have been considered as an admission by the claimant, and even if this could, in view of the other discrepancies noted by the administrative law judge, be itself a sufficient ground for remand, it is clear from the award that other contradictions affected the credibility of the claimant in the judge's opinion and also that, since he relied in part on the intelligence and truthfulness of the supervisor's direct testimony, the deletion of the forms, if prepared by her, would in no way affect his judgment.

2.Where there is legal evidence in the record supporting the findings and award made by the board, the superior court is not authorized to remand the matter for further findings or award.Turner v. Baggett Transportation, 128 Ga.App. 801(3), 198 S.E.2d 412[150 Ga.App. 515](1973), followed inMission Ins. Co. v. Ware, 143 Ga.App. 550(1), 239 S.E.2d 162(1977).Although Code Ann. § 114-707 provides the opportunity for opposing counsel to object to medical reports, it does not provide a new ground of appeal based on the contention that evidence was illegally admitted or excluded, as contended here.Code§ 114-710.The most that the superior court or this court can do is, if it finds a significant misstatement of testimony in the finding of facts which in all likelihood erroneously influenced the award, to remand the case for further consideration.Aetna Ins. Co. v. Jones, 125 Ga.App. 471, 188 S.E.2d 180(1972).In this case, it clearly appears from the award that either the claimant, his wife, or his supervisor filled in blanks stating that this disability was not accident-connected.If the employee did so or if his wife did so at his direction this is an admission against interest.If the supervisor did so, her testimony was that she understood from her conversations with the claimant and his wife that such was the case.And the law judge further stated that he admitted the documents only as bearing on the issue of credibility, with a further indication that he accepted as true the testimony of the supervisor.

It was accordingly error for the superior court to reverse the award of the full board denying compensation.

Judgment reversed.

QUILLIAN, P. J., and SHULMAN, BIRDSONG and UNDERWOOD, JJ., concur.

McMURRAY, P. J., and SMITH, BANKE and CARLEY, JJ., dissent.

McMURRAY, Presiding Judge, dissenting.

On or about November 4, 1976, the claimant in this workers' compensation case was employed both on the inside (a desk job) and outside of the employer's place of business (collection of delinquent accounts).While on a routine call to a customer with reference to electrical service at a dwelling house, claimant jumped a fence and fell flat on his back, and as he lay there a "Doberman pinscher was licking him in the face."He reported this fact to his supervisor, however she(supervisor) contends he did not claim he was injured.She remembered he did relate an incident involving a Doberman pinscher.He contends he reported at that time that he injured his back.This fact is also sustained by a fellow employee (testifying at the second hearing) who testified that he was present on or about November 4, 1976, in the office with the supervisor and that this statement was made by the claimant in a conversation he overheard between the supervisor and the claimant.Of course, this information is not denied by the employer/insurer, but merely that it was not a report of injury.

On or about the following 12th or 13th of November, 1976, after experiencing pain in his back he obtained permission to visit a doctor for treatment.Notice of visits to the doctor were well remembered by the supervisor, although the exact date during the month of November was not remembered.But she contends he still did not report it to her as an accident resulting in injury to his back.However, she was well aware that thereafter his back was operated on and he was in the hospital the day before Thanksgiving, also occurring during the month of November of that year.

Based upon the three week history of pain in his back and left leg claimant was treated, hospitalized and operated on for a ruptured disc in his back.SeeFoster v. Continental Cas. Co., 141 Ga.App. 415, 417(5), 233 S.E.2d 492, as to the admission in evidence of his medical reports.

On July 13, 1977, the administrative law judge heard the case as to "whether such medical expense and disability stemmed from an on the job accident or from some other cause."

The claim was then denied because of "conflicts in the evidence and the inconsistencies and contradictions in the testimony on behalf of the claimant."The administrative law judge then set forth the same which involved the exact date he hurt his back, when he was first seen by a doctor, failure to tell the doctor about "the fall on his back" and his wife's (the claimant's) filling out of the insurance form as "a person with intelligence enough to distinguish the difference between a workmen's compensation claim and a health insurance claim," which she signed for her husband in blank.The administrative law judge then held "she is certainly chargeable with notice that a claim for group health insurance benefits does not constitute a claim for...