U.S. Fidelity & Guaranty Co. v. Gentile

• Decision Date: 18 March 1975
• Docket Number: No. 50266,No. 2,50266,2
• Citation: 134 Ga.App. 318,214 S.E.2d 406
• Court: Georgia Court of Appeals
• Parties: UNITED STATES FIDELITY & GUARANTY COMPANY v. Nancy P. GENTILE

Page 406

214 S.E.2d 406

134 Ga.App. 318

UNITED STATES FIDELITY & GUARANTY COMPANY v. Nancy P. GENTILE.

No. 50266.

Court of Appeals of Georgia, Division No. 2.

March 18, 1975.

Hopkins, Gresham & Whitley, H. Lowell Hopkins, Atlanta, for appellants.

Troutman, Sanders, Lockerman & Ashmore, William H. Schroder, Jr., Atlanta, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

In undertaking to decide this Workmen's Compensation appeal we find ourselves in the same position as the superior court judge, Hon. Winebert Dan Flexer, who remanded the matter to the State Board. He concluded his opinion thusly: 'This court finds that the Board's award in this case does not contain the findings of fact required by law, and that the court therefore is unable to intelligently review the remainder of the cause and those contentions therein that the Board applied an erroneous theory of law in making its award.' (R. 128).

Judge Flexer ruled on this case in such a manner that we deem it appropriate to adopt his opinion in toto. For typographical convenience and to facilitate reading thereof we do not use quotation marks but copy it as follows:

This appeal from the award of the State Workmen's Compensation Board in favor of the employer-insurer on de novo review, the Deputy Director having previously entered an award on behalf of the widow-claimant, came on for a hearing in this Court. Counsel for both parties appeared and orally argued the issues in the appeal. Widow-claimant's counsel contended that the Board had made no findings of fact in its award, as required by Code § 114-707, and that therefore widow-claimant could not intelligently prepare her appeal, being particularly confused as to whether or not the Board had decided the case on an erroneous legal theory, such as erroneously using the 'natural inference test' for the first time in a heart attack case against a claimant where the latter had competent medical testimony in her favor and such as erroneously applying the 'preponderance of the evidence' standard by counting the number of qualified expert medical witnesses appearing for each party. Employer-insurer's counsel contended that there did exist sufficient findings of fact in the award, those findings being to the effect that the preponderance of the evidence burden had not been carried and that there did not exist an accident which arose out of the deceased's employment. Counsel also contended that the award of the Board should be affirmed under the 'any evidence' rule.

This case is, loosely termed, a heart attack case, and the factual issues in such a case are (1) whether or not the employee suffered a heart attack or similar 'accident' as that word is construed under the Workmen's Compensation Act, and if so (2) whether or not the attack or accident was caused by, or accelerated by, or contributed to by the deceased's exertion, however slight, while engaged in his work, or whether it was caused solely by the natural progression of a pre-existing physical condition completely unrelated in cause to his work. See Fireman's Fund American Insurance Co. v. Hester, 115 Ga.App. 39, 153 S.E.2d 622 (1967); Hoffman v. National Surety Corp., 91 Ga.App. 414, 85 S.E.2d 784 (1955). It is the duty of the Board to weigh the evidence, decide what are the true facts, and make findings of the specific facts and on the material issues in the case.

' The Georgia Workmen's Compensation Act (Code § 114-707) requires that an award of the Board of Workmen's Compensation shall be accompanied by a statement of findings of fact upon which it is made in order that the losing party may intelligently prepare his appeal and that the cause may thereupon be intelligently reviewed. To fulfill this requirement, the findings of fact must consist of a concise but comprehensive statement of the cause and circumstances of the accident as found to be true by the Board of Workmen's Compensation and similar findings of fact upon any material issue in the case. See Atlanta Transit System v. Harcourt, 94 Ga.App. 503, 95 S.E.2d 41; Southeastern Exp. Co. v. Edmondson, 30 Ga.App. 697(1), 119 S.E. 39; American Mutual Liab. Ins. Co. v. Hardy, 36 Ga.App. 487, 490, 137 S.E. 113; Noles v. Aragon Mills, 110 Ga.App....