Turner v. Baggett Transp. Co.
| Decision Date | 16 April 1973 |
| Docket Number | No. 3,No. 48029,48029,3 |
| Citation | 128 Ga.App. 801,198 S.E.2d 412 |
| Parties | Ray C. TURNER v. BAGGETT TRANSPORTATION COMPANY |
| Court | Georgia Court of Appeals |
William R. Parker, Atlanta, for appellant.
Mitchell, Pate & Anderson, James W. Wimberly, Jr., Atlanta, for appellee.
Syllabus Opinion by the Court
R. C. Turner was employed by Baggett Transportation Company as a truck driver. While he was unloading materials packaged in cardboard boxes one of them fell and struck him near the outer corner of the left eye. The accident occurred on July 10, 1969. On July 16, he went to Dr. Kutner, employed by Baggett, for examination and treatment. Dr. Kutner found that vision in the left eye was very poor, though normal in the right eye. He found a condition in the eye which, in his opinion, resulted from diabetes over a period of 15 to 20 years, but testified that the blow to his head from the falling box 'may have caused complicating hemorrhages,' and that even a minimal injury can accelerate a condition brought on by diabetes and bring about retinal changes from which sight is impaired or lost.
Vision in the left eye was very small in September and virtually nonexistent by the end of November or early December. Dr. Kutner had referred the claimant to Dr. W. S. Hagler, a specialist in retinal disorders, and written opinions were obtained from him on some three or four occasions, directed to Dr. Kutner.
The claimant began having trouble with the right eye about the time he lost the vision of his left, but it cleared. He continued to work until the first part of January, 1970, when Baggett notified him that he was being released because his vision was such that it was no longer safe for him to work on the job. He contested the dismissal, contending that his right eye was good and that he was perfectly able to continue on the job. The matter went to arbitration under provisions of the union contract with Baggett, and the arbitrator found with claimant, requiring Baggett to keep him on the job. However, in February he was having more difficulty with his right eye, and about mid-February he resigned.
It appears that prior to his resignation he had been on a deer hunt, during which he had climbed up about 20 feet in a tree for a deer stand, and fell out of it, breaking an ankle. Vision in the right eye deteriorated also.
About a year later he asked for a hearing on the basis of a change in condition, urging that he had lost the vision of both the right and left eyes, and that, in addition to the compensation being paid for loss of sight in the left eye, he was entitled to additional compensation for loss of it in the right eye, or for total blindness.
The single hearing director made findings that the loss of vision had not occurred from an accident, but from diabetes, and that it was not compensable. On appeal to the full board new findings were made to the contrary, and an award of compensation entered. The matter was appealed to the superior court, where, after hearing, the findings and award were set aside and the matter remanded to the board for further findings and award after consideration of the four letters written by Dr. Hagler to Dr. Kutner, which had been tendered in connection with Dr. Kutner's deposition, 1 taken after the board hearing, and objected to on the ground that they were hearsay and that the employer had no opportunity to cross examine the doctor. The deposition, with the letters from Dr. Hagler, attached, was filed with the board for consideration in making findings and award, but no ruling on whether the letters of Dr. Hagler were to be admitted or considered appears, nor can it be determined from the findings and award of the single director or of the full board whether they were considered.
The superior court set aside the findings and award and remanded the matter to the board for further consideration, specifically with reference to the 'exhibits to the deposition of Dr. Kutner.' Claimant appeals. Held:
1. When the superior court set aside the findings and award and remanded the matter to the board for further findings and award, it lost jurisdiction, and its order was final and appealable. American Mut. Liability Ins. Co. v. Kent, 197 Ga. 733, 30 S.E.2d 599; General Motors Corp. v. Martin, 119 Ga.App. 279(1), 167 S.E.2d 211; Georgia Cas. & Sur. Co. v. Bloodworth, 120 Ga.App. 313(1), 170 S.E.2d 433. Cf. Martin v. General Motors, 224 Ga. 677, 164 S.E.2d 107. In this posture a certificate of appeal is not required for seeking a review of the judgment of the superior court.
2. We have made a careful review of the entire record, and conclude that the findings of the full board are supported by evidence in the record (though there is evidence which would have authorized a contrary finding, such as was made by the single hearing director), and these findings support the award as made, except as is indicated in Division 4.
The letters of Dr. Hagler were subject to the objection made, and should have been excluded. Moore v. State, 221 Ga. 636(5), 146 S.E.2d 895; Augusta Factory v. Barnes, 72 Ga. 217(6); Tompkins v. West, 123 Ga.App. 459(4), 181 S.E.2d 549; Zurich Ins. Co. v. Zerfass, 106 Ga.App. 714, 719, 128 S.E.2d 75; Tifton Brick & Block Co. v. Meadow, 92 Ga.App. 328(8), 88 S.E.2d 569. And see Sabo v. Futch, 227 Ga. 216, 179 S.E.2d 763; Cook v. Clarke Chevrolet Co., 41 Ga.App. 389(5), 153 S.E. 88; Brooks v. Sessoms, 47 Ga.App. 554(2), 171 S.E. 222. His deposition could have been obtained.
3. Where there was legal evidence in the record supporting the findings and award made by the board, the superior court was not authorized to remand the matter for further findings or award. Whitfield v. American Mut. Liability Ins. Co., 44 Ga.App. 478, 162 S.E. 297; Travelers Ins. Co. v. Wofford, 81 Ga.App. 421(1), 58 S.E.2d 853; Womack v. United States F. & G. Co., 85 Ga.App. 564(2b), 69 S.E.2d 812; Butler v. Fidelity & Cas. Co. of N.Y., 88 Ga.App. 620(2), 76 S.E.2d 813. The rule has special application where the remand is made for the purpose of considering evidence which is inadmissible.
Another exhibit attached to Dr. Kutner's deposition was a medical report from Dr. Kutner to the board, dated October 22, 1969. The certificate of the secretary of the board indicates that all of the exhibits to Dr. Kutner's deposition 'were not received in the office of the State Board of Workmen's Compensation until May 11, 1972, being subsequent to the appeal of the employer and the forwarding of the record . . . to the superior court.' How this could have...
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