Reliance Ins. Co. v. Oliver

• Decision Date: 11 March 1968
• Docket Number: No. 2,No. 43141,43141,2
• Citation: 160 S.E.2d 615,117 Ga.App. 466
• Parties: RELIANCE INSURANCE COMPANY et al. v. J. M. OLIVER
• Court: Georgia Court of Appeals

Page 615

160 S.E.2d 615

117 Ga.App. 466

RELIANCE INSURANCE COMPANY et al. v. J. M. OLIVER.

No. 43141.

Court of Appeals of Georgia, Division No. 2.

March 11, 1968.

Rehearing Denied March 26, 1968.

Certiorari Denied May 23, 1968.

Greene, Buckley, DeRieux, Moore & Jones, Burt DeRieux, James A. Eichelberger, Atlanta, for appellants.

Charles O. Baird, Jr., Walter V. Beasley, Atlanta, for appellee.

Syllabus Opinion by the Court

WHITMAN, Judge.

1. This marks the second appearance of this case in this court. It is a workmen's compensation case in which the claimant seeks to recover compensation under the provisions of Code Ann. § 144-406(m) for the loss of the use of his right arm. The nature of the claimant's disability and the events which gave rise to that disability are set out on the former appeal in Reliance Insurance Co. v. Oliver, 114 Ga.App. 639, 152 S.E.2d 423. On that appeal there were two enumerations of error, and in the opinion above cited it was held that the first ground of enumerated error, i.e., that the award in favor of the claimant was not supported by any evidence to show that the claimant sustained an accidental injury which arose out of and in the course of his employment, was not meritorious.

The second enumeration of error on the former appeal was that the judgment of the full board in favor of the claimant was predicated on the alleged erroneous legal theory that the claimant's earning capacity, as a right-handed heavy-duty mechanic, was determinative in rating his disability for an injury compensable under Code Ann. § 114-406(m).

At the risk of redundancy but with the view that its repetition here will give a direct, ready reference to matter which is regarded as pertinent to a consideration of one of the two enumerations of error on the present appeal, we set forth here a portion of Division 1 of the opinion on the former appeal, as follows: 'While there was evidence which would have authorized a finding that the claimant had suffered a 100% loss of use of his right arm, there was also evidence which would have authorized a finding of a lesser percentage of the loss of use of that member. The deputy director, in her findings of fact, stated 'that observing claimant at the hearing, wearing a cast on his right hand, anyone could see he was unable to pursue the occupation of mechanic without use of the right hand,' and she thereafter awarded compensation to the claimant 'based upon the above findings of fact' as for a total loss of use of his right arm. It is obvious that the deputy director in entering her award based her conclusions therein, in part at least, upon the theory that she was authorized to award claimant compensation for the loss of use of his arm because he could no longer work as a mechanic or on the job at which he had been working for 39 years. To this extent the award was based on an erroneous theory of law contrary to the principles enunciated in the cases cited, and the award of the full board which simply adopted the award of the deputy director should have been reversed with direction that an award either granting or denying compensation and based upon a consideration of the foregoing legal principles be entered.'

On the former appeal in this court, one of the findings of the deputy director according to the record in that case, of which this court takes judicial notice, was as follows: 'I further find claimant worked to about December 12, 1964, and has not worked since; that he cannot use the little and ring fingers of the right hand, and has pain up in his right arm; that observing claimant at the hearing, wearing a cast on his right hand, anyone could see he was unable to pursue the occupation of mechanic without use of the right hand.' (Emphasis supplied). This is the finding of fact referred to in the quoted portion of the opinion in 114 Ga.App. 639, 152 S.E.2d 423, supra. In that case a majority of the full board made the findings of fact and award of the deputy director its findings of fact and award.

The direction above indicated in the opinion in 114 Ga.App. 639, 152 S.E.2d 423, supra, was by remittitur and judgment of the lower court transmitted in due course to the full board.

The full board on March 23, 1967, in the present case, made and entered its findings of fact and award in favor of the claimant. Its findings of fact and award were introduced by the following statement and ruling: 'The above styled case having been remanded to the board with directions that an award be issued in accordance with the Court of Appeals decision in this matter. Therefore the award of the deputy director dated August 19, 1965, is hereby set aside and the following findings of fact made and entered herein.'

One of its seven findings of fact is as follows: 'The full board further finds that claimant worked to about October 12, 1964, and has not worked since; that he cannot use the little and ring fingers of the right hand and has pain up his right arm; that observing claimant at the hearing wearing a cast on his right hand anyone could see he was unable to pursue gainful employment without the use of the right hand.' (Emphasis supplied.)

Another of the findings of the full board is as follows: 'The full board therefore finds that claimant has a 100% loss of use of the right arm and is entitled to compensation at the rate of $37 per week, beginning December 12, 1964, and continuing for a period not to exceed 210 weeks (10 weeks under Georgia Code Section 114-404 and 200 weeks under Georgia Code Section 114-406(m), or until there is a change in condition. He is further entitled to all reasonable and necessary medical expenses incurred by reason of his accident and injury, not to exceed the statutory limit of $2,500.' Thereupon award was made accordingly by the full board.

It is to be inferred that the findings of fact and award of the full board of date March 23, 1967, were predicated solely upon a review of the original transcript in Case No. 42304. On appeal to the lower court the award of the full board of date March 23, 1967 was affirmed and made the judgment of the lower court on July 6, 1967, and from that judgment the present appeal was had by the appellant; notice of appeal providing 'The clerk will omit nothing from the record. The transcripts of evidence and proceedings before the Deputy Director and Full Boards now on file with the clerk are to be included in the record on appeal.'

There are two enumerations of error on the present appeal. The first enumeration of error is as follows: 'The Superior Court erred in making the judgment of the full board the judgment of the court (R-107-108) since the award of the Full Board (R-101-103) was predicated on the erroneous legal theory that the claimant's industrial handicap, i.e., his inability to pursue gainful employment or return to his job or the failure of the employer to offer him a job which would not require the use of his right hand, were determinative in rating his disability for an injury compensable under ...